Child Prostitution and the First Amendment
It’s been said that prostitution is the oldest profession. Long before people were selling iPads and iPods, Automobiles, books, and mass-produced food, and so on and so forth, they were selling sex. Now people weren’t just selling their own bodies, they were subjugating others and selling their bodies as well. While most people would agree that this type of behavior is egregious, and has no place in modern society, the truth is it still goes on today. And as much as one would like to believe it only happens in the shady backrooms of seedy inner-city nightclubs or crack houses, far away from the roving eyes of upstanding suburban citizens, the reality is prostitution and sex trading happens in plain sight. Prostitution and human trafficking are ubiquitous enterprises that have been around for probably as long as man was bipedal, and from the looks of it, nothing is going to change this fact.
What has changed or greatly impacted the prostitution and sex trade industries (assuming here, that they’re distinguishable) is technology. Currently, there are more ways of communicating with different people than ever before, and perhaps more importantly, there are more ways of instantly communicating with different people than ever before. The Internet, as Thomas Freidman would say, has made the world flat. Now anyone who wants anything can typically find it on the Internet. Sex is all over the Internet. And purchasing sex via the Internet is now easier than ever before. This is due to several factors, public demand, the profitability of such exploits, but mainly because the Internet is unregulated. Aside from child pornography, there is little regulation regarding all sorts of suspect activities. The question then becomes is the freedom of the Internet a positive thing? Are unregulated or loosely regulated user-based websites, such as Craigslist, that allowed people to advertise prostitution of under-age girls too unrestricted? How should a “moral” society react to subversive and immoral (and in many cases illegal) Internet content like prostitution? The thesis of this paper is to examine the implications of what it means to live in a free society with an unfettered, largely unregulated, user-based market — i.e. The Internet.
When it comes to the notion of freedom of speech and censorship, Tommy Smothers said famously, “The only valid censorship of ideas is the right o people no to listen.” And this speaks to the heart of the American way of life, for example, if one doesn’t like what’s being said on T.V. he/she has the right to change the channel. In other words, society shouldn’t stifle the disparate voices of the masses, rather society should allow for the free exchange of ideas. This, of course, presupposes that the listeners, the members of society, are able and willing to filter out what it is they deem unsavory or irrelevant or useless etc. By in large, U.S. law coincides with the notion that the onus is on the listener, the First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speechâ€¦” (Amendment 1). In essence the citizens of the U.S. have carte blanche when it comes to speaking their minds. Or do they?
Anyone who has taken a Jr. level high school History course remembers the caveat that is issued with regards to the Freedom of Speech clause, Oliver Wendell Holmes Jr.’s scenario to articulate the limits of Freedom of Speech in the Schenck v. United States Supreme Court Case, the “Falsely yelling ‘fire’ in a crowded theater” example. Holmes explanation was concise and easy to explicate; there are indeed times when the freedom of speech is inappropriate, i.e. when it needlessly puts people in danger.
So in using Holmes’ example as a framework for what is to be considered “over the line” versus what is considered to be distasteful but, nevertheless, permissible, where does the advertising for prostitution of underage girls fall? Presumably “underage” means a girl who is below the age of consent. This is a fact that must not be overlooked because it explicitly implies an illegal act: statutory rape. “In accordance with the FBI definition, statutory rape is characterized as non-forcible sexual intercourse with a person who is younger than the statutory age of consent” (Sexlaws.org). In addition to the illegality of the statutory rape aspect, prostitution is considered illegal in many states. Therefore, advertising (or soliciting) prostitution with underage girls is illegal on two counts. And, circling back to Holmes’ point, it puts these young girls at great risk.
So if it’s illegal on two counts and it’s putting young girls in danger, how is Craigslist able to publish such ads on its website? Craigslist can circumvent liability for publishing such ads because of the way the law is written, in particular, the Communication Decency Act. The Communication Decency Act states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (CDA). This means that Craigslist who is publishing the ads on its site, is not the actual “publisher” (or creator) of the material, rather, under the legal definition, Craigslist is considered the “provider,” and is therefore not liable for any of the subsequent actions that occur as a result of the ad. Craigslist can continue to publish these ads with impunity, knowing that they are protected from any legal recourse.
This is how it was, until September 3, 2010, when Craigslist stopped “providing” sex ads on its pages. William Saletan from Slate.com wrote in an article titled “Pimp Mobile: Craigslist shuts its “adult” section. Where will Sex ads go now?” — “Friday evening, after years of vilification for allegedly fostering sexual abuse, Craigslist shut down its “adult services” sections. The company slapped a “censored” label over the section and went silent. (Saletan). Why the change in heart? Saletan and others in the media explained that growing pressure from children’s activist groups, the attorney generals office (who labeled Craigslist “the Wal-Mart of child sex trafficking”), and media outlets which continued running stories about Craigslist’s complicity in the prostitution and sex trade industry forced Craigslist to relent on it’s position and shut down its sex ad business.
One would think that this is indeed a victory for the public and for those young girls who are being forced to have sex against their will. However, and as Saletan intimates in his article, Craigslist is not the only website that publishes online prostitution ads. There are many websites that willingly provide prostitution ads due to the large amount of revenue they generate, for example, it was estimated that Craigslist was making approximately $36 million per year providing those ads (Salaten). Therefore, it is reasonable to speculate that these ads that would have been showcased via Craigslist will now, instead, be showcased on other websites and Internal portals. And there is a key difference between Craigslist and these other websites. Craigslist was at least semi-scrupulous about the content it provided and even worked with authorities to help track and stymie illegal activity, whereas these other websites, which are less publicly known, are not as discerning about the content they provide and the repercussions that ensue as a result. Saletan writes, “The Washington Post says legal experts worry that the closure of the adult-services division “could simply shift the ads toâ€¦ other sites that would be harder for authorities to monitor” (Salaten).
The point in all of this is that nothing has been done about the demand for such illicit services. Just because Craigslist, an enabler of this activity, has stepped out of the game, doesn’t mean that the demand for child exploitation and prostitution will stop on a dime. In fact, some contend, the demand will not be impacted at all. After all, the Internet is largely an unregulated market. When there is a demand for something that will generate a profit, businesses will step in to provide that service regardless of whether or not it’s immoral, illegal, or otherwise.
Prostitution and sex trading is not only a problem endemic to the U.S., but it is really a problem that almost all countries face (Bienstock). That said, one could argue that due to the “free-market” nature of the U.S., the freedom of speech rights the U.S. grants its citizens and lax regulation and policy like the CDA, illicit sexual activity and human trafficking is more rampant in the U.S. than in other industrialized nations. And there may be something to that argument. In fact, studies have suggested that a very high number of people who are abducted from other foreign countries (Russia, China, and Eastern Europe in particular) are to be trafficked into the U.S. (Bienstock). That said, other studies show that it is difficult to pinpoint an exact number of people and their “purpose” for being trafficked, for example, “The most cited statistics on trafficking come from the U.S. State Department’s annual reports on trafficking in persons. According to the 2005 report, 600,000 to 800,000 people are trafficked across international borders each year, with 14,500 to 17,500 trafficked into the U.S. The report does not provide data on sexual exploitation specifically; the numbers include people trafficked for any sort of forced labor” (Bienstock).
Regardless of the actual numbers, many people in the international community see the U.S. As a purveyor of sex trafficking and prostitution. Again, this is largely because the U.S.’s relative wealth and its rather permissive and “free-market” society. So what can the U.S. do to change its reputation? How can the U.S. reconcile the tension between protecting First Amendment rights and the abuse of First Amendment rights in the case of prostitution and sex ads on the Internet?
This is a very complicated matter. As mentioned, prostitution is a profession as old as mankind. It’s not going away. Yet, to say that any effort to thwart the demand for illicit sex and the exploitation of minors is in vain is also disingenuous. Just as the U.S. government has passed legislation to stymie child pornography via the Internet, the U.S. government needs to consider amending or changing the CDA to hold providers responsible for content that leads to human trafficking or child prostitution. This would make websites who currently advertise prostitution think more critically about the ads they post. Additionally, potential changes in policy should also be undergirded with an increase in public awareness about the problem. The government needs to do a better job tracking statistics and reporting the realities of child prostitution. Finally, something needs to be done to address the demand for illicit sex. Although sanctioning the suppliers and enablers is important, as is increasing public awareness about the issue, something still needs to be done to decrease the demand for illicit sex. And therein lies the problem. One can limit freedom of speech and increase regulations tenfold on the Internet and that will help mitigate the problem, but if there still exits a thriving demand for something, people will find a way. Perhaps, the real solution to this problem isn’t through policy or politics, it’s through changing the way people are wired.
Friedman, Thomas. The World Is Flat: A Brief History of the Twenty-first Century. New York: Farrar, Straus and Giroux, 2005. Print.
US Const., Amendment 1. Web. 10 June 2011.
Sex Laws.org. “What is Statutory Rape?” (n.d.). Web. 10 June 2011.
Bienstock, Ric Esther. “Sex Slaves.” Boston: Frontline (PBS), 2006. Web. 10 June 2011.
Saletan, William. “Pimp Mobile: Craigslist shuts its “adult” section. Where will sex ads go now?” Slate.com. 7 Sept. 2010. Web. 10 June 2011.
Communication Decency Act. Title 47, Chapter 5, Subchapter II, Part I, Â§ 230.
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