The First Amendment of the United States Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This has caused a lot of tension for the content filtering that Tumblr has stated that it will start enforcing. So what allows that and is it constitutional or fair?
Going further to explain what Freedom of Speech is covered; let’s look at a further definition. Simply put, this Amendment gives us the right to express ourselves without fear of government regulation or interference, but it can regulate speech that may breach the peace and often times obscenity is placed into this category. Obscenity has been a hot button for many years over what it does or does not cover and it is not covered under the First Amendment. The Government defines obscenity as lewd, filthy, and disgusting words or pictures. However, indecent materials including depictions and words are covered under the First Amendment, but they are allowed in a more restricted sense.
Defining what is or isn’t obscenity or indecent isn’t as black and white and there are two court cases that are big for determining the difference. The first being United States v. One Book Entitled Ulysses, which states that if a work is to be deemed obscene it must be decided on its entirety and not just its parts. This gives a wide berth for anything written, as it must be judged in its whole context. One chapter describing particularly graphic scenes cannot make the whole work obscene. The second case is Miller v. California, which gives a bit more definition. The webpage Legal Information Institute states “The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.” The Miller v. California case allows states to have more control in determining what obscene is and how it applies to a larger level.
Both of these cases were ruled on prior to 1997 and it was at this time more rulings started to surface to try to prevent specific types of content. Reno v. ACLU tried to implement laws to protect children in the new digital media being shared online, which tried to change the Telecommunications Act of 1996. The Supreme Court felt it was overly broad in its handing. In 1998 COPPA (Children’s Online Privacy Protection Act) was put into place and allowed laws to be put into place to protect minors from viewing of obscene images online. Later COPPA was found to also be overly broad in its ban of online adult transmissions of material and that it violated the Miller v. California test. As of 2009, no new legislature has been set forth to define obscenity any different.
Unfortunately, that leaves it to State level to make the necessary decisions over what is or isn’t not considered obscene. These rulings are what has caused age restrictions to be put into place view the purchasing and viewing of adult content. And many times will allow a heavy-handed approach it what is considered able to fall under being prohibited. These same rulings are what allows websites, like Tumblr, to create Terms of Service agreements about how those images are handled. It is also the same rulings that allow the censoring of artists, photographers, and writers, people like Robert Mapplethorpe, David Wojnarowicz, or Gio Black Peter. As the old saying goes, “one man’s trash is another man’s treasure.”
These same rulings are also used to limit topics of education in schools. Utah, Alabama, Louisiana, Oklahoma, Mississippi, South Carolina, Arizona and Texas are the states that allow their schools to censor or prohibit LGBTQ topics from being taught in what is called the “no promo homo” laws. This includes denying support groups such as the Gay and Straight alliance that helps students who are LGBTQ or supporters a means to feel safe, all the way down to Oklahoma that mandates that when the schools are teaching AIDS education that it includes that participating in homosexual events is the leading cause to contracting the AIDS virus. Arizona does not allow any curriculum that “promotes a homosexual lifestyle,” which the state is allowed to decide upon. When state levels of government are allowed to teach that homosexuality is considered obscene at a young age, it makes it much easier to deem images in art equally as obscene.
The argument of Freedom of Speech ties a lot to age limit. In 1970, the Constitution was amended to change the voting age from 21 to 18. This gives the right of every American citizen to make decisions and vote on laws and those who enforce them once they reach the age of 18. This is also the age that is considered to be able to purchase adult content, whether online, in adult stores, or etc. So your right to expression is also allowed at that age and the Government should not be allowed to infringe on that right. As long as the participants of adult related content are consenting adults at least 18 years of age, do not hurt or put anyone in harm, then it should not be held to such strict standards. I left out violating any State or Federal laws, as this opens it back up to the States being able to deem something obscene.
Tumblr has used many reasons to explain their new stance on adult related content and how they will handle it. Any have focused on how there was an increase of child pornography on their sites that lead to their new heavier algorithms for banning the content. These algorithms are not perfect and many times are subject to controversy due to images the have flagged as to explicit. Many artistic images were tagged and removed. Many sites just vanished for the same reason. Transgender blogs that helped others by showing procedural images were caught up in these same heavy-handed approaches. It became a place where information could be shares in real time and show effects of treatments on people’s bodies so others had a reference point. Those sites that are important to many of the transgender community will more than likely disappear, as Tumblr’s ban goes into effect.
It was also a venue for many LGBTQ artists to showcase their art, whether it be photography, painting, digital media, or however they expressed their talent. When their algorithms are searching for real life human genitalia, females showing nipples, or any content depicting sex acts, all the while encouraging users to actively flag and report anything they deem inappropriate, it is easy to see how this media is disappearing. They recently issued a response to the ban that said they would allow female nudity in aspects of breastfeeding, birth and health related situation, or mastectomy or gender confirmation pictures. They also clarified to say that nudity found in art would be permitted, but the extent of what is allowed is still left up to their decision and user interaction.
Your freedoms are always held in check by those who feel infringed upon or when States make changes to existing laws based on pressure. Sure sites like Tumblr and Facebook are allowed to make their own Terms of Service and we all agree to them blindly without reading fully what may be covered. Standards should be kept in place, but sweeping censoring based on broadly penned wording needs to change. Changing your standards based on pressure from outside sources should be resisted if no hard is being committed. Sadly, we won’t see that and many more sites may be going the way of Tumblr. Our voices may be the only thing that will shape futures of our online content.
**The views expressed in this post are my own and may not be held by any referenced party listed in this blog. **