Over the past two weeks, a serious attack on the First Amendment rights of booksellers and other producers and distributors of constitutionally protected material has begun to emerge in Washington.

Senate Criminalizes Sale of Books like Anarchist Cookbook Some Legislators Pressure Media to Impose Self-Censorship Others Openly Advocate Government Censorship Booksellers Begin Fighting Back Previous ABFFE Updates

On June 8, Representative Henry Hyde, the chairman of the House Judiciary Committee, introduced legislation called the Children's Defense Act of 1999 that makes it a federal crime punishable by up to five years in jail to sell to a minor under the age of 17 any work containing images or "verbal descriptions or narrative accounts of explicit sexual or violent material."

The bill applies not only to video games and movies but to "any picture, photograph, drawing or sculpture....book, pamphlet, magazine [or] printed matter."

We have not seen such a sweeping piece of federal legislation since the introduction of the Pornography Victims Compensation Act of 1990, which originally applied to virtually any work that described or depicted sexual conduct. In effect, it proposes to create a national "harmful to minors" law that would make felons of anyone who mistakenly sells to a minor any work, taken as a whole, that

1. Predominantly appeals to the prurient, shameful or morbid interest of minors;

2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

3. Is utterly without redeeming social importance for minors. 

The definition of "sexual or violent material is broad. It includes not only "acts of masturbation, homosexuality or sexual intercourse" but any depiction or description of nudity. Violence is defined as "sadistic or masochistic activity, including flagellation or torture by or upon a person, acts of mutilation of the human body or rape."

It is not surprising that the furor over violence has produced a bill that attacks sexual material as well. Long time enemies of free speech are attempting to exploit outrage over the Columbine High School shootings to suppress a wide range of works that they believe are responsible for society's problems. Thus, later in the bill, we find the silly statement that "research suggests that heavy exposure to programming with strong sexual content contribues to the early commencement of sexual activity among teenagers."

Senate Criminalizes Sale of Books Like Anarchist Cookbook

The Children's Defense Act is not the only alarming piece of legislation under consideration by Congress. Two weeks ago, the Senate adopted an amendment proposed by Senator Feinstein to S. 254, the Juvenile Justice Act, that makes it a crime "to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device or weapon of mass destruction... with the intent that the teaching, demonstration or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence."

The bill could apply to "The Anarchists Cookbook" or, for that matter, a manual on using explosives for tree stump removal.

While there must be some showing of evil intent on the part of the distributor, this requirement itself is deeply troubling. We have fought long and hard to establish the principle that what we punish in this country are illegal acts, not ideas. This provision appears to create a situation where the government may inquire into a bookseller's political opinions to determine if he or she had "intent" when they sold "Anarchists Cookbook" to someone who then built and detonated a bomb.

Some Legislators Pressure Media to Impose Self-Censorship

So far, these are the only bills that apply to books. However, there is a slew of legislation that attacks First Amendment positions that have long been defended by booksellers. One of the scariest is a bill that was originally introduced by Senator Sam Brownback, a Republican from Kansas, that gives producers and distributors of most entertainment media permission to "voluntarily" limit sexual and violent content without running afoul of the anti-trust laws.

At first blush, this might not seem particularly threatening. In fact, it has already been done once. Former Illinois Senator Paul Simon sponsored a law that granted an anti-trust exemption to the television networks to find ways to reduce violent content. The idea was that the networks would be willing to promote tasteful programming if they knew that there was an agreement in place that would prevent their competitors from using sex and violence to undercut them. As objectionable as this is from a First Amendment point of view, the exemption could at least be justified on the grounds that broadcast television is different from other media because its signal cannot be controlled and therefore carries the potential of unintentionally exposing someone to material they may find objectionable.

What Senator Brownback is proposing is entirely different and, potentially, far more repressive. His bill applies to practically the entire media industry, including Internet providers, movie companies, television broadcasters, cable operators, record companies and video game manufacturers. There is no danger here of  unintentional exposure. These companies produce material that people pay to receive. Brownback wants to suppress it because it is dangerous, and he doesn't care how popular it may be. Since the First Amendment prevents government censoring it, he is pressuring producers and distributors to do the job for him. 

Others Openly Advocate Government Censorship

Previously in ABFFE Update