The First Amendment and problems of political viability: the case of Internet pornography.

• Author: Alexander, Mark C.

1. INTRODUCTION

   Political hot-button issues historically have clashed with the First Amendment as political expediency has bumped up against free expression. In the 1940s and 50s, for example, the House Un-American Activities Committee and Senator Joseph McCarthy trampled the First Amendment in scouring the country for alleged Communists. In the 1970s, the prospect of neo-Nazis marching through Skokie, Illinois engendered public outcry and unconstitutional responses. In the late 1980s and early 90s, flag burning ignited public passion. Today, Internet pornography shocks the public and demands attention from politicians, yet it also enjoys a clear measure of constitutional protection. Like other incendiary issues from generations past, Internet pornography poses a political riddle: where is the intersection of political viability and constitutional legitimacy? These issues are at the forefront of American political debate because they are about ideas that shock and stir emotion. But the First Amendment protects unpopular ideas, words, and images from government censorship.

   In recent years, as Internet pornography has come to epitomize societal ills, Congress has failed the American people by attempting to federalize regulation of sexually explicit material on the Internet. While pornography has permeated every virtual corner of the Internet, causing great concern to many, Congress has responded by grandstanding, passing legislation that is, unsurprisingly, invalidated by the courts for failing constitutional standards. In seeking politically expedient symbolism without regard for the Constitution, Congress has failed.

   This Article provides a new look at the problem of regulating pornography on the Internet. Instead of simply offering (or critiquing) a "solution," this Article examines this problem as a lesson in how Congress makes politically expedient decisions at the expense (or in spite) of the constitutional implications of their actions. In Part II, we will see the nature of the problem and review Congress's first two unconstitutional reactions. Further, we will see Internet pornography in the context of another political failure, with a particular comparison to the flag burning issue. Part III will look at a more recent legislative attempt that, while reflecting a new awareness of constitutional parameters, still is constitutionally suspect. In Part IV, the Article recommends a better approach toward the problem, positing that Congress needs to work from the bottom, up, instead of trying to regulate Internet pornography from the top, down. Such an approach, while not as politically appealing as prior efforts, is both constitutionally sound and politically viable.

2. PERCEIVING A PROBLEM, CONGRESS ACTS

   The United States Congress has attempted several times to craft federal laws to combat what it perceives to be the problem of Internet pornography, but with each try, elected officials in Washington seem to get it wrong. This failure stems from a combination of factors: first, there is no constitutional federal "solution" or silver bullet available at this time; and second, politicians are unable to vote against unconstitutional legislation for fear that they will be tagged as "supporting" Internet pornography in their next re-election. No soundbite answer passes constitutional muster, but politics and politicians demand soundbite answers. As a result, there is high political theater, but no law on the books. This can change, however. We start with a quick review of the nature of the problem of Internet pornography.

   1. The Internet: Development, Current State, and Sexually Explicit Material

      The Internet as we know it today has traveled a long path since its first iteration as a Department of Defense project in 1969. It has grown to a world-wide network of ever-changing dimensions with an ever-growing population. It is not a tangible entity, but rather a complex international network of interconnected computers. (1) The "ARPANET' was originally designed to allow communication between the military, defense contractors, and Universities, via overlapping channels. (2) Thus, even if a part of the computer network was damaged in a war or natural disaster, communication would still be possible. (3) From the very beginning, ARPANET was designed to be a "decentralized, self-maintaining series of redundant links between computers and computer networks" (4) that worked without human intervention and with the ability to automatically re-route communications if certain links were unavailable. (5) To achieve this result, ARPANET used multiple links between each computer on the network. As a result, neither the sender nor the receiver of the communication would necessarily know the location of the other, and nobody would know the route the information had traveled. (6)

      Similar non-military networks began to emerge in the private sector, (7) to link businesses, universities, and individuals all over the globe. These individual, private networks eventually merged into one main system, ultimately replacing ARPANET with today's Internet. (8) As a result, users of computers on one network could communicate with computers on other networks. Although they are linked, computer operators and computer networks work independently by using common data transfer protocols to communicate with each other. (9) There is "no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet." (10) By design, then, the Internet is a series of independent networks, and one cannot know where everything is, or where it is going. With unknown routes of transmission and as a series of independent, interconnected networks, the Internet defies description as a fixed community. It is spaceless, timeless, virtual.

      The modern day Internet now describes more than 50,000 individual networks linking at least nine million host computers in ninety countries. (11) It is impossible to define the number of users on the Internet at any given time, because users join every second. However, it is clear that the Internet has gone through enormous growth in the past few years. In 1981, fewer than 300 computers were linked to the Internet, but by 1993 that number had risen to over 1,000,000. In 1996, only three short years later, that number had grown to 9,400,000; the number had skyrocketed to sixty million in December 1999. (12)

      The online community continues to grow at a remarkable pace, particularly among Internet users under the age of eighteen. One study has projected that the number of Internet users under age sixteen will exceed seventy-seven million by 2005. (13) Further, an estimated seventeen million, or seventy-three percent, of twelve- to seventeen-year-olds use the Internet, (14) plus an increasing number of very young children are connected as well. (15)

      There is an almost infinite array of material--particularly sexually explicit material--available within a few keystrokes. The result is concern over the easy accessibility to and the sheer volume of sexually explicit material on the Internet, especially in light of the increasing number of children online. The concern over children's access to sexually explicit Internet content is further warranted given the incredible growth of the Internet pornography industry, largely enabled by the borderless and anonymous world of cyberspace. Sex sells: the (estimated) number of pornographic websites jumped from 28,000 to 60,000 between 1998 and 2000. (16) Pornographic websites are among the most popular sites. (17) A recent study found that the number of individual visitors to Internet porn sites jumped thirty percent from December 1999 to February 2001, from twenty-two million to twenty-eight million. (18) It is no surprise that Internet pornography is big business, comprising eleven percent of the entire $9 billion e-commerce pie in 1998. (19) Industry followers project that e-porn alone will generate over $3 billion by 2003. (20)

      The great majority of pornographic websites are actually free and serve as "bait" or "teasers" meant to lure people into the commercial websites. (21) Therefore, children online may have free and unhindered access to almost all of the available adult content on the Internet. This is true regardless of whether the child is curious and Internet savvy or merely surfing the Web for a school assignment or to learn more about his or her favorite hobbies or sports. (22) Inadvertent exposure to online pornography happens most often when children surf the Web or open e-mails with attachments. (23) Such inadvertent exposures are common, (24) particularly since they most often result from misspelling of a website's address or searching and surfing the Web. (25) The problem of inadvertent exposure is heightened by the very architecture of the Internet because:

      sex on the Internet is not segregated and signposted like in a bookstore, and it is not easy to avoid. Some heavy-duty imagery is incredibly easy to stumble upon.... [Y]outh do not have to be all that active in exploring the Internet to run across sexual material inadvertently. (26) Sexually explicit material available on the Internet is nothing short of astounding, ranging from commonplace pornographic magazine still-frames to interactive sexual encounters. (27) Other well-known sites on the Internet include one that boasted a live broadcast of a young couple losing their virginity together as well as one with images of a college student's bedroom, twenty-four hours a day, 365 days a year. (28) Many sites have obvious names, based on body parts, sexual positions, fetishes, etc. (29) In addition to these adult sites, and perhaps more potentially dangerous, are those which are innocuously-named but contain adult content. For example, if one enters "whitehouse.com" (30) or...