The Supreme Court has played a major role in perpetuating our cultural ambivalence about sexual expression, on the one hand by affirming that sexual expression is constitutionally protected – at least for adults – and on the other by sanctioning government censorship of otherwise lawful sexual expression in the name of “protecting” minors. The result hasn’t always been pretty.
Can Congress protect minors from “obscene and indecent” material online? In Reno v. ACLU (1997), the Court said “no.” Not only was the definition of “indecency” too vague, but the law would inevitably infringe on the free speech rights of adults. This was impermissible: “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”
Can Congress impose special burdens on adult cable channels to protect minors from inadvertent exposure to “signal bleed” containing fleeting sexual images? The Court again said “no” in U.S. v. Playboy (2000): Cable subscribers who cared enough could request that such images be blocked. The case gave the Court an opportunity to wax poetic on the subject of free speech:
…The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.
Can Congress require schools and libraries to install filters and blocking technology to protect minors from exposure to sexual content? The Court said “yes,” in U.S. v. American Library Association (2003). The justices were assured that adults’ rights to constitutionally-protected material would not be restricted, since adults could request that the library unblock a site or disable the filter. No similar concern was expressed about over-zealous blocking where minors are concerned, since “the interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling.”
Can federal officials fine TV and radio broadcasters for “indecent” programming? Since 1973, even as cable television and the Internet have increasingly offered a vast universe of explicit content, the Federal Communications Commission has claimed the authority to keep “indecent” content off radio and broadcast television. While the FCC’s definition of “indecency” has shifted with the political winds, the FCC has steadfastly defended its rules as necessary to protect minors.
In the most recent chapter, the FCC fined several broadcasters for programs containing “fleeting expletives,” (read: “fuck,” as in “This is fucking great!”), and fleeting nudity. In FCC v. Fox Television (2012), the Court held that the FCC had not given the networks adequate notice of what would be considered indecent, but ducked the big question about whether a government agency should be able to fine a broadcaster for failing “to exercise ‘reasonable judgment, responsibility, and sensitivity to the public’s needs and tastes.’” That sounds like a job for an old-fashioned censor, not government officials.
The law on sex and censorship is confounded by conflicting demands: the right of adults to sexual expression, a topic of enduring interest and importance, and the impulse to protect minors from sexual knowledge. The result is an inconsistent and confusing body of law, often at odds with itself.
Uncertainty over just how far the Constitution permits regulation of legal expression in the name of protecting minors has pernicious consequences in the unending stream of books and other materials challenged in schools and libraries because of sexual content, the frequent challenges to nudity in art, efforts to restrict discussion of LGBTQ issues and sexuality in public schools. Etc., etc.
Where minors and sex are concerned, we live in the United States of confusion.