The Rabbit Proof Firewall

China has been dominating censorship headlines recently, but, while we’ve been focused on the Great Firewall of China, a Great Firewall Reef has been growing in the democratic West.

Australia has one of the harshest censorship regimes among the world’s democracies.  Films like Ken Park (Larry Clark) and Salo (Pier Paolo Pasolini) have been Refused Classification and are not allowed to be sold or screened in the country.  Now, Australia is planning to bring the strictness with which they view films and television to the Internet.  Currently, the Australian Communications and Media Authority (ACMA) uses the rating system in place for films as a way to rate domestic and foreign websites.  If there is a complaint about a website, ACMA investigates.  Content is deemed prohibited if it would receive an RC (Refused Classification) or X18+ (cannot be exhibited or sold in Australia, except in two territories) rating. Content that would receive an R18+ (only people 18 and over can watch) or MA15+ (must be 15 or over, or watch with parental supervision) rating can only be displayed with a restrictive access filtering program installed by the webmaster, like a credit card verification program.  When something is deemed prohibited, ACMA can issue a take-down notice, which compels whoever runs the site to take it down.  Even more broadly, the government can issue a take-down notice if content is deemed to be potentially prohibited, meaning that there would be a substantial likelihood of the content receiving a certain rating.  Those who do not comply with the notice can be fined up to 11,000 Australian dollars, or about $9,800.  Also, a list of banned websites has been compiled by ACMA and given to internet filtering companies, who offer filtering software to those who voluntarily choose to use it.

But it doesn’t stop there: There is proposed legislation to make internet filtering mandatory for all Australians.  The voluntary filtering service that uses the ACMA blacklist will become required for all Internet users in the country.  Content that will be banned from cyberspace ranges from child pornography to discussions on euthanasia.  There is also new legislation that is being pushed by the Labor government to compel ISPs to keep track of the activities of their subscribers. It has been alleged that the government is trying to get a hold of the web browsing history of its citizens.  When certain groups asked for more information from the government, it released a key document on the initiative; however, the document itself was heavily censored.

Let this serve as a cautionary tale.  We in the United States have been lucky, so far, to avoid state censorship of Australia’s magnitude.  However, that is not to say that it could never happen here.  In the wake of more obscenity prosecutions and attempts to curtail an uncensored Internet in the name of protecting children, it is more important than ever to stand up against censorship in all forms of media.  Otherwise, we could end up with our own American Communications and Media Authority.

Stagliano Case: A Hollow Victory?

John Stagliano had his case thrown out by Judge Richard Leon early this week.  Rather than having been found not guilty based on the First Amendment, it was thrown out because the prosecution bungled their case, and the judge determined that not enough evidence was given to prove that Stagliano was involved with Evil Angel Productions. The counsel for the company said that this was a great day for the First Amendment.
However, I am not so inclined to agree with that statement.  Since the case was thrown out of court for a technicality, no precedent has been set in regards to obscenity prosecutions.  Therefore, it is possible for other obscenity prosecutions to start up in the near future, and it is unclear which way judge and jury will go in those cases.

The key question is whether the Obama administration has prioritized prosecuting pornography like the Bush administration did. Bush’s Attorney Generals Ashcroft, Gonzales, and Mukasey had made obscenity prosecutions one of their top priorities.  The number of cases filed based on sexually explicit material grew exponentially during the Bush years. In 2005, an Obscenity Prosecution Task Force was created within the Department of Justice with the sole purpose of investigating hardcore pornography and bringing it to court.  When Barack Obama was elected in 2008, it was thought that the number of prosecutions would decline to a point comparable to the figures during the Clinton years. However, neither current AG Eric Holder nor President Obama has made any attempt to get rid of the Obscenity Task Force, possibly indicating a continuation of the previous administration’s policies.  Not prepared to alienate anybody, Holder told a panel of congressmen that he will pursue, with limited resources, obscenity cases that have the “greatest potential for harm” while being aware of First Amendment considerations. Interpret as you wish.

Announcing the 2010 Youth Film Contest!

“I’m all for free speech, BUT…”

We all believe in free speech, but does that mean anything goes?  What about the speech that offends us, makes us cringe, and provokes our anger (and desire to censor)? Is there anything that should be outlawed in art, films, books, music, video games, TV, or online?  Is free speech an all or nothing proposition or something in between?  Surprise us – and maybe yourself – and express yourself about what kind of speech, if any, you think should be censored, and why.  Be creative, compelling and provocative.

Film your response in 4 minutes or less. Entries can be videos of any kind, including documentary, animation, experimental, satire, fictional narrative, or music video.

The top three winners receive:

1. Cash prizes of $1,000, $500, and $250
2. A trip with a guest to New York City to attend the Youth Voices Uncensored event in the spring.
3. A one-year complimentary student membership to the Rubin Museum of Art
4. The first place winner will received a $5,000 scholarship to the New York Film Academy.

Apply online by October 31, 2010

Contestants must be living in the U.S. or its territories (but need not be citizens) and must be age 19 or younger on the day the film is submitted. Films will be judged on content, artistic and technical merit, and creativity. Judges will be drawn from a panel of renowned writers, actors, and filmmakers. All films must be produced in 2010 and address the contest theme.             

Questions? Click here or email the Youth Coordinator at yfen@ncac.org.  To view previous winners, visit here.

The Youth Free Expression Project is a program of the National Coalition Against Censorship, and is made possible through support from The Shelley & Donald Rubin Foundation and the New York Film Academy.

Overbroad Internet Obscenity Law Comes Into Effect in Massachusetts

Massachusetts has become the latest state to try to try to protect minors from sexual content online at the expense of First Amendment rights. Like many states, Massachusetts has long had laws on the books making it a crime to provide minors with material deemed “harmful to minors.” But the law did not extend to electronic communications. Concerns about minors accessing sexual content online, and the use of email and text messages to send sexual content to minors, caused the legislature to amend the law. However, like many similar efforts in the past, the law enacted by Massachusetts goes too far by making it a crime to post or send material that is protected for adults, but might be deemed harmful to minors, on the chance that a minor might see it.

A number of other states have tried – unsuccessfully – to expand their laws protecting minors from sexual content by making it a crime to post otherwise legal material. All have been struck down or substantially narrowed by the courts. A similar effort in Congress, the Child Online Protection Act (COPA), which was similar to the Massachusetts law, was also found unconstitutional.

The Massachusetts law, the ones that have gone before it, not only infringe the rights of adults, they also have a serious chilling effect on online speech: who would post something that might be considered harmful to minors, if they could be fined $10,000 or sent to jail for up to five years?

The law has been challenged by a several groups, including NCAC member organizations: the American Booksellers Foundation for Free Expression, the Association of American Publishers, and the ACLU.

Second Circuit Strikes Down FCC Regulations on Fleeting Expletives on Constitutional Grounds

There is some good news in the prolonged battle of fleeting expletives in the media, FCC v. Fox Television Stations.  The Second Circuit Court of Appeals has ruled that the FCC’s ban on fleeting expletives is unconstitutionally vague. This comes off the heels of a Supreme Court decision upholding the FCC’s authority under the Administrative Procedure Act to issue regulations enforcing standards of decency on broadcast TV and radio.

However, the Supreme Court did not decide whether the regulations the FCC actually adopted were constitutional; they left that for a lower court to decide.  In the Second Circuit’s decision, the court deemed the current fleeting expletive regulations too vague for broadcasters to figure out what material would be considered “indecent.” Why is the word “bullshit” not allowed on television while “dickhead” is?  The regulations make broadcasters question whether they should broadcast something or err on the side of caution to avoid the risk of exorbitant fines, chilling protected speech in the process. The court observed that “it is not surprising which option they choose.”

The Second Circuit got it right.  It is crazy to think that Bono harmed children when he blurted out that receiving a Golden Globe was “fucking brilliant.” It is also incomprehensible that a network can be sanctioned if a film contains profanity in order to be historically accurate or realistic. The court opined that the controlling case on the FCC’s power to regulate speech, FCC v. Pacifica Foundation, which was decided in 1978, did not consider the technological revolution brought about by cable TV and the Internet.

It will be interesting to see whether the government tries to appeal this decision, and whether the Supreme Court is willing to look at the issue again. If so, the continuing vitality of Pacifica will be squarely at issue. Justice Thomas, for one, has already indicated that he would be receptive to overturning that dated precedent.

Song of Solomon Prevails in Franklin Township!

After a long and drawn-out challenge process, this week Toni Morrison’s Song of Solomon finally prevailed in Franklin Township!  The denouement to this extended drama came down to a special convening of the Franklin Township school board set for this past Monday evening (July 6^th).  No one knew how it would turn out.  New members of the school board, whose positions weren’t known, would have their say.  Staffs of several national organizations (including this one) held their collective breath waiting for the outcome.

Franklin Township parent and freedom-to-read defender Shelley Tudor was present at the meeting; she reported in to us and to the “Save Franklin Central Books” Facebook page she and her allies established as soon as the story could be told.  With Shelley’s permission, we share from both below:

From her letter:

Joshua, Joan, and Millie,

I don’t know how often you win these crazy fights, but YOU DID IT this time!  It was a narrow margin, but we ultimately prevailed!  I feel like celebrating and I certainly hope your team is able to.

I can not thank you enough for all your help and emotional assistance :0) I was so frustrated when I reached out to your organizations.  My first phone call with Josh was like a lifeline.  He was absolutely amazing.  When out talk concluded, I was rejuvenated and felt I finally had someone on my side.

I’ve included a brief highlight below that I emailed to our Facebook group.  Fox 59 News was on hand as well as Cindy Marshall from the [Indianapolis] Star.  Keep an eye out for the newsfeeds.  I’ll be sure to forward any links to you.

Thanks again for all you’ve done!

Shelley

Community Response Saves Beaver Statue

Over the holiday weekend, the town of Bemidji, Minnesota removed a piece of public artwork by Deborah Davis entitled Gaea.  It is a statue of a beaver, one of ten in the city.  The reason for its removal was over what was depicted on the beaver’s belly.  The artist said it is supposed to be a depiction of two hands praying; however, when glancing at it, one could easily mistake it for a portrayal of female genitalia.  Its removal, though, created an active outcry by residents and artists which forced the city council to reverse its earlier decision and put Gaea back in its place in downtown Bemidji.

Bemidji should be applauded for the way they handled the beaver affair.  They gave the statue and its artist a fair hearing in democratic fashion.  A town hall was convened where the issue could be discussed, and people could tell the city council what they thought of Gaea.  What is even more heartening is the magnitude of the response from artists and concerned citizens who are worried about the effect of censorship on their community.  More than 80 people attended, and 12 people came up to the podium and defended the beaver statue.

There are many stories of censorship across the country with some town or organization removing a piece of artwork because they are afraid it might offend someone for some reason.  It is always refreshing to hear of a case where artistic expression and free speech win the day.  As one of the speakers in attendance at the town hall meeting, Brian Donovan, said:

Bemidji has aspired to be an especially art-friendly city… We need to be careful not to chill the climate for artistic expression in the form of public art in this sculpture walk and elsewhere. Nothing chills expression more than censorship.

Elena Kagan and the First Amendment

The activities and viewpoints of Elena Kagan have been put under a microscope since congressional hearings on her nomination to the Supreme Court have started, but one area that senators have not questioned her in are her thoughts and work on the First Amendment.  Based on her writings and speeches, both in court and out, it seems that Ms. Kagan is quite alright with government regulation in speech.

In 1993, she addressed a conference on pornography and said that “statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence. Such statutes may still be constitutional,” using the doctrine of low-value speech in order to justify its regulation.  Three years later, Kagan published an article in the University of Chicago Law Review, called “Private Speech, Public Purpose: The Role Of Governmental Motive In First Amendment Doctrine,” that said that government does have some legitimate reasons for banning speech that is considered hate speech or sexually violent.  She writes that there are two exceptions to the rule against content-based regulations: low-value speech and content-based regulations that have beneficial secondary effects.

Kagan will enter a Supreme Court at a crossroads in terms of the First Amendment.  Obscenity laws are about to be tested, given the recent divergence in Circuit Court opinions on what standards should be used in order to determine what is obscene on the Internet (U.S. v. Kilbride in the 9^th Circuit and U.S. v. Little in the 3^rd Circuit).  If Kagan is confirmed by the Senate, it is possible that there might be a shift in the court which will broaden obscenity interpretation, allow for more prosecutions, and possibly cause a great deal of harm to basic First Amendment principles.