|William L. Clements Library, University Michigan|
In our own blasé, R-rated “sex sells” culture, most all of us— many not so happily— assume that the sexual revolution had been won in the 60s . Sexual politics of important lifestyle concerns--gay rights, abortion, discrimination and sex education, rage on. But we’ve won the right to titillate; so long as private business allows.
The Gilded Age’s turn- of- the- century brand of censorship was largely governmentally directed. Our own federal laws (portions of Comstock are still on the books) and state censorship still restrict our sexual expressions in everything from sex toys to attempts to levy taxes on mainstream book sellers for books that might have sexual content.
But the greater threat is that of business policies that shape our public discourse, in large part censoring adults under the auspices of child protection.
Sexual accountability and responsibility do depend upon balancing freedoms with protections.
Appropriate-age education of children is indeed a huge societal concern.
But the issue of censoring adults lies between the intercourse of individual and business constitutional rights of speech (including rights to restrict) within the Supreme Court’s compromise decision of empowering local “community standards,” while leaving undefined what constitutes an online “public square.”
That’s because the dirty little paradox is that American’s sexual speech is not explicitly protected under the First Amendment, and therefore has no one superseding law to protect it. What is obscene or just offensive, what has cultural value or is purely prurient? A sample ride between Supreme Court Justice’s statements about private and public sexual expression shows the dilemma.
Stewart— “I know it when I see it;”Ironically, it might be the legal victories of porn, that also helped access but hurt the greater freedoms of sexual education and the arts. Compelled by its commercial thrust to adopt a euphemistically designated “adult” label, the term became code not just for porn but for all sexual content, with the connotation that “adult,” and therefore its audience, were synonymously an indulgence in accessible yet “naughty” taboo.
Frankfurter— (the Government may not) "reduce the adult population . . . to . . . only what is fit for children.”
Stevens— “…the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."
Kennedy— “…emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Scalia’s dissent to Kennedy’s majority opinion— “It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
Online companies censor for business convenience, not moral conviction.