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Hey….hands off my (free) porn!

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We here in Boston like to think of ourselves as relatively sophisticated folk. We know that Boston is one of America’s oldest and most historical cities. We’re proud of our prestigious world-class universities. We enjoy our thriving technology and entrepreneurial scene. We even have some great restaurants. But just like most other people in any American city, we really like….our porn. Yes, that’s right: We uptight New Englanders are known for maybe, sometimes, occasionally glancing at a porn site or two. And we especially like our free porn sites—particularly given our reputation for New England thriftiness. (There’s a reason Filene’s Basement started here…)

But in Rhode Island, our nearby neighbor? Not so much. I’m not saying that Rhode Islanders don’t like their free porn. I’m sure they do—perhaps even more than we Bostonians. But their politicians certainly don’t like it very much, being free and easily accessible that is. So a couple of greedy or puritanical or greedy and puritanical Rhode Island politicians proposed a bill that would impose a one-time $20 fee on all residents who want to access sexually-explicit content online. The bill would require ISPs to block “sexual content and patently offensive material,” but residents could deactivate it after paying the fee. And what happens to all those fees? They go to the state Attorney General’s office to help fight human trafficking. It’s a noble purpose backed by ignoble legislation.

You can read the text of this “patently offensive” bill here if you’d like. Don’t worry, it’s still free for now. Think of reading it as a form of academic masturbation….without the payoff. The legislation does address some legitimate issues such as blocking child porn, revenge porn, or sites that “facilitate” prostitution and human trafficking (which is a bit vague). Few would argue that such sites shouldn’t be blocked or restricted. But why not just focus on those areas where political and societal consensus could be reached more easily? And where it could pass constitutional muster? Its vagueness and overbreadth are deeply concerning (and I won’t even raise the net neutrality argument). Because as you know, if you watch legal porn between consenting adults it must mean that you automatically support child porn and human trafficking too. So why not just thrown them all in a bill together, kind of like one big pulsating legislative orgy?

Perhaps these politicians believe their bill is akin to the Children’s Internet Protection Act (“CIPA”), which requires schools and libraries to block access to content that is obscene or “harmful to minors.” But the scope of the Rhode Island bill is far broader and targets certain content regardless of age, and has a much different motive behind it. Think of the fee as a “porn tax” that a Rhode Islander would have to pay to view certain content which the state absolutely, positively deems to be obscene, lewd, patently offensive, bereft of any redeeming value, and not fit for human consumption. Unless you pay $20. And then…..have at it! This piece of principled legislation does Buddy Cianci proud.

Let’s face it: There’s an awful lot of porn online. And a lot of awful porn too. But so what? This is America after all; lots of good content existing with bad content are as American as apple pie. What’s “patently offensive” to some may not be to others. For example, I consider sites that revel in showing victims of grotesque and horrifying deaths to be patently offensive. Or sites that glorify school shootings. Such content may not be “obscene” as Rhode Island defines the term (R.I. Gen L. § 11-31-1), but it is patently offensive….to me. However, two consenting adults having sex and enjoying themselves for all to see? Not patently offensive….to me (and sometimes even educational). So you know what I do? I freely choose not to visit those sites. But I don’t feel it necessary to legislate my moral views. And if I did, I certainly wouldn’t provide a $20 morality waiver.

Exactly how ISPs would implement this type of “digital blocking capability” (as stated in the bill) remains unclear, but it would obviously involve filtering technology similar to what schools and libraries use to comply with CIPA. And just like the problems CIPA caused when it blocked legitimate websites that don’t have anything to do with porn (such as LGBT sites, rape discussion forums, sites promoting sex education, etc.), there’s little doubt this bill would do the same. The bill’s sponsors realize it too, given its language when this happens: “If the digital blocking capability blocks material that is not sexual content or patently offensive and the block is reported to a call center or reporting website, the material shall be unblocked within a reasonable time, but in no event later than five (5) business days after the block is first reported.” (emphases added).

So let me get this straight: If you’re a rape victim, you need to call it in and wait up to a week to read what a mistakenly prohibited site may say about the “morning after” pill? Or if you’ve been exposed to HIV, you need to wait a week to read about post-exposure prophylaxis (which must be taken within 72 hours)? Outrageous. I suspect this bill is nothing more than a ploy by these politicians to get some attention and do some fundraising. Or perhaps to satisfy a particular constituency. Or maybe because certain self-righteous legislators just can’t resist taxing our guilty pleasures. It would be surprising if the bill even gets out of committee—definitely not in its current form. But even if it is somehow signed into law, it would be subject to immediate legal challenge. It’s vague, overbroad, unduly burdens free speech, and would ultimately be deemed to be unconstitutional under the First Amendment.

Supreme Court Justice Potter Stewart famously said in Jacobellis v. Ohio that he couldn’t easily define what obscene content is, “But I know it when I see it.” The same principle applies here. I can’t define what “bad legislation” is either. But I know it when I see it.

© 2018 Daniel A. Batterman

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