Mar
19
Why isn’t .xxx a good idea?
Posted by Dirk Avery at 11:21 am under Internet, Legislation, Litigation.
A new top-level domain dedicated to… um… pornography is a great idea. A new domain would allow segregation of content in a manner much like content is segregated in the “real” world. This would provide neat and easy control for those who wanted it. Schools and employers could simply not provide access to .xxx if they did not want pupils and employees visiting such sites. Families could purchase special .xxx-free access.
But, adding a new top-level domain wouldn’t, by itself, do much. To have any content untangling effect, the US would need a law prescribing adult content outside the .xxx realm. Content providers would need some impetus to act. (The global aspect of the Internet does not necessarily make the law ineffectual. Birds of a feather flock together: if US adult-content providers were required to move, many foreign providers would voluntarily move as well. Those who didn’t could be handled at the ISP level.)
Such a law, of course, would likely be challenged on First Amendment grounds. Under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1985), the law would be a “content-neutral” time, place and manner regulation since the law would not ban any content but would simply provide an alternative avenue of communication. As a “content-neutral” regulation, strict (fatal) scrutiny would not apply and the law would merely have to serve a substantial (rather than compelling) government interest. That interest could be providing parents and schools an easy means of controlling access to content. (The effectiveness of current software filters would likely be an issue.)
The Bush administration, which just won a related case, is opposed to the .xxx domain. Why? Well-meaning but misguided pro-family and religious groups oppose the domain and undoubtedly have put pressure on Bush and the Department of Commerce. These people are misguided because they are apparently unaware that porn is alive and well on the Internet now. If the people of Renton, Washington had hid their heads in the sand, refusing to acknowledge the existence of adult content, they would now have two adult theaters downtown, mixed in with their other businesses. Instead they established a zoning ordinance that no adult entertainment facilities could be located within 1000 feet of a residential area, keeping adult and non-adult businesses separate. Similarly, a .xxx domain is an opportunity to establish separate areas for adult and non-adult content.
The legal aspects of why Renton came out the way it did and why Rehnquist held the statute to be “content neutral” can be debated. However, from a legal realist perspective, the answer is pretty clear. The majority wants communities to be able to keep seedy establishments out of their downtown if they choose. Can you imagine every small town in America being required to have an adult theater in the middle of downtown if anyone wanted to build one?
If a new top-level domain were established and a law passed to force all adult content there, who would lose? Adult-content producers might lose because content segregation would lead to more effective content restriction by schools, families and employers. The negative effects, though, are likely to be minimal. Most of the money made online by content providers probably does not come from children at home, students at school or employees at work. In fact, the network effects of a “red light” district may improve business.
Other who might lose out in such a scenario are “closet” adult-content fans. These individuals may not want to sign up for special .xxx Internet access. However, this wouldn’t be much of a problem since by default Internet access would still be provided including access to all top-level domains. Consumer hardware, such as a special router, or software, would probably constitute the main limiter of .xxx access. Some companies could provide “family friendly” Internet access and simply not include .xxx access.
A .xxx domain and related legislation is unlikely to have much effect on adult-content providers or consumers while making the Internet a neater place where communities can more easily keep adult entertainment establishments out of downtown. Everyone wins.