Why I Will Not Rate My Site

by Jonathan Wallace jblumen@spectacle.org

It is becoming increasingly clear to most people providing information on the World Wide Web that rating systems, a fairly benign form of self-policing, will help us avoid government censorship. While commercial sites take refuge behind credit card front ends to screen out minors, amateur sites may be able to avoid indictment under the Communications Decency Act (CDA) by adopting an adult rating. Parents would then configure browsers to exclude these sites, or would give their children Internet access through providers who blocked adult-rated sites.

Although nothing in the CDA expressly endorses self-rating, the judges in the ACLU v. Reno case in Philadelphia (in which I am a plaintiff) have taken an eager interest in it, asking witnesses questions like "How would you rate your site using the motion picture ratings?" and "Could browsers be configured to recognize a rating system?"

On the whole, self-rating systems are a very good idea, because they allow information providers to post material for an adult audience while avoiding the accusation that they are pandering to children. However, as the Philadelphia judges discovered when they asked witness Kiyoshi Kuromya of the Critical Path Aids organization how he would rate his site, there are Web pages which cannot and should not be rated under such a system.

In June 1995, I posted An Auschwitz Alphabet to the Web, http://www.spectacle.org/695/ausch.html. It is a compilation of excerpts from materials on Auschwitz, including the reminiscences of survivors. It is technically indecent under the Communications Decency Act (which bars descriptions of sexual acts or organs) because of several excerpts from the book The Nazi Doctors, by Robert Jay Lifton, describing castration and the removal of ovaries of camp inmates. Here is one example:

"As for the men, after the X rays sperm was collected ('their prostates [were] brutally massaged with pieces of wood inserted into the rectum') and sooner or later one or both testicles were surgically removed, with resulting hemorrhages, septicemia, and death."

In the nine months since I put An Auschwitz Alphabet on the Web, it has been visited by many thousands of people, and more than one hundred have written to me thanking me for compiling it and making it available. Some of my correspondents have revealed themselves to be minors:

"I am a tenth grade student in Australia and I would just like to congratulate you on this homepage. This information has been most helpful for an assignment I am doing. So thanks."

"I think this is great. I am a 14 year old boy that lives in Indiana. (USA) I really think what you are doing is important. If kids my age aren't told of this tragedy, than it will be forgotten about and the likelier the possibility of it happening again in some shape or form. Thank you."

These letters make my problem obvious. I believe that An Auschwitz Alphabet, and other materials on my site with some explicit language, have literary and political value. Now, material with so called SLAP value (scientific, literary, artistic, political) can be found indecent under the Communications Decency Act, resulting in a prison sentence or a steep fine.

If a self-rating system is adopted as a safe harbor, meaning that by assigning your Web site an appropriate rating you could escape liability under the CDA, I would still not want to assign my site an adult rating. Assigning an R rating to the file on human experimentation cited above, for example, would place it in exactly the same R-rated category as sexual material with no SLAP value whatever, and would prevent minors with a perfectly legitimate interest from seeing it, like the two above. Under a rating system which paralleled what we do for movies, I would either have to assign An Auschwitz Alphabet a G rating or refuse to rate it entirely. Since most browsers configured to accept ratings would probably exclude unrated material, refusing to rate your site would be the equivalent of giving it an X-rating. If so, I would have to rate An Auschwitz Alphabet G and hope for the best. I resent a system that forces me to rate material that should not have to be.

Since I am pretty strongly in favor of parental control over what a child may read or see, let me explain the apparent contradiction. The law recognizes many areas in which a teenage child, though still a minor, has increased independence and privacy interests. Proponents of safe sex information, for example, argue that their information, if available to sexually active teenagers, will save lives. In such a case, parental control implies a right to keep a teenager ignorant and at risk. In other words, there are moral interests which (I know this is a risky statement) trump parental control. Ratings systems which lump An Auschwitz Alphabet together with the Hot Nude Women page ignore this distinction.