Earlier this year, I criticized the U.S. government’s planned crackdown on obscenity — either it would be futile, because people could still get all the porn they want from off-shore sites, or the government would have to go considerably beyond just prosecuting pornographers:
[One possible outcome of the visible futility of the obscenity crackdown may be that t]he government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?” So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.
It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond (since even that would take up too much time, and would let the porn sites just move from location to location every several weeks).
Sure, that sounds like a violation of First Amendment procedural rules, even given that obscenity law is substantively valid. Sure, that would make it easier for the government to put all sorts of other sites on the list. Sure, it’s a substantially more intrusive step than any of the Internet regulations we’ve seen so far, and is substantially more intrusive in some ways than virtually any speech restriction in American history (I say in some ways, not in all ways, since it would have a limited substantive focus — but the procedure would be unprecedently restrictive, and First Amendment law has always recognized the practical importance of procedure). But it’s the only approach that has any hope of really reducing the accessibility of porn to American consumers.
Well, it turns out that some Australian lawmakers — seemingly encouraged by a left-wing Australian think tank — are indeed suggesting nationwide filtering:
ALL internet service providers would be forced to block hard-core pornography reaching home computers under a radical plan to protect children being pushed by federal Labor MPs.
Mark Latham’s office is understood to have shown “strong interests” in controls that would automatically filter out violent pornography such as images of rape, torture, bestiality and coprophilia.
A confidential paper from the left-wing think tank the Australia Institute, which is now being considered by the Opposition Leader’s office, proposes that ISPs install compulsory filtering programs so only adults who can verify their age could view X-rated material.
Labor’s communications spokesman Lindsay Tanner, leading ALP women including Carmen Lawrence, and pro-family values backbench MPs are in favour of a tough new regime that would shield children from online porn.
The recommendation follows moves in Britain, where the largest ISP, British Telecom, began blocking customers in June from accessing child pornography sites.
The Australia Institute’s executive director Clive Hamilton said Labor would benefit from a social wedge issue by cracking down, because inaction by the Howard Government “opens it up to the charge it’s soft on porn”.
“As it is responsible for a hopelessly ineffective system of regulation of internet pornography, yet frequently expresses concern for the moral dangers facing children, the Howard Government is vulnerable on this issue,” the paper says.
Dr Lawrence said the current system of regulation of online porn “clearly isn’t working”.
The Australia Institute recommendation “is a proposal that has merit because it gets to the problem at the source and it would make it much harder for the industry to duck responsibility”, she said. . . . [T]he policy proposal — supported by 93 per cent of parents of 12 to 17-year-olds according to a Newspoll survey — is expected to face some opposition from libertarians and frontbenchers including Kate Lundy, the Opposition spokeswoman on information technology.
The proposal isn’t exactly what I described in my original post: The law would require ISPs only to filter material from those users who couldn’t “verify their age”; and it apparently covers not all sexually themed material, but only what many may see as the most reprehensible subset.
But I don’t think it takes much paranoia — or even much imagination — to assume that once government-mandated nationwide filtering is imposed on one level, there’d be considerable pressure to extend it. After all, if some porn is illegal even for adults to get, the argument would go, why shouldn’t service providers be required to filter it out? We already mandate provider-based filtering of material aimed at children, and this is just a small extra step, since it’s only going after illegal material (and material that, of course, might fall into the hands of children even if it’s initially downloaded by an adult).
True, the filtering may be overinclusive, because it will inevitably block even some material that, on closer examination, would have proved to be constitutionally protected. But we’ve already crossed that bridge in the earlier proposal, haven’t we? So why not take this a step further? The slippery slope is a real phenomenon, in legal and political systems that are heavily influenced by notions of precedent and logical consistency.
Now perhaps the bottom of the slippery slope isn’t that scary. Maybe service providers, in Australia or America, should automatically block access to sites that private filter companies — or the government — has decided contain illegal hard-core porn, child pornography, copyright-infringing material, libelous statements, statements that express hostility based on race, religion, or sexual orientation (at least when accessed from those Western countries that outlaw such statements). Rather than requiring trials to decide whether each site contains illegal information, a process that would be so cumbersome that it would keep the regulatory schemes from working effectively, we should just have providers instantly block access to any site that some government agency has decided is indeed illegal. Much more efficient, indeed perhaps the only efficient way of effectively shielding Australia and America from potentially harmful off-shore speech.
In my view, such a solution, efficient as it may be, would nonetheless be wrongheaded; and under U.S. law, it would be an unconstitutional prior restraint, since it would involve the government mandating the blocking of potentially protected speech before a final court judgment that the speech is indeed unprotected.
But my broader point is that, whether mandated filtering is good or not, it is the logical next step in any attempt to crack down on illegal online material. The government understandably dislikes having its policies frustrated by foreign outlaws. (“[I]naction by the . . . Government ‘opens it up to the charge it’s soft on porn.’ ‘As it is responsible for a hopelessly ineffective system of regulation of internet pornography, yet frequently expresses concern for the moral dangers facing children, the . . . Government is vulnerable on this issue . . . .'”) That’s why mandated nationwide filtering may be coming to Australia. And the more the U.S. government tries to go after obscenity, the more likely such mandated filtering would to come to America, too.
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