Can society set ethical, legal, or cultural limits on pornography in the age of the Internet? And is this a reasonable or misguided aspiration? In light of the Supreme Court's end-of-term decision on legislation aiming to regulate Internet pornography, The New Atlantis asked legal scholar Jeffrey Rosen and theologian David B. Hart to comment.
Writing not as a lawyer, I am able to address the Supreme Court's recent decision regarding the Child Online Protection Act (COPA) only somewhat obliquely. Concerning the legal merits of the case, certainly, I have little to say. This is not necessarily because I believe one must be a lawyer to understand the Court's decision, but because I am largely indifferent to the legal arguments contained within it, and am convinced that even the question of whether or not it was dictated by genuine constitutional concerns deserves very little attention (as I shall presently argue).
I can begin, however, by confessing my perplexity at some of the reasoning behind the court's majority ruling, most especially the curious contention that COPA might prove to be unconstitutional on the grounds that there exists filtering software that provides a "less restrictive means" of preventing access to pornography on the Internet and that does not involve "criminalizing" any particular category of speech. Surely, if we are to be guided by logic, the existence or nonexistence of such software (which is, after all, merely a commercial product that parents may purchase and use if they are so inclined and have the money) cannot possibly make any difference regarding the question of whether the act violates constitutional protections. Moreover, it is difficult for me to grasp why the Court works upon the premise that whatever means are employed to protect children from Internet pornography should involve the barest minimum imposition possible upon the free expression of pornographers.
Again, not being a lawyer, I have no idea what shadowy precedents might be slouching about in the background of the Court's decision, and I am aware that the alliance between law and logic is often a tenuous one. I can even appreciate something of the Court's anxiety concerning the scope of the government's control over "free expression," given that the modern liberal democratic state--with its formidable apparatus of surveillance and legal coercion, and its inhuman magnitude, and its bureaucratic procedural callousness, and its powers of confiscation, taxation, and crippling prosecution, and its immense technological resources--is so very intrusive, sanctimonious, and irresistible a form of political authority. Allow the government even the smallest advance past the bulwark of the First Amendment, one might justly conclude, and before long we will find ourselves subject to some variant of "hate speech" legislation, of the sort that makes it a criminal offense in Canada and Northern Europe for, say, a priest to call attention publicly to biblical injunctions against homosexuality. We have, as a society, long accepted the legal fiction that we are incapable of even that minimal prudential wisdom necessary to distinguish speech or art worthy of protection from the most debased products of the imagination, and so have become content to rely upon the abstract promise of free speech as our only sure defense against the lure of authoritarianism. And perhaps, at this juncture in cultural history, this lack of judgment is no longer really a fiction.
David B. Hart is an Eastern Orthodox theologian and author of The Beauty of the Infinite.
Read the entire article on The New Atlantis website.