Fight of the Century

by Michael Chabon

  And governments, responding to that impulse, took the simplest option. They tried, when the Internet became a thing, to make the Internet a place that would be safe for children.

  The way we most often try to codify an official response to large and unruly questions is to fence them in with laws. The first significant attempt by the US government was through Title V of the Telecommunications Act of 1996, better known as the Communications Decency Act (CDA). It was signed into law by President Clinton in 1996 and attempted to target indecency and obscenity on the Internet by making it a crime punishable by two years in jail, a $250,000 fine, or both, to engage in speech that was “indecent” or “patently offensive,” if that speech could be viewed by a minor.

  Within five months, a panel of three judges in Philadelphia had blocked part of the CDA. In July 1997, a federal court in New York struck down a further section, arguing that its reach was too broad. This culminated in Reno v. ACLU (1997), where twenty plaintiffs, including groups representing cyberspace rights and gay and lesbian rights, and the ACLU, challenged the act on the grounds that its provisions would criminalize expression protected by the First Amendment—and specifically that the terms indecent and patently offensive were both vague and constitutionally overbroad. The Supreme Court agreed, and a landmark 7–2 opinion delivered by Justice John Paul Stevens firmly ruled that the CDA placed an “unacceptably heavy burden on protected speech” that “threatens to torch a large segment of the Internet community.”

  “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship,” wrote the Court. “We presume government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.”

  The government tried again. In 1998, Congress introduced the Child Online Protection Act (COPA). It criminalized the posting on the Internet, for “commercial purposes,” of material that was “harmful to minors,” to the tune of a $50,000 fine and six months in prison. It defined material that was harmful to minors as:

  any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—

  (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

  (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

  (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

  Immediate and obvious problems with this (apart from the oddness of the word simulated, which puts a photograph of an oil painting of a naked woman into the same category as a photograph of a naked woman) would be that applying “community standards” to the entire Internet, the most conservative and restrictive communities in the United States would be able to set the standard for everywhere else, in the United States or in the rest of the world. “Community standards” change from place to place, but any of the communities in any of those places could object to what they saw, and the Internet would bow to the most restrictive and the most easily upset. And there is always someone, somewhere, who will object to something.

  COPA left “for commercial purposes” vague; even if a website is not obviously selling you something, it can still exist for commercial purposes. And what if it is trying to inform you? COPA could have criminalized gynecological websites, websites with information about sexually transmitted diseases, sexual advice columns, and art history sites. It would have meant that adults would have needed to input credit card information before accessing any “commercial” website with adult content, including LGBT information, causing privacy issues (and ignoring the possibility that people under age eighteen can have, or obtain, credit card numbers). And above all, it tried to apply local law to the Internet, which is not local: adult content is not only found on US websites.

  * * *

  The case went back and forth between the Third Circuit and the Supreme Court from 2002 until 2009, when the Supreme Court declined to hear the third appeal, effectively striking COPA from the books.

  Ashcroft v. ACLU (2004), which ended COPA, was a landmark case. It upheld the injunction, predominantly on the grounds that there were less restrictive ways of tackling the issues than the ones that COPA was attempting to put in place. Justice Anthony Kennedy delivered the majority opinion, explaining that “content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.”

  (Though Ashcroft v. ACLU is the more recent and more often cited, it is intimately entwined with Reno v. ACLU, and observations from the latter cut to the bottom line over the debate on online restrictions. Justice Stevens’s majority opinion in 1997 argued that “the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”)

  Justice Kennedy also pointed out that “the factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace.”

  This, as we’ve seen from attempts by legislators in both the United States and other countries to understand the influence of social media on the 2016 election, remains a critical issue, and one that’s not going to be solved any day soon. COPA’s attempt to criminalize pornography and sexual content on commercial sites hosted in the United States would have been powerless in a world where users (including children) could simply jump the fence into the big wide world. Nobody is an island in cyberspace, and no country is either. Even islands aren’t really islands any longer. The people who make our laws are always one step behind this new realm they’re trying to control, with its strange and flexible geographies.

  Overreaching attempts to protect the rights of some are bound to have an adverse impact on the freedoms of others. A recent example has been Tumblr’s 2018 decision to ban pornography from its platform, incensing a number of users (including young people, sex workers, and members of the LGBT community) who had relied on it as a relatively safe space for interaction.

  Which brings us back to where we came in: the attempt to ban books like Lady Chatterley’s Lover in order to protect the children.

  The decisions in both Reno and Ashcroft make explicit reference to the rights of adults, the former in part decided on the grounds that the CDA was an abridgment of the First Amendment because it didn’t allow parents to decide what material was acceptable for their children. In 2007, Senior Judge Lowell A. Reed Jr. of Federal District Court, in the decision that the Supreme Court declined to hear or to overturn, stated that “despite my personal regret at having to set aside yet another attempt to protect our children from harmful material,” he was blocking COPA because “perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

  Children live in a world of adults, and they, in their turn, will become adults one day. We do not and we cannot protect children from the adult world by making the adult world a place safe or fit only for children, and the Internet is, for good and for evil, a part of the world, the world as represented by information. As adults, we owe it to our children to protect them, yes. As a positive thing: through communication, by choosing and permitting, as best we can, strictly or permissively, what they encounter, in the world, on screens and on pages. We have to talk to them, inform them, have the awkward and embarrassing conversations we might rather avoid but are necessary if they are going to navigate the adult waters ahead of them. It’s our responsibility to do that.

  We do it
by helping our children to grow and to learn. We do it by letting them explore and by setting the bounds of their exploration ourselves. We do it by helping them. We don’t do it—we can’t do it—by removing the adult books from the shelves of a library and by trying to make the whole world into a nursery. If we do, we will find ourselves scraping away the freedoms of the adults who will come after us in our attempts to protect the children they are now.

  CITY OF CHICAGO V. MORALES (1999)

  Under Chicago’s 1992 Gang Congregation Ordinance (GCO), it was a crime for criminal gang members to loiter in a public place. In practice, this meant police officers could order to disperse any group of two or more people they believed to contain gang members. Anyone who didn’t obey violated the ordinance and was subject to some combination of a $100 to $500 fine, six months in prison, and 120 hours of community service.

  During the three years of its enforcement, the GCO resulted in roughly eighty-nine thousand dispersal orders, leading to approximately forty-five thousand violations. The majority of people targeted were black or Latinx, many of whom had no gang affiliation whatsoever. In City of Chicago v. Morales, the ACLU represented plaintiff Jesus Morales, arguing that the ordinance was too vague to satisfy the Fourteenth Amendment’s due process, and therefore unconstitutional.

  Generally a criminal law will be found unconstitutional for vagueness if an ordinary person cannot understand what conduct it prohibits and it authorizes or encourages arbitrary and discriminatory enforcement. Writing for the Court, Justice John Paul Stevens found that the GCO violated both prongs of the vagueness test. Under the common law, loiter means “to linger in a place with no apparent purpose,” but is that the definition an ordinary person will know? Similarly, how long must the “loiterers” remain dispersed? How far must they go? The ordinance provided no answers to these questions.

  On the second prong, the law granted police officers absolute discretion in enforcement. With no formal guidelines for identifying who was loitering versus who lingered with a purpose, officers were free to enforce the ordinance according to their own personal whims and biases. Officers could order everyone to disperse, or no one at all. The law was accordingly struck down as an unconstitutional infringement on personal liberties.

  We Gather

  JESMYN WARD

  The Supreme Court struck down Chicago’s antigang loitering law, which disproportionately targeted African American and Latino youth who were not engaged in criminal activity. The law had resulted in the arrest of 45,000 innocent people.

  When I was a child, Easter was a major holiday in my community. Most of us were black, semidevout Catholics, so we rose early on the holiday, attended Mass in pastel and cream outfits specifically sewn or purchased for the day, wore full-skirted dresses and crisp ties. After Mass, we changed into less formal outfits, again specifically sewn or purchased for the day. My grandmother was a seamstress in her youth, so sometimes she made my brother’s and sisters’ outfits, tailored them to our short torsos, long legs, slim arms.

  After the midday Easter meal, we all went down to the local baseball park where our team was part of the regional Negro league; our team was the DeLisle Yellow Jackets, named after an especially pernicious wasp-like insect plentiful near woods where there are deer trails. They are at their worst during the late spring, when they swarmed us whenever we walked outside and bit us so badly we were left with raised red welts. The swelling and pain took days to subside. Our baseball players wore black and yellow and white uniforms, and they were good enough that every year, they were given pride of being the home team on Easter Sunday. One man was DJ and sportscaster all at once, narrating the game and then playing blues records during breaks between innings.

  At the edge of the field was a tiny, low-ceilinged building that contained pool tables, a small dance floor, and a bar. This was our local hole-in-the-wall blues club.

  Most years, it was already warm by Easter, so while we children played games behind the bleachers and took our tooth money to the concession stand for pickles and candy and, when we were hungrier and had a generous adult’s cash in hand, fried fish, the adults took breaks from the humid spectacle of the outside and sought the dim, cool interior of the club. Challenged neighbors to rounds of pool. Sipped a cold beer or wine cooler. Stomped the dance floor.

  When I was a child, my small town felt isolated. There was a hub of four long roads where all the people I knew, more than half of whom I was related to, lived. The one convenience store was owned by a local family. There was one Head Start, and one elementary school, one Catholic church, one fire station, one ballpark/hole-in-the-wall blues club, and wilderness around, stretching farther than my small legs could walk. Our year spun a procession of community gatherings, where we came together to celebrate our living, our survival. Mardi Gras. Easter Sunday. Mother’s Day BBQ at the park. June church bazaars. Halloween/fall festivals at the elementary school.

  An older gentleman I met from Texas once told me this: everything changes. He had watched the desert pare away the houses and storefronts of his hometown, the old die, the young flee, until his town disappeared. I was nineteen when I met him, attending college in California, and when he said this to me, I felt the pain of recognition. My town too was changing. The old DeLisle disappearing, plot by plot, as new people moved in and settled the wilderness, razed the pines, cleared acres to cultivate scraggly, threadbare grass lawns. The old DeLisle reduced gathering by gathering as our institutions faltered, our community-affirming holidays out of favor due to organizers getting old, fatigue, poverty. When I moved home briefly in my late twenties, the only community gathering still in existence was the Easter ball game.

  That year was an anomaly. It was cold, and perhaps this is why the young adults who attended the game did not want to actually sit in the park and watch. We milled and gossiped and laughed and ate and drank on the sidelines, but before the afternoon waned, many of us left. We migrated to the local park, around a mile away, where we could at least sit in our cars in the small lot rimming the playground, crank our heaters, and play music that wasn’t blues. Sometime during the afternoon, one fresh-dressed, hoodied young man let loose his 6 by 9 speakers to sing, and he pulled out into the road, which sported no traffic at all, and rode down the block very slowly, windows rolled down, perhaps swerving a bit, to regale us with music. To show off his car, freshly washed and waxed, tires burnished with Black Magic tire gel.

  Soon he was joined by another young man, another car. And another, and another, all serenading us, all smiling, usually with a compatriot in the passenger seat, whose hair was braided tightly to his scalp, whose line was less than twelve hours sharp, mugging for the growing crowd on the sidelines in the parking lot, making us grin with the pleasure of being alive under the weak spring sun, blood rushing to the music, the growl of the tires, breathing and singing and beating in the dying day. Soon there was a procession of cars driving up and down the block, an impromptu musical parade.

  The police hired for security at the ballpark down the street noticed. The next year, on our way to the ball game, we rode past the park and saw the parking lot blocked off. Four county sheriff cars posted around the park to prevent anyone from parking, and another two at a fire station nearby. More parked on the shoulder of the road around the ballpark to prevent would-be attendees from parking and socializing anywhere that wasn’t the ballpark. I glared at all of them, anger and sourness roiling in my gut, unable to articulate what it felt like to be policed.

  Before that moment, I’d had some experience with what it meant to live in a police state. I’d grown up in Mississippi, after all, a place where Parchman Prison Farm, a plantation prison that stole many from black communities all over the state, reenslaved them over decades, could and did exist. In DeLisle, county cops had stopped me more than once, asked me to exit my car, interrogated me over who I was and where I was going and who was with me, and then never gave me a ticket or reason for pulling me over. I’d heard of others i
n my community who suffered the same—black women who were more vocal about their resentment at being racially profiled, who were then handcuffed by police for pushing back. What I could not articulate at the time was this: What happens when a community is policed to the point that public gatherings are criminalized, when community members are prevented from coming together to affirm we are alive we are alive we are alive? What then happens to that community?

  In 1992, the city of Chicago passed the Gang Congregation Ordinance that prohibited individuals from loitering in public places. A city commission argued that violent crime was escalating due to street gangs and that loitering gang members intimidated “ordinary” residents. The ordinance meant that police officers had the power to ascertain that one or more people in a certain place were gang members, loitering with no purpose, and could then order them to disperse, and then arrest them if they disobeyed that order. Morales, among forty-five thousand innocent others, was charged with violating said ordinance. In the end, the Supreme Court ruled in favor of Morales, holding that under the Constitution, police officers do not have unlimited discretion to define the nature of the loitering, and such laws must be subject to sufficiently specific limits.

  This desire to police the other, to rob the alien other of the very human pleasure of gathering in public and sharing community, is not new. Black boys as young as twelve were charged with loitering in Mississippi in the 1930s and 1940s and 1950s and sent to Parchman Prison to be reenslaved. The Gang Congregation Ordinance resulted in forty-five thousand innocent people, mostly black and brown, being arrested. New York City’s infamous stop-question-and-frisk program, which is still currently active, has been the conduit for rampant racial profiling and illegal stops. According to the NYPD’s own reports, nearly nine out of ten stopped-and-frisked New Yorkers have been innocent.