Among the many problems with Supreme Court Justice Potter Stewart’s infamous “definition” of obscenity — you know, “I know it when I see it” and all that — is that it’s lazy. Defining words and terms is a very difficult process, especially when languages have to keep evolving so they can provide the tools we need to explain new developments in our cultures, and a certain word or term may have different definitions depending on the context in which it’s used. Legal definitions may be the most important of all, simply because of the power they have to bring down the power of the state on private citizens whose actions may transgress the laws that rely on those definitions, and as the ultimate legal body in the United States, the Supreme Court would appear to have a critical obligation to settle legal definitions for all the other courts in the country. By failing to provide a definition of “obscenity” or “pornography” (or whatever you want to call it), Justice Stewart, and the other justices who ruled in Jacobellis v. Ohio, left the country in a legal fog that it’s still fighting through to this day, as evidenced in controversies in my lifetime ranging from the 2 Live Crew’s As Nasty As They Wanna Be to Andres Serrano’s Piss Christ.
Coming up with these definitions is, to be fair, incredibly difficult; it should go without saying that the problems we Americans have when we debate whether displays of sexuality or violence are more “obscene” than the other is an exemplar of how volatile the consensus-forming process can get. The definitions we use in our private lives and public discourse, however, usually aren’t as fraught with potential problems as legal definitions are. There are a lot of things I would personally define as obscene to me, but I would never dream of advocating for legally restricting access to nearly all of those things; not only would doing that go against my own personal beliefs about freedom of speech, but I believe that part of being a conscientious citizen is being regularly exposed to ideas and concepts that offend you, so you can be aware of what’s out there in the world. Censoring things just because they offend you, and you don’t want to have to deal with them, is another example of laziness; being a citizen in a democracy means engaging with (what you perceive as) the good and the bad elements and ideas in your country.
This ties in to my belief that legal definitions of “obscenity” and the like need to be as narrowly-focused as possible, because once the power of the law can be used to enforce one of these concepts or terms, the potential for abuse by legislators and such grows exponentially. A broad definition of these terms can easily become the ultimate cudgel with which any lawmaker can essentially bully a citizenry into behaving a certain way. All they have to do is claim that opposing political views are “obscene,” and law enforcement becomes an ideological weapon, both figuratively and literally, to attack their enemies with. This would be unacceptable in any government, but in one like modern-day America’s, where the creeping authoritarianism of the past fourteen months is quickly progressing to a brisk walk, the mere thought is nothing short of chilling.
Setting aside the issue of sexually-oriented content for now, the proposed legislation in Rhode Island would require Internet providers to put “patently offensive material” behind a paywall, and that gets us right back to the problem of how we define those terms. Under such broad language, an Internet provider in Rhode Island could block access to all websites of a certain political ideology — and thus, through blocking websites of political candidates who espouse that ideology, cut off potential donations from Rhode Islanders — because their leadership believes that expressions of opposing political views are “patently offensive.” If the red-hot language of the gun control debate after the Parkland shooting is teaching us anything right now, it’s that the rhetorical divide in this country is getting even more heated and fractious than ever before, and I doubt that’s going to change soon.
The prospect of this kind of legislation passing in Rhode Island would be bad enough on its own, but in the context of the ongoing Net Neutrality crisis in America (and I don’t use the word “crisis” lightly, believe me), it feels like the proposal in Rhode Island is a harbinger of effective censorship that may soon be endemic across this country. If Congress doesn’t stop the pending FCC ruling to gut Net Neutrality, then people from coast to coast may soon find themselves in a similar position, where the information they have access to online, and the slate of candidates whose campaign websites they can reach to donate money, may soon be subject to the whims of their local Internet providers. (It can never be repeated enough that a sizable chunk of the American public only has access to one Internet provider where they live, which makes this possibility all the more harrowing.) While it’s promising that states like Washington are trying to enforce Net Neutrality where they have power, the recent fights that Jeff Sessions’ Department of Justice have been waging over the Tenth Amendment in regards to immigration law enforcement point to the possibility of the current administration finding ways to stop states from maintaining open access to information for their citizens.
More to the point, Internet service providers could also target the powers they may gain if Net Neutrality is repealed, in order to give other people or organizations a hard time. As always, the sex work industry is a prime target because of popular misconceptions about it (and how it continues to rile up the right-wing base, and get just enough moderates to make it seemingly popular), but it’s far from the only possible victim of such a tactic. It would be just as possible for an Internet provider to block access to the websites of companies that sell vaping stuff, or the website of the local paper that doesn’t unequivocally tote the ISP’s company line, or even this very website. Even if Internet providers don’t outright block access to these sites, forcing customers to pay more to access certain parts of the Internet creates a disproportionate burden on poorer Americans, who are already the most likely to suffer under these schemes.
Right-wingers can claim this is about “giving Internet companies the freedom to innovate” all they want, but to twist Justice Stewart’s famous phrase, I know bullshit when I hear it. Forcing Rhode Islanders to pay more to access “patently offensive” material online, and repealing Net Neutrality rules, are little more than smokescreens for an attempt to take over the information economy by making certain information, deemed by corporate America and its enablers in government to be “obscene” or whatever word they’ve market-tested for 2018, essentially inaccessible to a large swath of America. We can (and should) continue to debate how we define the concept of obscenity, but if we don’t act firmly and decisively now to keep information access out of Corporate America’s hands, then we may lose access to the knowledge that will allow us to even have that debate in the first place.