Internet pornography - 21 March 1997

Last Wednesday morning, two small armies of chanting or bawling protestors were marching up and down outside a building in Washington that is not often used as a stamping ground for demonstrations.

It has been variously called the largest marble building in the world, a classical building aiming at grandeur and verging on grandiosity, and it always looks to me like the most monumental Greek wedding cake ever baked.

We are looking at the truly awesome building of the Supreme Court of the United States, the one American institution that more than any other decides (you could say) the public behaviour of the American people.

You can imagine how bizarre it seemed on Wednesday, from early in the morning these little disputing armies gathered, waving banners, one side screaming, “Let the law protect us” and “Porn poisons kids”. The other side, with noticeably more professionally-printed placards, the largest of which proclaimed, “The First Amendment includes the internet”.

Heavens! Did the founding fathers who wrote the Constitution have something to say about pornography on the internet? Obviously not. But it’s the job of the nine justices of the court to say what they could have said, how they would probably have ruled if the internet of the day, the newspapers, had printed pornographic drawings or invitations that might be seen by children.

As a matter of record, I can tell you now that there were in colonial days and throughout the long history of the Republic, until the 1930s, very strict laws punishing anything – eventually spelled out in a law, incidentally a British law of 1857 – which said, "obscene matter, whether it be in writing or by picture, effigy or otherwise". And neither the colonials, nor the Victorians in either country wasted time sharpening fine points about what constituted obscenity. They knew it and they punished it promptly.

But during the past 60 years or so, the justices have never agreed unanimously about obscenity. There are statutes, of course, but they’re always being challenged, and the standard agreed on by the courts has staggered from one definition to another, identifying obscenity as "that which has the intention of corrupting morals". Through most of the 19th Century then, making it mean anything tending to the corruption of minors. That lasted till the 1930s when in this country it came down to the definition through which James Joyce’s Ulysses was able to wriggle through into the light of day.

That definition over which Ulysses triumphed was "anything that would offend or corrupt the average sensual man". Just to make things clear to us laymen, the conquering judge remarked that the average sensual man is the moral equivalent of the reasonable man in the law of torts. Is that so?

After that, there was a vague agreement on both sides of the Atlantic that everything depended (if you wanted to get your erotic stuff through the courts and the mail) depended on its literary quality. Not very helpful, since literary critics squabble over what’s literature more than politicians fight over what’s good for you and me.

And then the definition was adjusted to allow only what was "socially redeeming", which proved hopeless to apply.

But once Europe, the Swedes in particular, blew all definitions apart and started filming at first timidly explicit sexual scenes, the Supreme Court threw in the towel and all but admitted there could be no national, no federal, definition of obscenity. They passed the buck to the states, which the Constitution allows them to do when there’s no statement of federal law.

They said each state had the right to forbid something that the community thought was obscene. That’s when the whole legal effort to define and confine obscenity broke down. What is the community? A county, a city, a village, Park Avenue, Belgrave Square, Greenwich Village, Tottenham Court Road, Little Piddletrenthide, residents in their 20s or 60s?

The last well-remembered definition of obscenity by a Supreme Court Justice, coined by a man now retired, said, “I can’t define it, but I know it when I see it”, which was not much help.

Today anything, however gross, goes, in print, on the radio, most startlingly and uncensored, on television. So why do people still bring suits and take them doggedly all the way up to the Supreme Court?

On Wednesday, the court met to hear arguments for and against a suit brought by a coalition of several groups – civil liberties buffs, advertisers, chambers of commerce, computer manufacturers – to have the court declare unconstitutional an Act of Congress sponsored by the administration, passed only last year, called the Communications Decency Act of 1996.

The clause of this bill that got it taken all the way up to the Supreme Court made it a crime to display on the internet indecent material in a manner available to a person under 18 years of age.

The bill came about when in the past year or so television mostly made it common knowledge that the internet, this new worldwide source of knowledge, offered among its enormous variety of aids to learning, a worldwide service to accommodate the private pleasures of, for instance, middle-aged men who like to hire small boys.

Dare I, in this progressive age, call such men perverts? A great majority of the Congress thought so, and Mr Clinton has been criticised for not helping to get this law on the books sooner.

Well apart from the universal availability through the internet of small children for sexual exploitation, the bill would also make it a federal offence to show sexually explicit pictures, films, magazines, to air sexual conversations that might be seen and heard by adolescents.

The whole point of this case is what it might do to a child with access to a computer. The law obviously includes all such stuff that can be seen by adults, and we’ve come so far in reverence for free speech that even obscenity has been declared by the Supreme Court to be protected by the First Amendment when it’s going on between adults.

What fired up a lot of members of Congress and their constituents was the demonstrable and well-demonstrated fact that a child can now get access to Penthouse and Hustler and worse at the click of a mouse.

The exchanges between the rival lawyers and the justices were lively and understandably sceptical. This, I believe, is the first time the Supreme Court has had to adjudicate what should be done about a thriving worldwide market in anything to which a child has access at the flick of a thumb.

One or two of the justices frankly seemed to concede that it couldn’t be done. One said, “If I spent my time monitoring my 16-year-old’s use of the internet, I’d know even less about this case than I know today.” Another with a young daughter wondered if this law wouldn’t make criminals out of parents with computers on which the Internet is available. And one judge was well aware, probably from his own children, that a very popular feature available everywhere on the internet is the conversation of teenagers exchanging sexual experiences, real or imagined.

Of course the justices wanted to know what technology is available now that can instantly block out offensive material or display a sudden warning of what’s coming up.

At the moment, though nobody on either side quite said it, the only certain way to keep an inquisitive child from seeing it would be to sit with him or her or stay in the same room 24 hours a day.

In fact this law got to the Supreme Court of the United States because the lower courts it had gone through agreed that there does not exist any technical way of preventing even well-intentioned, cooperative exhibitors on the Internet from finding themselves criminally liable.

Well whichever way it goes, it will come down in the forum of public argument to the old question: does watching violence and rough sex repel the young or tempt them to do likewise? We’ve been arguing this since the 1920s when a very raunchy period in Hollywood movies caused the movie industry itself to set up what it called the Legion of Decency with an elaborate system of rules of propriety I won’t go into. They would certainly be ruled unconstitutional today.

There’s no way of guessing for sure how the court will rule in this case. Normally it takes them about three months to make up their minds. Of course during that time, they’re making up their minds on a bunch of other cases. I had the feeling that more than one or two of them already knew how they’d rule – a suspicion that reminded me of the early experience of the great Mr Justice Holmes. He went on the court when he was in his 60s and kept to the habit that had served him well for 20 years on the Supreme Judicial Court of Massachusetts.

He listened to the arguments and if he’d been picked to write up the ruling, he went home and did it at once. His legal thinking was just as deep as it was quick, and pondering for weeks on the one hand, on the other hand, was not in his nature. So he’d have his judgment ready at an early meeting of the Supreme Court. He produced it and everybody agreed it was brilliant. Brilliant, but he soon gathered that he was acquiring in Washington a reputation for being superficial, a touch glib.

So ever afterwards when he was doing the writing, he listened as patiently as ever, he went home and wrote up his opinion at once. Then he put it in the bottom drawer of his desk. Two, three months later, he was ready to read it to the court. His opinions were always applauded as being tremendously thoughtful and very wise.

The only difference in the reception of his rulings, he told a friend, was that his later opinions were “aged in the wood”.

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