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Read a transcript of the Supreme Court's search to define the Internet issue.

Go to the Decency Special Report.


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Shouting Porn! on a Crowded Net

Supreme Court Justices Search for a Metaphor

By John Schwartz
The Washington Post
Sunday, March 30, 1997; Page C01

The folks who aim to restrict sexual material in cyberspace make the Internet sound like one giant red light district, while some of the Net's boosters contend there's a negligible amount of online smut. But both sides miss the point. As recent oral arguments before the Supreme Court on the Communications Decency Act made clear, the real question isn't what's on the Net, but rather what is the Net.

Inside the courtroom, the talk was barely about matters sexual at all. Instead, the nine justices seemed interested in metaphors. Was this Internet like a telephone? A radio? A public park?

This was no academic exercise: every analogy carries with it a long line of First Amendment cases or other precedents. Justice Stephen Breyer asked whether the new law, which is designed to restrict minors' access to sexual material on the Net, meant that teenagers bragging online about real or imagined sexual exploits could be jailed, while the same conversation on the telephone would be protected. His question played on cases that upheld the free speech rights of the dial-a-porn industry. Justice Anthony Kennedy's questions -- comparing Internet utterances to those on a street corner or in a public park -- evoked cases in which free speech rights were protected in public forums.

By contrast, Justice Antonin Scalia's references to radio brought to mind the Supreme Court wrangle over Pacifica Radio's broadcast of George Carlin's "Seven Dirty Words" monologue -- the case that recognized the government's right to ban indecent speech from the airwaves. Find the metaphor, and you're on the way to finding the precedent.

To the extent that sex did enter the courtroom, the justices already had a sense of what so many others caught up in the furor over online porn and civil liberties have overlooked: history. They live in a world guided by precedent, after all, and have long experience with cases concerning obscenity, indecency and other forms of objectionable speech. They seemed to understand that virtually every new communications technology is used early on for sexual titillation. Fifteen years ago, for example, Hollywood was still trying to figure out whether to distribute its wares on videocassette while an underground market in pornographic videos was spurring early sales of VCRs.

Does that mean anything goes in the online world? Of course not -- the worst material on the Net is just as illegal there as anywhere else. That's why the choice of metaphor is so important: The Court has granted stronger First Amendment protections to print than to broadcast. At issue in the Communications Decency Act case, as Breyer's questioning showed, is whether "indecent" and "patently offensive" material should be constitutionally protected online.

Appearing before the Court, deputy solicitor general Seth P. Waxman painted a portrait of depravity unleashed: 8,000 sexually explicit sites on the World Wide Web alone, estimated to double every nine months -- giving every child with a computer "a free pass into the equivalent of every adult bookstore and video store in the country."

The lawyer for the other side, Bruce J. Ennis, said the librarians, Fortune 500 companies and civil liberties groups that make up his coalition didn't want children to have access to objectionable materials either. He acknowledged that many commercial sites require credit card access, which limits underage access, but added that noncommercial publishers on the Web could not afford to do the same kind of screening. The new CDA law wouldn't effectively protect kids, Ennis said, because so much of the Internet's content is produced overseas -- but it would stifle legitimate uses of the burgeoning medium.

But here's an argument you didn't hear anyone making before the Justices: Could it be that, perhaps inadvertently, porn has a purpose? Not just a traditional one in the evolution of technologies -- but a useful one? Before you pull out the pikes, torches and v-chips, bear with me.

There is no doubt, of course, that sex on the Internet is booming. It is, along with gambling and sports, one of the few money makers in the so-far-disappointing world of Internet commerce. A recent survey of the field by the trade publication Interactive Week found that the combination of low cost and popular subject matter made sex sites "arguably the most active and lucrative area of digital commerce in cyberspace." The estimated 10,000 adult sites generate about $1 billion in revenue yearly, mostly through credit card transactions, the magazine said.

A typical porn site contains an archive of erotic pictures and short video clips -- often broken down into categories of specific sexual acts or body types -- that users can display on their own computers, as well as libraries of erotic stories. More advanced sites use online video technology that allows users to direct the actions of a stripper via keyboard instructions -- all for a hefty fee.

All of this is certainly high tech, but it's not necessarily new. Prostitution is the oldest profession for a reason: sex is the sort of thing that people have always been willing to pay for. As satirist Tom Lehrer wrote in "Smut," his 1960s anthem to indecency:

Oh, I'm a market they can't glut,
I don't know what
Compares with smut.
Hip hip hooray!
Let's hear it for the Supreme Court!
Don't let them take it away!
But when it comes to technology, porn serves as something of a pioneer, breaking ground that will eventually serve mainstream uses as they overtake the sexual ones. When that transformation takes place on the Internet, many of the success stories will owe an unspoken debt to the lessons learned by the pornographers. "There's no question that there are things to be learned from the experiences of the people operating these sites," said Charles Lukaszewski, co-author of "Measuring the Impact of your Web Site." (That doesn't mean he approves of the stuff; Lukaszewski says he has warned his own children away from the salacious sites.)

Adult-oriented sites are helping some of the Internet's entrepreneurs get the bugs out of online commerce. Take Joseph Holler II, who has left his mark on a lot of Internet pornography. Visitors to hundreds of sex sites can see the Seattle software developer's handiwork somewhere on the screen: a little box that connects them to xxxcounter.com, a site that ranks the adult services by popularity, counting up the number of daily visitors.

Holler's software doesn't just count users. It also monitors what they do while clicking around the site. A retail sales consultant by training, Holler has spent two decades helping retailers figure out such details as what items to put at the end of an aisle to boost sales and direct customer traffic.

Holler believes that sites on the World Wide Web could use the same kind of analysis, helping them arrange their Web pages to guide customers more profitably through their cyberspace aisles. He says he would eventually like to offer his software and services to Fortune 500 corporations struggling to find their way on the Web. For now, though, he's working with porn. The reason is simple. "We had to test it," says Holler. "What better place to test it than where the traffic is?"

Other businesses watch the erotica merchants closely because many of them use some of the most advanced technologies in cyberspace, says Donna Hoffman, a Vanderbilt University professor who studies cyber-commerce. "These guys are literally on the bleeding edge," using futuristic software such as live video, Hoffman says. Because of their heavy traffic, the sites also pioneer the nuts-and-bolts technologies of billing, system security and credit-card fraud prevention. "All mainstream businesses will face those same issues and will need those technologies" when they come up with material people are willing to pay for, she said.

Hoffman says that changes in the erotic market mean that minors are getting less access to objectionable material, not more. An increasing number of adult sites are moving material that used to be offered as a free sample "come-on" to areas that are unreachable without paying the access fee. Other for-pay sites offer a free site with links into the profit-making service, but require verification of adult status through third-party companies before granting access. Also, numerous companies have sprung up to market software that blocks access to salacious sites, and a consortium of high-tech companies has developed a self-labeling system for owners of Web sites. Such measures arose in no small part because of the pressure from the new federal decency law and anti-porn activists, and they show that "the market is coming up with solutions to protect children," Hoffman said.

As a reporter, I find these issues fascinating. As a parent, I find them troubling. Like Lukaszewski, I'm not comfortable with a lot of what I've found in my Net wanderings. So for now, I sit with my older kids, ages 10 and 6, whenever they go online -- not just to monitor the bad stuff we might find, but to share the good stuff as well. So far, we haven't stumbled upon anything untoward, in part because the Internet almost always gives you fair warning about what's to come. A "search engine" like Yahoo! might inadvertently bring up links to adult sites in a sweep for something else -- searchers for information on volcanoes might be referred to the "Eruption.com" male porn site, for example. But the search service presents only a description of the site; it doesn't take you there. For that you need to click. And we don't.

Later, as my kids grow more adventurous and want to strike out on their own, I might buy some of the blocking software coming onto the market. None of it is perfect, though, so I expect they'll run into stuff that might turn my stomach. That's why we talk about how to deal with trash -- whether encountered on the Net, in the schoolyard or at the shopping mall. It's all part of a parent's job.

As for the justices' search for the proper metaphor, I have my own idea about the nature of the Internet, and it can be summed up simply: All of the above. Yes, it's kind of like a phone -- anyone can reach anybody else. It's kind of like a radio, because anyone can broadcast to the world. It's also a library, a stadium, a town hall and a corner bar. That combination of the familiar and the new might explain why the justices seemed so engaged in the oral arguments. They may thrive on precedent, but the Net is compelling precisely because it is unprecedented.

John Schwartz (schwartzj@washpost.com) reports on cyberspace issues for The Washington Post.

© Copyright 1997 The Associated Press

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