Fear of sex translates into laws on what we can say and show

Monday, February 1, 1999

If it weren’t for sex, none of us would be here, of course. Sex is a
constant in both our separate lives and our common environment. Even so,
when we encounter it outside the bedroom, it scares the bejabbers out of

That reaction is so pervasive that if you mention “sex” in the same sentence
with “children,” the whole conversation shudders to a halt and after a
stricken silence the next words to be spoken assuredly will be something
along the lines of, “We’ve got to have more laws to protect the

Across the political landscape, elected officials labor to exploit this fear
and provide the laws so many of us so earnestly demand. Because the
Constitution has proven a bit of an obstacle to censoring more traditional
forms of expression, lawmakers view a new communications medium like the
Internet as a great opportunity for censoring speech under the guise of
regulating technology.

So the Internet becomes the new field of constitutional experimentation for
those who fear laws less than they fear sex and what incidental exposure to
it might do to their children. There is no shortage of examples.

A federal court order temporarily blocking implementation of the Child
Online Protection Act expires today. The court is expected to rule on whether to permanently block the act, which lays out penalties and
punishment for commercial Web sites trafficking in material considered
harmful to minors.

We’ve been down this road before, of course. COPA was enacted last year by
Congress after its previous attempt to regulate Internet speech, the
Communications Decency Act, was declared unconstitutional by the Supreme

As a hedge against the possibility that this law, too, may be declared
unconstitutional, U.S. Sens. John McCain, R-Ariz., and Ernest Hollings,
D-S.C., a few days ago introduced yet another federal attempt to regulate
speech on the Internet, the Children’s Internet Protection Act. It would
require public schools and libraries to filter Internet content in order to
receive federal funds.

And on Jan. 27, a federal appeals court in Boston upheld the Child
Pornography Protection Act, a federal law that makes it illegal to possess
computer images that look like children in sexual situations — the so-called
“dirty pixels law.” U.S. District Judge Gene Carter had ruled in April that
the law was unconstitutionally vague.

Meanwhile, state and local lawmakers will be introducing over the next few
weeks several hundred separate laws proposing to censor sexual speech on the

What all these developments have in common, of course, is sex. Pictures
about sex. Words about sex. Sites about sex. Money being made from sex. It’s
all about sex.

And children. Congress leaves no doubt about its obsession with children and
sex, if one is to judge by the titles and content of its laws. Child Online
Protection Act. Children’s Internet Protection Act. The Child Pornography
Protection Act. Congress may not learn from its mistakes but it does learn
from the polls.

Sex is not what the Internet is all about, of course. But to read the front
pages of our newspapers, to listen to the talk on radio, to watch the news
specials on television, and to eavesdrop on ordinary conversation, one would
think that is all the Internet has to offer: sleaze and filth and lewdness
and indecency and, well, sex.

How did we come to this idea of sex as a disease and a danger?

Perhaps it was inevitable. When civilization and progress take care of the
basic necessities like food and drink, fire and shelter, and, yes, sex, we
turn to more refined pursuits, or pleasures, if you will.

Thus the kitchens of fine restaurants and the aisles of our supermarkets
titillate with all manner of tempting confections and conveniences that
boggle the mind and enlarge the waistline. The campfire outside the
smoke-filled hut has become a $5,000 charcoal grill on the deck of a mansion
equipped with a gas fireplace that one lights with a remote control to
supplement the thermostat-controlled heating and cooling system that bathes
the interior in air that has been filtered, humidified and sanitized for our

And so it is, too, that we have refined the sexual. It no longer is just
the grunt and grind of furtive activity in the dark or even the childish
graffiti on the wall of the cave. Now, sex is the element of choice in the
marketing of everything from clothes to cars. It is a lucrative revenue
stream for the Porn Barons of the web. Sex in a myriad variations, versions
and venues.

Sex, like food, is no longer a matter of survival of the individual or the
species but the pursuit of ever-more-refined entertainment and pleasure. But
we have quite contradictory ways of coping with such “progress.”

Food and drink rival sex as the favored subject in newspapers, magazines,
radio, television, even music and movies. Oh, we fret some about its effects
on our health, but we still love it and consider it a legitimate part of
civilized life. Certainly, we don’t think of food as a menace to society.
Certainly we don’t countenance laws to banish depictions of food and eating
from our lives.

When it comes to sex, though, well, that’s another matter. We just aren’t
all that comfortable with it. Until genetic manipulation or some other
technology relieves us of the necessity of engaging in the act itself, our
civilized impulse is to repudiate sex by regulating speech about it.

The First Amendment, of course, says that Congress should make no law
abridging the freedom of speech, but from the Comstock era right on down to
the present it has made a raft of such laws abridging speech about sex. Many
of those laws about contraception, abortion and whatever was considered
“obscene” at the time remain on the books, monuments to our fear of sex.

Since the Constitution and the courts generally prevent us from censoring
sexual material for adults, we try to censor for the good of our children.
The irony, of course, is how willing some of us are to deal away the real
rights of our children in the future to protect them from a virtual harm in
the present. It is the regulatory equivalent of destroying the village to
save it.

Another irony in such laws is the idea of compelling “pornographers” to
prove their right to speak. “I want to put the burden on pornographers,”
Virginia Republican Rep. Bob Goodlatte said in 1997. As if one person’s
definition of “obscene” and “harmful to minors” and “pornography” were the
same as everyone else’s. As if freedom of speech were something we must earn
or qualify for, conditioned on the approval of members of Congress or
official minions prosecuting its laws.

Such an approach to proscribing speech about sex reminds us that this is an
issue not so much about where we draw the line but about who gets to draw
that line.

Ultimately, it’s in the best interests of children and adults alike that the
authority and power to draw that line remain close to home; otherwise we
cede to the government and the vociferous a power over our lives that mocks
the very idea of freedom.

The prospect of that should be at least as terrifying to us as, well,

Paul McMasters can be contacted at pmcmasters@freedomforum.org.