The First Amendment and Problems of Political Viability: The Case of Internet Pornography
Alexander, Mark C., Harvard Journal of Law & Public Policy
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.
II. 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.
A. 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. …