Re: SurfWatch

[tcmay@got.net (Timothy C. May)]

I plan to taper off on all responses to this thread about SurfWatch and
ratings services. Various sides have expressed their opinions about what
courts and governments will demand, and others respond by saying, "I
disagree. They can pass a law..." or "I disagree. The government is
powerless," etc.

At 11:25 PM 3/9/96, E. ALLEN SMITH wrote:

>        Given various anti-obscenity laws that the idiot Supreme Court has
>already found constitutional (including those against providing "indecent"
>material to minors), I wouldn't depend on the First Amendment. Here are some

Finding something to be obscene, or treasonable, or actionable in other
ways, ex post facto, is significantly different from a requirement _in
advance_ that words be "rated." (Before anyone cites the MPAA movie
ratings, an old war horse often trotted out as proof that the government
requires ratings, let me again point out that the MPAA ratings are not
required by the government and that the MPAA is nominally a private
organization. Now, what the government _might_ have done back in the 60s
had the movie industry not acted to "police themselves" is unknown to us.
The Supremes might have overturned any mandatory rating on movies, just as
they almost certainly would for words.)

In the terms of the lawyers--from what I picked up during my time on the
Cyberial list--a requirement that words be rated before they can be
distributed would not pass Constitutional muster. This does not mean that
one's words will not trigger prosecutions, lawsuits, treason trials, etc.
What it means is that "prior restraint" is frowned upon (recall "The
Progressive" H-bomb case of about 15 years ago, where a court subjected
this magazine to prior restraint...a rare occurrence, later overturned. A
more recent case involves "Business Week," and is still unresolved).

>scenarios under which rating services could turn into bona-fide censorship
>(by the governmental limiting of information access definition):
>        A. The government threatens ISPs with more direct censorship (a la the
>CDA) unless they force their users to rate their pages with some such service.

See above. Books are not rated. Even the "parental advisories" on CDs are
ostensibly voluntary (granted, because noises were made about government
ratings...but the point remains that a good, solid Constitutional test has
not yet happened).

>        C. The government (a la the V chip) requires a rating system, or one
>of a collection of "government-approved" rating systems, for all web pages.

By the way, who does the rating in this scenario? As others have also
noted, if I am rating my own pages, and rate them as "suitable for all
ages," but Jesse Helms disagrees, what charges can be filed? That I was not
a good enough judge of the material? That my opinions differed from Senator
Helms'?

"Voluntary self-rating" runs into problems, such as this example. One is
left with ratings by _others_, e.g.. ratings boards, and even then there
are variations of this same problem. The "Lesbian Alliance" is going to
have different ideas of what children should be exposed to than the
"Christian Crusade" will ideas about. Who is right? ("What is truth?")

So, one is then left with government censors. And the Constitution is
pretty clear about this.

>        D. The government in a country such as China uses rating systems to
>help them filter.

Doesn't have much to do with _my_ words or pages. It ain't the business of
the U.S. court system--which is what we're talking about here--to worry
about what some Maoists think is proper for young cadres to read.


>(They do not get around the question of whether parents should be permitted to
>restrict children's information access on grounds such as obscenity at all.
>Given that no harm has ever been proven from children's viewing such material
>(_possibly_ unlike the data on violence, although that is quite disputable and
>not an argument for censorship), whether parents properly have that degree of
>sovereignty over their children is questionable. Children are not the property
>of their parents.

I disagree with the overall conclusions of this line of reasoning. (Though
the "children are not the property of their parents" point is heavy
phrasing, and hard to take issue with directly, due to the language.)

I don't know if exposure to sex is good or bad. I see a lot of aimless
souls. I see a lot of AIDS. I'm unpersuaded that the proper solution is
just to teach "safe sex" and proper condom-donning behaviors to fourth
graders. If my neighbor wants to expose her children to this, that's her
business.

In any case, while children are not for their parents to do with as they
please, a reasonable Schelling point has been that I will not force other
parents to expose their children to the teachings of Cthulhu if they will
not demand that my children sit through propaganda tapes about the joys of
homosexual sex. The status of children in a free society is a thorny issue,
but I reject the increasingly-prevalent notion that society knows what's
best and the government will decide what influences can be used with
children. A society which takes away this parental choice is a terrible
society.

I see much of the debate about violence and sex in society and in the media
as being this kind of "battle for the hearts and minds" of children. I
don't want some sociologist telling me that "Terminator II" is "bad" for my
child but that "The Story of O" should be mandatory for my 11-year-old to
watch.

--Tim May


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