Open Hatch

Hydralisk:

It sounds okay in theory, but there is first the problem of "Who decides what counts as porn?"

The short answer is: Your mom!

I believe this question has been legally addressed for various media, including internet media. To the relief of the general masses, those laws keep Naughty Bits off the free television airwaves and restrict them to special interest Cable TV Channels – a very special interest, indeed! I'm sure the laws read something like this: "Wherefore, as the majority vote is to conceal Naughty Bits in media, herein we enumerate means of Naughty Bit Concealment and regulated Naughty Bit Revelations; all Naughty Bit media Concealments and Revelations shall be thus, throughout the universe, in perpetuity.." (I have seen the phrase "..throughout the universe, in perpetuity.." in media development contracts. In real life. They are waiting for the Mars distribution right

s. For starters.)

Hyrdalisk continues:

..and then, assuming you get past all the implementation and enforcement issues, there is the fact that the *entire* rest of the world wide web cannot be regulated by one state in one nation. More criticism of the proposal from theoretical, technological, and legal pov over here.

(That last in his comment is the link to Bambauer's blog).

Implementing and enforcing laws is of course a burden, but that is the burden of Democracy. It is only a matter of what we choose to legislate and enforce. To present the same logic in an extreme case, what if we said we cannot stop all murderers from murdering? The subtext to me seems to be "..so why even try?" Because laws against and punishments for murder effectively limit the number of murders. Of course we can't prevent all of any bad thing x. But not doing anything because we can't do everything is not practical. I believe that many wrongs in the world remain so pervasive because folks throw their hands up in the air and give up fighting them.

Of course this implies I believe pornography is wrong; which I will here outright say I believe it is.

Regulating the entire rest of the world wide web is a misnomer. Regulating as much as we reasonably should and can is the question. We needn't give up. We need to do the opposite. We need to fight. Not to eliminate pornography – we can't (though I would also persuade anyone involved in creating or distributing it to do nobler things) – but to regulate it; to allow people effective means to stay away from it.

Now I'm going to respond to Bambauer's entry. His arguments open:

CP80 starts with some rather overwrought facts about Internet porn.

He doesn't specifically say why or how the facts are "overwrought".  Instead he compares the amount of pornography pages vs. pages of kittens (which seems to be a stupid ironic euphemism for "the rest of the internet"). What a quaint, silly argument, he seems to beg us to say. Gosh, that pornography; so silly, why even fuss about it? Who is it hurting? This ridiculous contrast seems to minimize what in reality is a dominating plague of pornography use. If there is a huge amount of pornography on the internet – say, 240 or 260 million* pages, but an even huger amount of pages devoted to harmless things, are those 260 million pornographic pages still a lot? Absolutely. However, this is much less relevant (and so are page number statistics by themselves). It is not quantity of pages that matters, but number of times pages are accessed. That tells how much pages are being used. To focus only on numbers, to so casually propose that the problem of pornography may be outweighed by the remainder of, like, the internet, kittens and/or sex kittens and all, and um other stuff, is a distraction from both how predominant the abuse of internet pornography is, and that the use (or abuse) of pornography is in itself very harmful. Regarding the predominance of internet pornography use (and of affiliated industries), here are some statistics. I pull from pages which in turn pull information from myriad authoritative studies and sources. Reported here:

.. At 13.3 billion, the 2006 revenues of the sex and porn industry in the U.S. are bigger than the NFL, NBA and Major League Baseball combined [me: now that's some good sport they're getting on! Hooyeah! I'm sorry]. Worldwide sex industry sales for 2006 are reported to be 97 billion. To put this in perspective, Microsoft, who sells the operating system used on most of the computers in the world (in addition to other software) reported sales of 44.8 billion in 2006. -Internet Filter Review

.. 60% of all website visits are sexual in nature -MSNBC Survey 2000

.. The No. 1 search term used at search engine sites is the word “sex”. Users searched for “sex” more than other terms such as "games," "travel," "music," "jokes," "cars," "weather," "health" and "jobs" combined.. – Alexa Research

Alexa tracks internet traffic and ranks pages by traffic. But what about the nature of this and other search statistics? A lot of detail here is necessary to do the figures justice.  Alexa is an opt-in statistics compiler – they only receive data from people who voluntarily install their toolbar (they might pull data through contracts with other search engines. I don't know). So this statistic may only reflect their user base.  What about the top two search engines – Yahoo and Google? Yahoo's top searches for 2006 clearly show unseemly material as the top interest of their users – Britney Spears is the no. 1 search. What's she infamous for? Yes, Britney, you have tragically turned yourself into "unseemly material" to so many. Note that women famous for being provocatively clad, unclad, and/or titillatingly mischievous comprise six of the remaining nine top Yahoo searches (I have unfortunately not done any image searches to verify this broad and perhaps unfounded insult – excepting the obvious case of Pamela Anderson, who is also herself rather exceptional) – that's seven of ten in the top ten. Too bad it's not seven of nine.  If you didn't get that joke, you may rest secure in the knowledge that you are neither geeky nor well-affiliated with any geeks.  Google's top 2006 searches have no such things at all in their top 10. And they're the dominant search engine by far [citation not needed]. So I'm sorry, but if Yahoo is your search engine, I'm going to have to suspect you're a porn addict. Note however that Google's list is not a list of raw searches; their page says "To compile these year-end lists and graphs, we compared frequent queries this year against 2005.." – it's a relative list, a list of searches that gained the most in ranking from last year. If (as the cases with Alexa research and Yahoo both suggest) "sex" and affiliated words** are the predominant search terms, "sex", etc. would not appear on Google's list of terms that gained the most in ranking: because it stays at the top of the lists.

Familysafemedia.com:

The pornography industry is [sic; revenues are] larger than the revenues of the top technology companies combined: Microsoft, Google, Amazon, eBay, Yahoo!, Apple, Netflix and EarthLink..

It is clear: pornography is the number one form of media on the web in terms of page accesses; and in terms of commerce, these statistics don't say if it overpowers all information technology sectors combined – yet to far overpower so many of the top tech companies!  And if it is dominating most of the "big boys", it's a safe bet it's walloping all of them.  But again, whatever the money statistics, pornography is clearly the dominating usage contender in the internet.

The page Bambauer linked to at his first utterance was, when I looked at it last (it's gone now), a summary of the ill psychological and social effects of pornography. I don't remember, but I believe that in general it alleged that pornography destroys people and families emotionally and psychologically, and that it can impair employment or prevent me

n from marrying.  Bambauer points out that some sources on this are not cited. Okay, that's a presentation flaw. Does it make the facts wrong? If I claim that the earth revolves around the sun but don't cite a source for this, am I wrong? Darrin Rogers rightly comments at Bambauer's page:

"..to pooh-pooh the research on the negative consequences of pornography on human interactions is to be intentionally ignorant of a large body of research.. There is both correlational and experimental research going back at least three decades, demonstrating pretty clearly that pornography is bad for us."

Bambauer also implies some sources may be biased ergo their facts skewed or wrong; "..after all," he says, "a filtering software vendor will have an objective take on the problem!" (clearly this is sarcasm). But sir, as a lawyer I would hope you recognize the logical fallacy of the Ad Hominem. The source of information doesn't make it right or wrong, but the methods and reasoning of the information. Well, you know, people who have something to sell can't be relied on to be honest. It's a clever Ad Hominem; I'll give it that, because you might say that in general people are leery of salespeople. But it isn't logical. How people feel doesn't change facts about internet pornography use/predominance/damages etc. Bambauer goes on:

The assessment suffers from two flaws.. First, it doesn’t measure risks from Internet porn relative to other potential problems. Sharks are dangerous, but pigs cause more deaths per year. Second, it doesn’t address causation versus correlation. Does viewing porn make you more likely to lose your job, or are workers who are less successful (poor work ethic or other loser habits) more likely to watch dirty stuff on their screens?

Same tricks: make it all sound stupid with comparisons that sound silly, and it's the same hollow rhetoric format as porn pages vs. "kitten" pages again. If presumed more dangerous thing A (pornography, sharks) damages less often than B (kittens, pigs), it may therefore be less harmful. Again, that concerns quantity, not effect (even while he speaks about "causation"). If A less often damages than B, so what? They both damage.  Again it is in the blatant stupidity of the contrast; wait, kittens and pigs harm? And more than porn? Makes porn sound mostly harmless. But that is a relativistic concern. Effect is an absolute concern. The ironic bad effect of his concern with less or more is: "Well this person says this, but this person says that.. what do I care? I'm concerned with neither, people can think what they want. Do whatever. Enforce nothing." But since there is a large body of research showing that pornography is bad for us, why not instead say: This is bad. Let's enforce that anyone who doesn't want this – and especially people too young to decide whether they want this dangerous stuff – does not have access to it.

Parents especially need to be able to keep pornography away from their children.  And children and youth in turn especially need their parents to be able to protect them, both because children and youth lack the maturity to reasonably stay away from pornography of their own will and because for them to be exposed to pornographic or sexually illicit media is a form of sexual molestation. It destroys the innocence of children and drastically upsets their emotional equilibrium. I won't cite sources for this. Look it up.

Surely we would enforce a child's right to not be molested. And children have a right to have pornography nowhere near them. Now – a broader social point – historically, women and children have been treated more like (often entirely like) property than they have been treated as individuals with rights (read John Bradshaw's "Family Secrets: what you don't know can hurt you" for this).

Today the enforcement of a child's right to live without exposure to pornography (to live without being molested) is virtually nonexistent.  Protectkids.com cites "Kids Online: Protecting Your Children In Cyberspace" (now people are having children in cyberspace!  The porn industry is naturally all over it.  I am, again, sorry) about the ease of access children have to pornography:

"..[A pornographers'] common practice.. is the posting of free teaser images on their web sites as enticements to solicit new subscribers. Any child with unrestricted Internet access can view these free pictures through accidentally accessing such sites or by deliberately searching them out. Any computer-literate child can view adult pornography, such as images that appear in Playboy or Penthouse, as well as pornography that is prosecutable as obscenity, which might include pictures of women having sex with animals; men engaged in sexual acts with children; and the rape, torture, and mutilation of women."

(I believe several of those at least can be prosecuted as more than obscenity, never mind the very acts which the photographs capture.) 

Internetnews.com:

Nearly all (90 percent) of kids aged 8-16 have viewed porn online, mostly while doing homework.

Much worse than that, as reported here:

The largest group of viewers of Internet porn is children between ages 12 and 17 (Family Safe Media, December 15, 2005)

[Of Commercial pornography sites as surveyed in 2001:] "Only 3 percent required adult verification." (Child-Proofing on the World Wide Web: A Survey of Adult Webservers, 2001, Jurimetrics. National Research Council Report, 2002).

Still much worse, reported again here:

.. The U.S. Customs Service estimates that there are more than 100,000 websites offering child pornography (which are illegal) [sic] worldwide. -Red Herring Magazine, 1/18/02

Where is most of all this being seen by kids? ed.uiuc.edu:

..The Internet Online Summit held in 1997 in Washington, D.C., revealed that 70 percent of children viewing pornography on the Internet are doing so in public schools and libraries.

And it ain't just the 'net. It's common in more 'mainstream' printed pornographic media; the stuff you might suppose to abuse only adults..

..content analysis of 373 issues of Playboy, 184 of Penthouse, and 126 of Hustler magazines, December 1953 to December 1984, yielded 6,004 child images.. Newsstand-available child-depiction in the context of erotica/pornography, imagery received both of juvenile and adult readers, increased nearly 2,600 percent from 1954 to 1984, peaking in 1978 at 465 newsstand-available depictions… Close to 1,000 sexual scenarios included children with adults; 80 percent of the children were actively involved in all scenes; each magazine portrayed children as unharmed and/or benefited by adult/child sex.

We are standing by watching our children destroyed long before they are capable of maturely deciding whether they want this stuff; let alone standing by the rampant plague of horrific abuse children are suffering far beyond exposure to depicted pornography – indications are that hundreds of thousands or millions of young ch

ildren are coerced into creating (if there are 100,000 websites with so many child victims depicted in each of them), coerced into being the subjects of child pornography.

Bambauer's invocation of "causation vs. correlation" is impractically abstract. If ineffective workers keep looking up Naughty Bits on the internet, how would you change their character so that this doesn't happen? Set up a government program to educate them that although it is regrettable we cannot all enjoy bad things at work, yet it may offend one or more and or people and such as, and so we should get more internets in the Iraq but let them know where the bad stuff is so they won't look at it, and for our future for our? Okay, maybe I'm setting up a strawman argument here. But let's hear a serious proposal (Bambauer doesn't offer any) for how to deal with, uh, poor work ethics in, like, U.S. American workers. I'm sorry, but the first thing it brings to mind is another government, like, training and education program for people (and maps).

If there is a Constitutional, easy way to prevent workers from even accessing pornography at work if their employer so decides (the CP80 initiative would steer the information technology industries into making that choice much more easily available to employers), it doesn't matter whether workers are ineffective – productivity will improve simply because they no longer have some of their previous options to destroy company time, resources, and morale. Bambauer's proposal is nonexistent and, if his rhetoric suggests, would only be founded in the abstract; but CP80 is real and is founded in the practical.

On technical implementation, Bambauer says the proposal to create one internet channel for pornography and another for public use is "ludicrous". But the pages introducing CP80 (to which he links) are not detailed technical and policy proposals – so they aren't "misleading" either – they are a simple presentation of the sum effect. If the details of the desired effect of a "channel", or whatever you choose to call it, are of course very different, technically, than a cable "channel", still the effect in the abstract is the same. By the way, his off-hand use of "technologically unsophisticated" is condescending (and to something that doesn't apply, again since the presented material is in the abstract, not the technical details) – it's a veiled Ad Hominem.

Bambauer also says that in effect kids could just create their own internet to get around the "Community Channel" (by finding or creating custom software to match ports). That children are capable of getting around any barricade isn't the point. Some kids will give up if there's a barricade; others will see the point of the barricade and not even try to go around it; others will try to go around it and some of them succeed; but in all these cases the barricade upholds (instead of ignores) the ideal, which ideal I repeat we do not now in general uphold in law, that as adults we urge children to stay away from this stuff. But besides that, Bambauer only points out that there are kids who will get around the barricade. Well, there are also a lot of children (I would guess more) that it would effectively stop from accessing stuff they shouldn't. He himself makes this point in the very same abstractly comparable scenario – he says that you can do this with the internet, but "This works much less well for TV – in part because of legal controls over broadcasting [which keep pornography on subscriber cable channels]." So legal controls over information can work? How about effective legal control to prevent exposure of children to pornography? Sounds good to me. Let's do that.

Roger's observation about the harm of pornography, quoted above, though not authoritative itself, will have to suffice regarding the harm which pornography causes. Frankly, I don't even wish to cite research on the harms of pornography to someone who wasn't even aware the research existed, yet he so flippantly argued against the claims as "overblown". More bluntly, that kind of apathy nauseates me.

So to leave that where it is, here's a speculative case I'd put in general Constitutional terms. The documentary TRAFFIC CONTROL (which is what made me first aware of CP80) goes over these points, and cites research findings from well-established experts in doing so, but doesn't couch it in this language:

A lot of people are hurt by pornography, even crippled by it. If we want to compete economically, one way is to give people easy options to effectively block internet pornography from their homes, work places, and other public places (like libraries). It's an ethical and economic issue; if we can make the choice more available to people to not allow pornography in their lives (to not be harmed by it), and they make that choice, that simply helps them as people – but also when they choose to avoid the harm of it they are, being unharmed, better equipped to compete economically. I'd like to know how this might be presented as a legal and Constitutional case.

We need effective barriers to this stuff. It is not entirely about controlling the stuff, either. As I said earlier, it is also about sending a message that some things harm you. The Law standing as testament to belief, the child (and many adults who so often forget they can choose) is prompted to more seriously consider the matter. It may prompt them to independently adhere to the belief; or it may not. The better when it does, and some children may be grateful we had the foresight to steer them away from such dangers.

Another statement from Mr. Bambauer:

"CP80 also believes that consumers should be able to request ISPs to block traffic from all IP addresses in countries that don’t implement this type of legislation. That’s going to cut off a lot of the Net."

If that is so, it is a portion of the 'net that we can very much afford not to have. Americans who will say boo-hoo to pornography from foreign countries dropping off availability to their work internet can, well, say boo-hoo. Moreover, if we enforce that ISPs should respond to customer requests to set their home to only receive internet traffic from a Community Channel, then people, given such a forward and clear choice and again the influence of Law proposing the possibility that pornography may be undesirable, may choose what is (in fact) best for them. With more people choosing to block pornography, more people will be watchful of the issue in general as a result, and many good things would come of that: kids who want to will have a harder time finding pornography, and the problem of an anarchic filthy internet being more generally solved, people's energies and time will be freed to watch more specific problems, so that kids may have a harder time finding any way at all around the barrier. It could only have a positive snowball effect. It could induce many pornography peddlers to do what they do not: respond to public rejection instead of stomping on our right to choose not to have their media in our private and public life. The depressing 20:1 ratio of pornography films to mainstream films may shrink. Society, given respect for their choices, will set more watch over the right choice. I believe that most people will choose the right choice if they are led to do so. It is a question then of where we lead

people.

Information is a commodity, and we regulate many (all?) other commodities. It is our Sovereign right to regulate the information commodities flowing out of and into our country. On the whole we don't exercise that right. If we regulated it effectively, it could have an indirect effect of improving the information commodity in other nations – if they can't communicate much to the United States because there's too much filth mixed with their information, it would be a motivation to clean up their act – which I'm sure they could do. The portion of the internet that we don't even want to cut off might evolve to something much better that we can more freely embrace.  Following America's lead, other countries may choose to implement the same or similar measures against pornography and the like. Things can change. And if other nations see our productivity rise as a result of so many workplaces opting out of filthy traffic, that may also light the way for other countries.

Mr. Bambauer goes on that the proposed legal solution is "dicey" (synonyms: risky, uncertain); then outlines how under CP80, content reported to a federal agency as illegal would be regulated by that agency: "[the regulatory agency] issues a compliance order [to the web host] demanding that the material be removed from the Community Port.. " If this is an uncertain method according to Bambauer, a page he links to (for an organization he says he did years of work for) outlines the very method as "enough" -

"..In several countries, a cease and desist notice sent from one private party to another, with the threat of subsequent legal action, is enough to convince web hosts to take down websites with sensitive content."

(It bears clarifying that Bambauer speaks of a Federal agency issuing cease and desist notice, whearas the page he links to speaks of one private party sending such notice to another with the threat of taking them to state law.  The principle is the same; the state legal threat is what induces compliance.)

I'd like to say that page also overlooks significant matters. Note how in even stating that direct regulation at a state level is "enough", they toss in this minimizing word of "several", as in "several countries". Sounds smaller, don't it? But if you consider that it works in any country, isn't that really something? It may not be if you regard that country as run by a regime, a word appearing all over their page in reference to nations in general; a word usually more applied to dictatorships, yet the word is so fondly abused to describe America or democracies by folks who tend to think that America is, like, evil. But government regulation in a context where those regulated retain their right to publish – it is only that they must publish to those who want their material – this is the nobility of a free society. And that is an important point: folks against CP80 often decry that it violates free speech. No, free speech would only be violated if pornographers were censored from publishing anywhere, period. If they retain their right to publish but the right is regulated so that they only publish where their material is desired – say, an adult's basement internet connection instead of a child's unwatched bedroom, or a public library – then everybody wins. They still get to publish, the people who want the media get it, those who don't want it don't. Otherwise, those who don't want the stuff find it breaching their territory, violating their right not to have it; and the pornographer is abusing the individual rights of others. More regarding the OpenNet Initiative which Bambauer links to and is apparently in sympathy with:

..Drawing on arguments that are often powerful and compelling such as "securing intellectual property rights," "protecting national security," "preserving cultural norms and religious values," and "shielding children from pornography and exploitation," many states are implementing extensive filtering practices to curb the perceived lawlessness of the medium.

This is all the page has to say for these causes, and note that again a minimizing word qualifies each case: arguments for these things are "often" compelling. This is tricky language. "Securing intellectual property rights", "religious values" and "shielding children" – these things are not "arguments"; or a series of premises, deductions and conclusions. To say with such subtle inaccuracy that these things are arguments insults what they truly are – causes. Arguments for these causes may often be compelling when the proposed measures for these causes are well thought out, and they may not be compelling when the proposed measures are not well thought out. If these causes were truly arguments, sometimes they would hold up, sometimes they wouldn't. So to subtly replace "causes" with "measures" or "arguments" replaces ends for means, making the whole thing sound as if it has justified ends but not necessarily justified or logical means. Meanwhile, the means themselves were never even mentioned, so that the implication goes unchallenged that the means may not hold up. What is truly a cause comes across as sometimes not compelling.  But the truth is that these OpenNet folks think the cause is sometimes – more like always – not compelling. Wow, with just one little flick of the pen they've attributed the awful ends of their own unjustified causes to the very people who would oppose them! Subtly, subtly nasty rhetoric there. Look at the bottom of that page. The seals of Harvard, the University of Toronto, Cambridge, Oxford. Links to all of these; this entire OpenNet Initiative is undertaken by these schools. Do you approve of these arguments coming out of these prestigious schools? But I do agree with their second paragraph under "FILTERING'S INHERENT FLAWS." I can imagine it would be harder to regulate filtering if we rely on parties with proprietary methods they will not disclose. So.. how about developing an open method of filtering, instead of opposing all methods, closed or open?  Or how about a state-endorsed method of filtering?  No, the folks at OpenNet would be very opposed to that.

..Ideally, we would like to know how Internet censorship reduces the availability of information, how it hampers the development of online communities, and how it inhibits the ability of civic groups to monitor and report on the activities of the government, as these impact governance and ultimately economic growth.

The only vantage that comes to mind from which the above quote makes logical sense is a vantage that assumes government (say, U.S. Government) conspiracy against citizens.  Yep, these folks are conspiracy theorists.  Is it Ad Hominem to say so?  Not really, if you agree with this definition of "conspiracy theorist"; a person who makes arguments with foundational assumptions beyond proof, which assumptions create a religious (being that it is beyond proof) fear of the very institutions designed to protect.  Now, if their beef is with China, it may happen that they may be right.  But they wouldn't rely on reasons beyond proof to make their claims.

But what do I mean by this?  That OpenNet page outlines how that regulated content (pornography) if removed from the internet often just creeps up elsewhere anyway; I'd say this shows that informat

ion can travel freely despite regulations (unless, I would contradict, the general population is participant to the regulations and/or the State seriously enforces them). But in this last quoted paragraph from OpenNet, there is an implicit assumption that useful information would be removed from the internet because of filtering; even while they elsewhere contradict that useless information (pornography) will remain. How does filtering only remove useful information while useless information propagates?  Why do they not presume filtering removes useless information while preserving the useful?  And while that is not their vantage, they are discussing censorship from a State-driven vantage, so: in what democracy does useful information not find its way to the people while useless information does? Only a democracy that is more like a dictatorship out to censor the useful stuff that would, like, lead to, I don't know, people being free, or something. I don't know about the rest of you, but on the whole I don't live in that America – and I wouldn't expect that from Canada or the United Kingdom either (both countries host to partners in OpenNet).

An unregulated internet exposes more people to pornography – say, millions of people, all the time, including children – to their personal and economic downfall. If, as OpenNet proposes, a means for people to communicate may suffer to whatever extent because of information regulations, what loss would that be compared to pornography destroying people's ability to meaningfully communicate or connect to society to begin with? Which of these problems is worse (never mind that the proposal of useful information being censored is quite unrealistic)? Even granting the possibility of state abuses, a regulated internet hurts people far less than one vomiting nudity at its victims at unpredicted times. OpenNet's rhetoric contains a vast misappropriation of cause.

Bambauer jokingly bemoans that depictions of legos having sex would have to be banned (this is again the trick of demeaning a serious issue by stupid comparison). Mean bigger brother banning lego sex! – but, ha ha, adults don't really want to look at Lego Porn – they want to look at worse stuff, and, ha ha, Lego Porn isn't made for kids either, it's just stupid. Isn't the whole porn thing just stupid? We should forget about it. That's the effect of the joke.

He goes on with a legal take; with a foregone conclusion that CP80 has "constitutional infirmities"; that (in order to be seen as Constitutional) it would need to pass "strict scrutiny". But – assuming "strict scrutiny" is in fact the only criteria for ascertaining whether the measure would be Constitutional – it wouldn't be infirm unless it doesn't hold up after strict scrutiny. Well, apparently in just his one short paragraph on the subject, he has decided it doesn't hold up. Is one paragraph strict scrutiny? To examine the thing without bias would be to decide whether it is Constitutional after strict scrutiny, not before.

Bambaeur asks to assume "for a moment" that the purpose of regulation is compelling. No sir, I don't assume that "for a moment", I assume that continually, as it is my established foundational vantage. That goes back to the research on the damages of pornography which he glibly ignores or was unaware of. It is a compelling purpose.

You might expect (or I expected) the material on "strict scrutiny" to which Bambauer links to be legal precedent; perhaps some case or established law that would be relevant to the question of CP80. It turns out that may possibly be partly the case, but on the whole is not. It is the opinions of a law professor at UCLA (have you ever noticed that has the same letters as ACLU?) writing a theoretical paper about what he thinks we ought to be doing with the law, but which we aren't. Given, in arguing for what supposedly we ought to do, it gives a lot of what we have done – and I'll give it the credit of assuming that it presents what we have done fairly accurately. Yet it is a paper in a law opinion journal, and so it has no binding in law or precedent. Reading the introduction, sections which seem relevant, and some other parts of it, I have mixed responses. It seems to present a history of content-based regulations (or "restrictions") very accurately. But it argues for a new approach to strict scrutiny which I fear would be impractically impossible, even Pharisaical. It reviews what it alleges are the principles of content-based free speech restrictions. The first principle it alleges is this:

The government can have no compelling interest in privileging particular subclasses of core protected speech.. over other subclasses.

However, amidst this it also proposes:

.. to shift.. toward an approach that operates through categorical rules — such as a per se ban on content-based speech restrictions imposed by the government as sovereign — coupled with categorical exceptions, such as the exceptions for fighting words, obscenity and copyright.

How do these conflict? If we oppose speech restrictions that originate in sovereign interests (which I may find alarming in itself), but make exceptions for other things, we are privileging one class of restrictions over others. To say that we cannot impose restrictions rooted in sovereign interests but we can impose restrictions for fighting words, obscenity, and copyright, says that we cannot do this, but we can do this. Logically, to say what we can and cannot do favors or encourages what we can do; it is state-endorsed permission or tolerance for one thing. I would here pull out one political stripe in noting that this problem exists in what the ACLU, er, UCLA has succeeded in banning: religiously-based speech in the public square (as one example, prayers in schools). The Supreme Court, favoring ACLU's position by deciding that religiously-based speech is unconstitutional in the public square, has expressly forbidden one thing, which implicitly allows or endorses everything other than that thing: prayer in public is forbidden, but everything else is allowed (besides the other things which have been categorically forbidden). It effectively endorses a religion which bars all other religion per se from the public square. The State Religion of the United States is agnosticism and/or atheism. My personal belief is that the Founding Fathers howl with rage over that one; because to suppose that allowing a prayer in a school from any denomination endorses that one denomination in particular is folly. To say it endorses many denominations is also folly; where the need for prayer is simply one philosophy that many denominations agree on, yet they disagree on many other things, and endorsing all denominations would mean endorsing philosophies which expressly contradict each other and cannot logically coexist as an endorsement.  Endorsing one philosophy harmonious among many religions endorses no religion in particular, neither all religion in general.  And the very first words in our Declaration of Independence explicitly endorse the very common doctrine or philosophy of reliance on God for support.  They rely on one common philosophy of God, not any one religion of God, as indeed is also the approach of the Constitution to religion. The Constitution is replete with philosophies harmonious among many sources, among them religion, and that is what ticks off the ACLU. And they've won (we really need to reclaim that part of the Constitution).  If one philosophy which all praying religions share is prohibited, all praying religion is prohibited, as you can embrace none of those religions without embracing prayer.  They have barred the shared philosophy, and so have barred all praying religions.&

nbsp; I feel fairly certain that all religions pray, so they may have barred all religion; this is how I say the ACLU has subversively established in this nation a State religion of agnosticism and/or atheism.  How do you feel about that? I feel horrified and grieved. I pine for a nation more closely united "..under God."

Now this ACLU Lawyer, excuse me, UCLA lawyer, seeks to categorically forbid us from forbidding people to speak in ways that undermine our sovereign interests. One example of a sovereign interest is to forbid anyone from publishing or uttering words which actively recruit and engage individuals in sabotage or acts of terrorism against the United States. That's why I say I'm leery of this lawyer's glib proposal for "..a per se ban on content-based speech restrictions imposed by the government as sovereign". Got it? Scary stuff.

To go back to what Bambauer has to allege against CP80, his paragraph on strict scrutiny proposes, as supposedly favored "narrowly tailored" approaches, the very same client-side filtering technologies which previously he cited as easy for kids to get around.  If he raises the point that kids can get past filters easily, he seems unconcerned about it, and apparently thinks the law should endorse an approach which he himself says doesn't work.  I'd think that should instead turn to the point that we need to make it harder to get past filters, that maybe client side filters aren't enough.  Of course, I've argued CP80 could be a great solution.  And if "narrowly tailored" legal solutions must be a consideration, and one approach doesn't work well (client-side filters), perhaps the approach is too narrow. Perhaps law hasn't taken into consideration just how vast and unwieldy the internet is. His law blog says at its "about" page that the law needs to evolve in response to new information commodities. If CP80 isn't quite like any solution we've seen before, and it (arguably) would be effective, couldn't it be seen as an evolution of law to respond to a new information commodity?

As Bambauer himself seems to understand (while he doesn't grant that comparisons to other media work in the abstract), the specifics for information regulation law should respond to the nature of the medium they regulate (and not the other media which more broadly or abstractly they can compare to). But while he opposes CP80, in the material he references which addresses internet media, I have only found citations (as I did in the OpenNet page) which express implementation details similar to CP80 which work – for example regulating (among other things) by means of State-sent notices to shut down a lawless internet server. The only part of the information he cites which is relevant to the medium applies in sympathy with the theoretical effectiveness of what rejects. That's not evolutionary; it's idle, while missing the emergence of facts which only enhance the case for the evolution he is against.

Moreover, I think that while Bambauer uses the word "regulation" in his allegations, what he plays off may be the quite different concept of "restriction". If that is so, his allegations may be moot (and the preceding four or five paragraphs here would be irrelevant because the allegations they respond to – his argument – would be thrown out of the "court" of this debate as unnecessary; allegation dismissed). The only directly related matter in the opinion journal he linked to were references to legal suits filed to attempt to restrict pornographic publication, period – as in do not publish at all. Naturally, pornographers have a right to publish in the United States, so those cases favored the pornographers. If Bambauer responded to the question of "regulation", not "restriction", he wouldn't pull that into it – he'd focus on questions not of whether pornography exists but where. It would be a question of restriction if CP80 sought to forbid publication of pornography at all. But CP80 does not so restrict, it seeks to regulate – to mandate that those who choose to publish pornography publish it, virtually, somewhere else – a somewhere else without any space restrictions (being virtual). In the proposed virtual space, they are free to publish. And it is possible that in the virtual space where they may more freely publish, pornographers would go on a free-for-all rampage and fill up that space with even more crap than now exists. It is only that under CP80 people may choose to avoid the virtual space where that crap resides. The concern is strictly with where to place content, not whether the content should exist.

At the end of his post, Bambauer suggests maybe the government should find means to encourage the market for effective filters; he cites Indonesia as a place where there is a market for "filtered taps", where people can choose an ISP that filters out all undesirable material. CP80 seeks to give exactly that option (no compulsion, no restriction) to all American consumers. Since there really doesn't seem to be any Constitutional question with the proposed regulation, what argument is there against it?

Lastly regarding his post, he responds to Roger's comments by admitting he's not an expert on the "cognitive effects of pornography", and expresses a willingness to link to research about it, provided a link. For that I think him, though I think the reasonably valid claim may be enough: that there is a lot of research indicating harm from pornography. Well, I don't know. If you get into the findings of the research, it can be scary, and in this case fear may be a good thing. But I must also disagree with what Bambauer simultaneously says about pornography possibly being only be the "thin edge" of what we would end up seeking to regulate.  I don't disagree with that idea, I think it may be true that pornography is only the thin edge of problematic media.  I disagree with his continued take on regulation as problematic: what of the question, he muses, of research on viewing violent material (which, although his opinion that the research is suspect is "somewhat beside the point", he apparently feels needs mentioning anyway)? He concludes that seeking to regulate this may lead to regulating that, and it may be the beginning of a "slippery slope.." – again, no, sir. Questions of what needs regulating are not questions on a "slippery slope"; society has been tolerating increasing amounts of obscene, violent, and generally destructive material, mostly against their will, since the early 60's (when, not coincidentally, social radicals more or less hijacked intellectual and Hollywood culture (please don't mistake that I necessarily link those two cultures).  I recommend Michael Medved's HOLLYWOOD VS. AMERICA for a very sobering exploration of that. The increasing flood of crap – like a sewer burst open! – that we have been tolerating and continue to tolerate; that is the "slippery slope" of the artistic and cultural morale of our nation.

As a closing argument, I'd like to step back to ed.uiuc.edu for a moment:

"..Pornography is a neglected problem in society which devalues women in particular, making them objects of lust rather than human beings. The same devaluation occurs when children are involved. Educators not only must teach against such disrespect, but also must work to protect children from gaining access to Internet pornography as the Internet becomes more commonplace in schools.

Mr. Bambauer is an educator, and this is what he's had to say about CP80.  On this topic we need better edu

cation and intellectual stimulation than this, folks.  As I first implied, I expect this sample of the education he has to offer isn't representative of the whole of it.  I'd call on Bambauer and all people in educational professions, and people in general, to wake up and fight. 

We need to fight this damned flood of pornography where it stomps on our human and civil rights.  We can't eliminate it (if I were a tyrant, I would), but we can much more effectively regulate it on the internet.  Our society's immature and feeble responses to internet pornography so often violates our own rights, and especially the rights of our children.

– 

Footnotes:

*Most pages I've run across report the number of pornographic internet pages at 240 million; a more recent estimate is 260 million: "As of 2003, there were 1.3 million pornographic websites; 260 million pages (N2H2, 2003)". I've done my darndest to find the source document for that statistic, which many web sites attribute to N2H2, an internet filter provider (who would be reporting these figures from their internal database of the number of pages they have to block because they have identified their content as pornographic). N2H2 was bought out by Secure Computing in October 2003, and I'm not finding the statistic in a pretty thorough search through their site.

**We are required to ask the following question. Your answer is for statistical purposes only and will not be used to identify you. You are not required to answer. Have you ever run an internet search for 'sex' or affiliated terms?  Has Yahoo ever been your search engine for any prolonged period of time, or is it currently?