Patricia Nell Warren

Indiana Censorship Law: an attack dog in sheep's clothing

Filed By Patricia Nell Warren | March 27, 2008 4:54 PM | comments

Filed in: Entertainment, Fundie Watch, Marriage Equality, Media, Politics, Politics
Tags: censorship, free speech, harmful to minors, Indiana HB 1042

Indiana HB 1042, which requires anyone selling "sexually explicit" material to pay a licensing fee to the state, has a lot of Hoosiers hopping mad -- but it's not a new idea. It's an attack dog in sheep's clothing that has been through a lot of costume changes. For the last 20 years or so, bluenoses in American government have been trying to figure out how they can get business into censorship harness. In the past, their laws got swatted down by the U.S. Supreme Court for violating the First Amendment. But that trend may be changing for the worse.

What amazes me most, about these legal battles over free speech, is the meager attention they get from the major media and the American public as a whole.

So far, the biggest efforts were federal attacks on the World Wide Web. In 1996 -- on President Clinton's watch -- Congress passed (and Clinton signed) the Communications Decency Act (CDA). This federal law criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. The feds insisted they were only targeting the kids' ability to view hard-core pornography online. They had the naive idea that kids could be kept away from porn if website owners would monitor access to their pages and require proof of age (like a credit card).

Being an ACLU member, I stepped forward to be one of the ACLU's plaintiffs, and testified against the CDA in federal district court in Philadelphia. As an author and book publisher (Wildcat Press), I recognize that I have a very personal stake in Internet free speech. The huge potential of overreach by this law was clear to me -- its power to stifle the flow of information and cultural expression in areas that are NOT porn but are regarded as dangerous by many conservatives. In 1997, the U.S. Supreme Court struck down the CDA as unconstitutional.

Undaunted, the Congressional bluenoses knee-jerked back with the Child Online Protection Act. COPA aims to criminalize the actual selling of anything "harmful to minors." This would certainly include LGBT booksellers and publishers who sell online. As a book industry professional, I also recognized that online bookselling is tied to bookselling in brick-and-mortar stores -- many distributors and chain stores (like Barnes & Noble and Baker & Taylor) -- have their feet in both marketplaces. Not to mention individual stores, like Powell's and many smaller stores that sell both online and through doorways on the street. The first major COPA prosecution of a bookseller would put a major chill on the book industry. All kinds of books that "might" be deemed questionable would instantly vanish from circulation. After all, who wants to risk being charged with a federal crime?

Once again the ACLU went on the offensive. I was a plaintiff in this one too. The COPA case went to the U.S. Supreme Court, who bounced it back to the federal district court for trial. In March 2007 the federal judge found COPA unconstitutional. However, the feds are appealing. If COPA is found unconstitutional, the bluenoses will just keep on trying to put together a package that the Supreme Court will be okay with.

On the state level, Indiana is not the first state to loose the attack dogs of censorship. To know more, the interested reader can go to the ACLU page on state laws . This page hasn't been updated in a while, but it still gives a horrific overview of the dozens of state laws since 1990. Few, if any, of these court cases have made the 6 o'clock news.

In my home state of Montana, even a county -- politically conservative Ravalli County -- passed a law in 1994 criminalizing the sale of "indecent" materials. The law was lobbied into place by a tiny one-man local organization, Montana Citizens for Decency Through Law. It took the Montana ACLU five years of fierce fighting to get the law axed in court. The law essentially gave local police the power to enter a home on suspicion and look for "harmful to minors" books, magazines and other materials. Its definition of "harmful" would have included books like Catcher in the Rye and classics like Romeo and Juliet.

The bluenoses will always pretend that they're nice little sheep who are just fighting to "project the children." They're "just targeting hard core porn." And I agree that porn is ugly stuff -- it victimizes and degrades women and children, and men too. But we already have laws for prosecuting pornographers.

Unfortunately these new laws are really intended to sink their fangs into a broader area of speech. There are a lot of subjects that the religious right consider "harmful" to minors -- including feminism, LGBT, sexual health, birth control, abortion, non-Christian spirituality, and non-traditional views of Christian history. The bible-mongers don't want kids to read any of this stuff. If they can remove it from the market for kids, perhaps they can get it off market for adults as well. Hence the efforts to write laws that can facilitate prosecution in the broadest direction.

Yeah, I wish that the average American would go less ga-ga over the tabloidy stuff, and go more angry on these laws that will determine what they can legally buy, or sell. That includes many LGBT people who don't seem to worry about censorship much. Hello, Bilerico's ability to discuss issues like gay marriage depends on having free speech.

The way the U.S. Supreme Court is veering right, they're going to be less and less on our side when it comes to speech.

P.S. I love and respect wolves, so I don't speak of "wolves in sheep's clothing." Among other things, wolves don't pretend to be something they're not.


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For once, Texas did a good thing, they recently changed the laws that criminalized the sale of sex toys!

In the past, some stores got around the law by calling things "educational materials". Now Texas retailers do not have to go to those lengths in order to sell those "little helpers" that women, and men, love so much.

Anyway, I suppose one of the first books on the list of "harmful" material might be a little tome by Charles Darwin called "Natural Selection". You know how dangerous something like evolution can be to an innocent young mind.

That list of "harmful books" is appalling. I would invite you to check out the list of books that have been censored, banned or challenged at http://www.banned-books.com/bblist.html

Many of the restrictions or challenges to our personal rights, especially to sexual freedom as a fundamental human right, have come under the banners of protection of children, protection against trafficking and protection of the "family."

We are still debating on the terms dictated to us by those who would deny us our fundamental rights.

So - how do we reshape the dialog?

This would definitely affect Bilerico Project. Our sex advice column or about half of Mattilda's posts would push us over the edge. My post from Big Brother would as well.

We're working to stop it. I've sent copies of your post to every LGBT and blogging mailing list in the state that I have access to.

diddlygrl,

Did Texas change the law? Or did the federal courts step in and nullify it? I seem to remember a court decision, though I admit I haven't followed the Texas Lege this session.

Thanks, Bil. This piece has been up for 14 hours, and I notice that few people have commented as yet. As I said, many of our people -- especially younger people -- don't get it yet about what's happening on the censorship front. It's our job to educate them.

Gay History Month is coming up soon, and I hope Bilerico will overflow with pungent posts about our history -- especially aspects of it that tend to be forgotten or overlooked.

Only half a century ago -- meaning in the lifetime of LGBT people much younger than I am -- we had NO right to communicate in print or broadcast across state lines. In the early 1950s, the U.S. Post Office seized copies of our first real magazine, ONE, saying it was obscene material as defined by the 1873 Comstock Act and couldn't be sent through the mail. The case went all the way to the U.S. Supreme Court, which shocked the stockings off the U.S. government by not only reversing the rulings of lower courts but also by narrowing the cruel squeeze of the Comstock Act.

At the rate the U.S. Supreme Court is turning itself into a rubber stamp for out-of-control federalism, Americans won't be able to rely on it much longer to defend any sort of dissenting speech.

In answer to the question about the Texas vibrator case -- the Fifth Circuit court did throw out the Texas law banning sales of these items. See CNN story at
http://legalpad.blogs.fortune.cnn.com/2008/02/14/a-valentines-gift-vibrator-sales-legalized-in-texas/. I'm not sure whether the case is being appealed.

This is a dreadful bill, and I hope that the LGBT community in Indiana puts it on our roster as something we need to fight. Fighting it in the Statehouse will be quicker than litigating it for years in the courts.

This is a generally excellent piece and Ms. Warren is to be commended for acting as plaintiff in various ACLU First Amendment cases.

One thing troubled me, though. Ms. Warren appears to believe in the First Amendment and free speech only so long as it is speech that *she* does not find harmful. Specifically, Ms. Warren writes:

"The bluenoses will always pretend that they're nice little sheep who are just fighting to "project the children." They're "just targeting hard core porn." And I agree that porn is ugly stuff -- it victimizes and degrades women and children, and men too. But we already have laws for prosecuting pornographers."

From this, it seems that Ms. Warren approves of laws that prosecute "pornographers." And there are all too many laws that go after "pornographers." But whether one is a "pornographer" seems to be in the eye of the beholder (or lawmaker).

The First Amendment has been interpreted to protect pornography, but not "obscenity." Obscenity is loosely defined as that which would be considered prurient and without redeeming value, according to community standards.

By this definition, even Ms. Warren's own beloved materials (dealing with lesbian and gay issues) could be considered "obscene" by many communities and thereby censorable under the "obscenity" standard in place today. After all, what is different between "degrading to women" (Ms. Warren's rationale for banning "porn") and "dangerous to children" (the rationale for many of the current attacks on the First Amendment, including the one that has prompted this article).

Ms. Warren -- aren't you really donning the same sheep's clothing as the "bluenoses" but just drawing the line in a different place?

Prurient
adjective, meaning;

1. having, inclined to have, or characterized by lascivious or lustful thoughts, desires, etc.
2. causing lasciviousness or lust.
3. having a restless desire or longing.

By definition, most of the material that has to deal with gay and lesbian issues do not fufill the meaning of the laws on obscenity, since they are not lascivious. Also, those materials can be argued to have a reedeming value as informative material.

Generally, in logic and legality, the defining view is assumed to be made by a reasonable person. So the 'community standards' that would be enforced would be those standards as applied by said reasonable person. Just discussing issues related to homosexuality would not be in violation of any type of standard for such a person.

I do not think Patricia is in any way donning 'the sheeps clothing' in regards to this.

Hi DiddlyGrl,

I'm afraid I have to respectfully disagree. First, there is a difference between "pornography" and "obscenity." "Obscenity" is permitted to be censored but "pornography" is not. The way a "reasonable person" is determined in practice is by what the 12 men and women on the jury consider is "reasonable." I dare say that there are some parts of this country where a majority of the people believe that anything having to do with lesbians and gays is by its very nature offensive. Surely you must have heard of some of these places.

I get concerned whenever I hear things like "pornography is degrading to women." I think that some women find pornography degrading and some women find it a big turn-on. I think that some women's participation in pornography is degrading and that some women's participation is empowering. Either way, I would not want members of the community to decide whether I could watch, create, or distribute videos, books, magazines, etc. that showed people having sex in all its wonderful varieties.

One man's (or woman's) "pornography" is another's free expression. Let's not trample on this.

With all due respect, Julie, the fact is -- in real life out there, both pornography and obscenity ARE being censored. But communities very much differ in how they are interpreting those standards of what "pornography" is, and what "obscenity" and "indecency" are. My concern is the danger to all of us when the community interpretation -- including that of the juries you mention -- is very broad and very extreme.

As an example, I suggest you go look at a website called No More Pornography, at http://nomorepornography.org/index.html. It's based in Utah, where the Mormon Church is campaigning for more "decency." But the site has links to Focus on the Family, as well as another Utah organization called Communities for Decency.

If you read it carefully, you'll see that these groups are not just targeting the hard-core pornography industry. They are going after magazines like Playboy, as well as what they call "sexually suggestive advertising" on billboards. Presently they are trying to get Alison Bechdel's book FUN HOME out of classrooms at the University of Utah, where it's on a reading list intended to introduce students to different genres of literature.

To these people, ANY positive and sympathetic mention of homosexuality constitutes "pornography" and they aim to remove these mentions from any visibility in their worlds, whether it's schools or libraries or billboards or movies or the Internet.

These ultraconservative religious people are extraordinarily tenacious...like the Terminator, they don't ever stop, no matter what subject they object to, where it's gays or evolution or simply youth rebelliousness. Example: they've been trying to get CATCHER IN THE RYE out of libraries ever since it was published in the 1950s, because they consider it an immoral influence on young people.

So this is the real motive behind the kinds of legislation that I'm objecting to.

In response to Ricci Levy's question, one way to change the terms of the debate is to relentlessly challenge the Right (and pseudo-Left) whenever they raise the bugaboo of "harm to minors" or "degradation of women." Simply point out that the bulk of the relevant scientific research doesn't support these claims.

My attitude toward the term "reasonable" is that its appearance in a piece of legislation is the sign of lazy legislators. They're trying to fob off onto a jury the decision of what's acceptable or isn't. In effect, I'd argue, that makes it ex post facto lawmaking: a rule is being made (by a jury) to ban something, and then applied retroactively. A quote from Einstein is apt here: "What some people refer to as common sense is nothing more than a collection of prejudices accumulated before the age of eighteen."

The best thing to do here in Indiana is to go to a Christian bookstore and look for the sex education books. They all have 'the birds and bees & God' type books. Once found on the book shelf, report 'em. Get every Christian book store listed as a pornographer.

Think that will give the far right something to do in an election year, Hoosiers?