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The First Amendment and the Web: The Internet Porn Panicand Restricting Indecency in CyberspaceDorothy ImrichMullinDepartment of CommunicationUniversity of California, Santa BarbaraCopyright 1996, Dorothy Imrich Mullin. Used with permission.AbstractCiting government interests in making "the new Internet and informationsuperhighway as safe as possible for kids to travel" and in keepingcomputer networks from turning into a "red light district" (comments madeby Senator Jim Exon, D-NE, 1995), Congress recently passed the sweepingCommunications Decency Act of 1996 that (among other things) makes it acrime to knowingly "by means of a telecommunications device [makeavailable] any comment, request, suggestion, proposal, image, or othercommunication which is obscene or indecent...[to any person] under 18years of age" (47 U.S.C. Section 223(a)). This bill, now signed intolaw, extends already existing prohibitions on legally "obscene" materialsand child pornography to include a ban on "indecent" content as well. Inthe wake of this broad ban, discussions have raged both online and in thepress about free speech, online pornography, and the protection ofchildren. This presentation is a discussion of the legal and social science issuescurrently surrounding content regulation of the world wide web and theInternet as a whole, with an emphasis on the indecency ban. Specifically,I address concerns that have led to legislation, including 1) theperceived pervasiveness of online pornography (i.e., what has been calledthe "porn panic"); 2) the perceived intrusiveness of online communicationand its accessibility to children and adolescents; and 3) the potentialfor societal "harms" to children or adults following exposure to onlineindecency. In each of these areas, I examine the role of social science,both in fuelling the porn panic and in potentially informing the policydebate, and I address the broad First Amendment implications of(inappropriately) applying broadcast regulation standards to onlinecommunication. An old debate in America has been recently renewed and extended in thewake of rapidly changing technology. The perceived proliferation ofsexually explicit messages across computer networks has reigniteddiscussion of adults' right of access to sexual messages versus thepossible contribution of such exposure to antisocial attitudes orbehaviors (e.g., discrimination against women, sexual assault). Moreover,the easy point-and-click nature of many online media, including the WorldWide web, has given rise to the additional concern about the availabilityof sexually-oriented materials to an audience of children and adolescents.Media attention to a (now seriously discredited) study (Rimm, 1995)proclaiming widespread and especially deviant pornography on the"information superhighway" has particularly fuelled these concerns. WhatHarper's Magazine has called "the Internet porn panic" ("HowTime," 1995,p. 11) has resulted in policy makers, parents, lawyers, feminist scholars,and social scientists all arguing about how to (or whether to) deal withoffensive content on computer networks. Traditionally, government attempts at regulation of non-electronic sexualmaterials have encountered difficulty in the courts when faced with FirstAmendment challenges. In fact, apart from prohibitions on strictly"obscene" materials, that is, materials that do not receive FirstAmendment protection if they meet the legal definition of obscenityoutlined in Miller v. California (1973),1 the courts have not upheldoutright bans on sexually explicit material in books (e.g., AmericanBooksellers Association v. Hudnut, 1986; Bantam Books v. Sullivan, 1962;Butler v. Michigan, 1957), magazines (e.g., Pope v. Illinois, 1987), orfilms (e.g., Miller v. California, 1973; Paris Adult Theatre I v. Slaton,1973). Indeed, in Roth v. U. S. (1957), Justice Brennan stressed theimportance of protection for sexual expression: The portrayal of sex, e.g., in art, literature and scientificworks is not itself sufficient reason to deny material the constitutionalprotection of freedom of speech and press. Sex, a great and mysteriousmotive force in human life, has indisputably been a subject of absorbinginterest to mankind through the ages; it is one of the vital problems ofhuman interest and public concern (354 U. S. at 487). Inasmuch as sexual materials on the Internet or BBSs are, like X-ratedmovies and sexually-explicit publications, available for consumption byaudience members who seek them, a similarly strict First Amendmentstandard of protection for non-obscene sexual materials might easily beapplied to computer networks as well. However, many parents and legislators have asserted that special concernsabout online sexual and other offensive communication call for lessstringent First Amendment protection and a need for regulation. In fact,citing government interests in making "the new Internet and informationsuperhighway as safe as possible for kids to travel" (Lewis, 1995, p. 10)and in keeping computer networks from turning into a "red light district"("Junior and cyberspace," 1995) (comments made by Senator Jim Exon, D-NE,1995), Congress recently passed the sweeping Communications Decency Act of1996, which (among other things) makes it a crime to knowingly "by meansof a telecommunications device [make available] any comment, request,suggestion, proposal, image, or other communication which is obscene orindecent...[to any person] under 18 years of age" (47 U.S.C. Section223(a)). Now signed into law (but facing Constitutional challenge in theD. C. Circuit courts), this act extends already existing prohibitions onlegally "obscene" materials and child pornography to include a ban on"indecent" content as well.2 This paper is a discussion of the legal and social science issuescurrently surrounding content regulation of the world wide web and theInternet as a whole. Specifically, I address the widespread concerns thathave led to online indecency restrictions, including 1) the perceivedproliferation of online pornography (the "porn panic"); 2) the perceivedintrusiveness of online communication and its accessibility to childrenand adolescents; and 3) the potential for societal "harms" to children oradults following exposure to online indecency. In each of these areas, Iexamine the role of social science, both in fuelling the panic and inpotentially informing the policy debate, and I address the broad FirstAmendment implications of (inappropriately) applying broadcast regulationstandards to online communication. The Internet Porn PanicThe obscenity arrest and conviction of California private BBS operatorsCarleen and Robert Thomas (U.S. v.Thomas, Federal District Court of Tennessee, 1994), who put visualimages online of, among other things, acts of bestiality, for many broughtto attention the existence of sexually explicit materials on computernetworks and the legal implications of dealing with these materials.Legal scholars took issue with the applicability of current law to theemerging new media (see e.g., Corn-Revere,1994; Reske,1994; Sergent,1994; Smith,1994). Network servers expressed concern about liability for contentpassing through their domains. One university, fearing bad publicity aswell as prosecution, even attempted to ban all the "alt.sex.*" newsgroupsfrom its Internet connection (widespread protest and First Amendmentchallenges from the student community, the American Civil Liberties Union,and the Electronic Frontier Foundation led to the faculty senate restoringaccess to these newsgroups) (Elmer-DeWitt,1994). Among some religious groups, the Thomas case was said "to openthe eyes of both the computer industry and Christians to the growingavailability and acceptance of sexually explicit images over the emerginginformation superhighway and the eroding control of parents over theinformation their children take in" (Zipperer,1994, p. 42). The initial proposal made by Senators Jim Exon (D-NE) and Slade Gorton(R-WA) for the Communications Decency Act (also known as the "Exonamendment" to telecommunications reform bill S. 652) sparked heatedarguments online and sensational coverage in the popular press. A numberof writers in computer magazines decried censorship (see e.g., Abernathy,1995a; Meeks,1995; Norr,1995), although some also expressed a need for online decency (Metcalfe,1995a, 1995b). Legal commentaries appeared in media industry tradejournals (e.g., Corn-Revere,1995a), and major American newspapers and news magazines covered theconstitutional controversy over the bill (e.g., ElNasser, 1995; Levy,1995a; Lewis,1995a; Lohr,1995; Rich,1995; Wilson,1995). Many journalists emphasized the "raunchy" aspects of sexual materials thatcan be found on the Internet or in private BBSs. For example, a coverstory about online sex in USA Today featured a color photo ofsexy (albeit clothed) computer images and their corresponding web linkstogether with the caption, "The Internet's seamy side" (L. Miller,1995, p. 1A). A New York Times headline declared that"Despite [the bill's] plan for cooling it off, cybersex stays hot" (Lewis,1995a, p. 10). The Wall Street Journal reported that onepornography database shut down due to heavy traffic downloading"electronic erotica" (Sandberg,1995). Newsweek, with a focus on the issue of children'saccess, ran "No place for kids? A parent's guide to sex on the Net" (Levy,1995b, p. 47) with a related article's headline declaring that "withjust a computer and a modem, techno-savvy kids have access to a plethoraof cybersleaze" (p. 48). Perhaps the most prominent press attention to the sex in cyberspace debate(and resulting in the most fury online) came with the June 26, 1995release of Time magazine (its July 3, 1995 issue). Alsofocussing on the concern about sexual images available to children,Time magazine ran a cover story entitled "Cyberporn" (Elmer-DeWitt,1995), with the cover photo illustration depicting a horrified child'sface in the light of a computer screen and a headline exclaiming that "Anew study shows how pervasive and wild it really is. Can we protect ourkids--and free speech?" Full-page photo illustrations accompanied thearticle, including a naked man embracing a computer and a child beinglured into a dark alley by a man with a lollipop image on a computerscreen. Widespread discussion had already been going on online, both in the network newsgroups (e.g., alt.censorship, alt.comp.EFF.talk) and at sites on the world wide web (see e.g., ), largely about the (un)constitutionality of the Exon bill and government attempts at content regulation in general. However, upon its release the Time cover story itself (Elmer-DeWitt, 1995) came under particular attack online (see e.g., HotWired's web site at ). Critics were enraged that in his story, Philip Elmer-DeWitt relied upon the findings and generalizations of a "Carnegie Mellon study" entitled "Marketing Pornography on the Information Superhighway" (Rimm, 1995) that had been and continues to be intensely criticized by marketing researchers (Hoffman & Novak, 1995a, 1995b), a prominent computer scientist (Reid, 1995), and legal scholars with research backgrounds (Godwin, 1995; Post, 1995). The study proclaimed vast amounts and particularly deviant forms of online pornography, and the Time story touted its findings as having widespread implications for public concern and policy. The Rimm Study and the Porn PanicRigorous social science can contribute to informed social debate andpublic policy, and popular news sources like Time can givecredibility and exposure to important findings. However, substandardresearch that also finds its way to such exposure and credibility canresult in clouded debate. The latter, I believe, is the case with Rimm'sstudy. In a report published in the Georgetown Law Journal (anon-peer-reviewed legal journal), Marty Rimm (1995)examined the download patterns of images from a number of private, self-proclaimed "adult" BBSs (i.e., BBSs that require payment and proof of agebefore subscribing). He also examined the number of image postings to asmall subset of Usenet newsgroups. Despite his examination of only alimited portion of computer network activity, Rimm made a number ofalarming assertions about online pornography in general that researchershave since challenged as unsupported, misleading, or outrightmisrepresentations of his data. One now famous (mis)statement about the prevalence of computer pornographyis Rimm's conclusion that "83.5% of all images posted on the Usenet arepornographic" (Rimm, 1995,p. 1994). This proportion of Internet pornography could not appearcredible to anyone familiar with the Internet (see Levy,1995a). The percentage actually refers to numbers of images posted toa narrow subset of 32 Usenet newsgroups called "alt.binaries."Specifically, Rimm found that 83.5% of the images posted to 32"alt.binaries" newsgroups were posted to the 17 of those newsgroups thatRimm labelled "pornographic" (Post,1995). However, even this is likely an inflation, given that Rimm doesnot disclose how he counted "images" (many image files consist of multipleposts), he does not discuss how he determined which newsgroups were infact "pornographic" (in a separate table of the forty most accessednewsgroups, he labelled "alt.binaries.pictures.supermodels" aspornographic), and he does not examine whether all the images posted tothose groups were actually even sexually explicit (Hoffman& Novak, 1995b). Both Hoffman and Novak (1995b)and Post (1995)maintain that the 83.5% figure is grossly misleading. Using Rimm's ownfigures, they point out that the part of the Internet that involves Usenetnewsgroups represents only 11.5% of total Internet traffic, and of that,only about 3% (by message count) is associated with newsgroups containingpornographic imagery. Thus, they conclude that less than one-half of 1%(3% of 11.5%) of messages on the Internet is associated with newsgroupsthat contain pornography (and many of the messages in these "pornographic"newsgroups are text files that may not even be sexually explicit).Although we do not have such data about sexual explicitness in theremaining 88.5% of the non-Usenet Internet traffic (e.g., world wide webuse), it is fair to say that only a small percentage of pornographicimagery, relative to non-pornographic content, occurs in the Usenetnewsgroups. Nevertheless, the misrepresented 83.5% is what Rimm listed inhis summary of findings (and what Time publicized). Interestingly, the 83.5% figure itself comes from the small part of Rimm'sstudy that deals with readership statistics of selected Usenet newsgroups.Most of Rimm's data concerns download patterns on selected private "adult"BBSs. Nevertheless, even with this data, Rimm obscures importantmethodological procedures: he does not make explicit how his sample ofadult BBSs was chosen to be "representative" (p. 1876), he confuses theactual numbers of image descriptors that were examined (917, 410 versus292,114, among others), and he professes both "reliability" and "validity"for his categorizing procedure without providing any data for support (Hoffman& Novak, 1995b; see also Godwin,1995). Furthermore, in his conclusions Rimm repeatedly conflates the adult BBSdata with the Usenet data, and then exacerbates this problem bygeneralizing to all of the Internet (see Hoffmanand Novak, 1995b, for a number of egregious examples). Oneparticularly outlandish claim is that "after a year of exploring theInternet, Usenet, world wide web, and computer Bulletin Board Systems(BBS), the research team discovered that one of the largest (if not thelargest) recreational applications of users of computer networks was thedistribution and consumption of sexually explicit imagery" (Rimm, 1995,p. 1861), yet Rimm does not examine "distribution" in his study andonly examines "consumption" in adult BBSs. He provides no evidence forhis sweeping conclusion about all these network resources. Despite online criticism and attempts to otherwise publicize problems withthe Rimm study (see e.g., Godwin,1995; Lewis,1995b; 1995c), many journalists have expressed concern that theTime coverage of Rimm's study, together with "the woeful faceof the child on the cover" (Webb, 1995,online), has overly alarmed parents and politicians and has generally"fed the Internet porn panic" ("HowTime," 1995, p. 11). Indeed, when Sen. Grassley (R-IA)introduced his own Protection of Children from Computer Pornography Act of1995, which would prohibit the transmission of any sexually explicitmaterials via computer networks, he did so with passionate rhetoricinspired by the Time article, reiterating the now infamousimplication that 83.5% of all computerized images available on theInternet are pornographic (Grassley,1995). Law professor and anti-pornography feminist Catharine MacKinnon(MacKinnon,1995) also featured the "over eighty percent" (p. 1964) figure in herresponse to the Rimm study, and she extended Rimm's argument aboutaberrant sexual behaviors, claiming that "the most violent anddehumanizing materials" (p. 1964) are the most frequent. "Pornography incyberspace," she argued, "is pornography in society--just broader, deeper,worse, and more of it" (p. 1959). Thus, although the Rimm study may have lost authority in some academiccircles and online, in much of the public and political discourseregarding cyberporn, the "83.5%" figure and the conviction that materialis particularly "deviant" seem to continue to serve as central features topleas for government regulation and protection for children.4 In a recentlocal editorial, activists Santa Barbara County Citizens AgainstPornography quoted Rimm's conclusions from Time in order toargue that computer networks are rife with images of pedophilia, bondage,bestiality, and urination (Goss &Picks, 1995). Unfortunately, where rigorous social science might have served toillumin