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Racy downloads become more daring – and portable
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

Planning on a cell phone, music player, hand-held computer, game player or other portable electronic device for a stocking stuffer this Christmas?

Whether used as toys or tools, these handy instruments offer a vast array of digital delights and convenience. And for those so inclined and sufficiently savvy, most also are capable of providing adult content: pornography to go.

The adult-entertainment industry has already identified this nifty niche for naughtiness and believes big profits can be made from porn in the pocket. It’s well on its way to providing sexy content for the myriad handheld devices that young and old just can’t seem to do without.

Adult firms are offering or planning to offer full-length and short adult films for video iPods and other portable devices, sexy video clips for cell phones, trailers of adult films for portable game players and — for video-challenged devices — heavy-breathing “podcasts” are available.

This new direction shouldn’t come as a surprise. Every advance in human communication, from the earliest cave drawings to the latest electronic devices, is quickly converted to yet another way to talk about sex.

And as much as we deny it or decry it, there always seems to be a large and avid audience for such fare.

One online network startup targeting the new video-playing iPod logged half a million downloads of sexy video clips in the first 24 hours after launch. Another site providing videos of nude models recorded a million downloads in a week. A Boston research firm predicts that the porn-in-the-pocket market will reach $200 million a year by 2009.

Unlike their European counterparts, however, U.S. wireless phone carriers that support video devices are not racing to carry racier fare unless and until they can find a way to make sure it reaches only adult customers. The Cellular Telecommunications & Internet Association, a trade group for wireless carriers, is contemplating a rating system — perhaps similar to those in place for movies, television, and video games — to counter demands for regulation.

Such demands are inevitable. When it comes to new technology, as surely as the porn industry is an early exploiter the youngsters are early adapters. That is a dangerous combination in the minds of many parents.

So there will be the anguished lamentations about the end of decency and the ruin of children and angry demands for the government to step in. That is easier demanded than done. The First Amendment rights of content providers as well as adult consumers stand in the way of broad regulations and vague definitions when it comes to restrictions on any form of expression.

In the end, there will be repeated calls from decency advocates for “voluntary” self-regulation by those exploiting this new market with adult content, usually in the form of a ratings system that anti-indecency groups would hope to make part of actual regulation.

One has to look no further than efforts to curb coarseness in the ancient technology of broadcast television and radio to see the limitations — and folly — of that approach.

Right now, the Federal Communications Commission is struggling to reduce a massive back-up in license renewals for hundreds of television stations across the nation, a back-up created in large part by unresolved complaints of indecency incidents in their broadcasts.

Interestingly, the number of such complaints — many filed in e-mail campaigns by anti-indecency groups — has dropped dramatically. The FCC reported in September that indecency and obscenity complaints had gone from 157,016 in the first quarter to 6,161 in the second.

For several decades, there has been an uneasy truce in this uneasy area, despite frequent pressure from concerned citizens and occasional posturing by politicians. The FCC has not pressed the indecency issue too vigorously; the broadcasters have not mounted a forceful First Amendment challenge to indecency regulations in court.

That could change, however. Ironically, the FCC’s proposed rules on children’s exposure to commercial messages (among other requirements) rather than indecent content finally may bring about that legal showdown.

Viacom Inc. went to federal court in October seeking to overturn new FCC rules extending children’s programming requirements in the Children’s Television Act of 1990 to the additional channels made possible by the change from analog to digital signal transmission.

Viacom says it is only seeking review of the new rules, but industry observers predict that the court action could lay the legal foundation for a broader challenge to the 1990 law.

Meanwhile, FCC Chairman Kevin J. Martin warns cable and satellite providers that they could face the same regulatory wrath as their broadcast competitors unless they offer family-friendly options such as “a la carte” subscription to individual channels. In testimony before the Senate Commerce Committee Nov. 29, Martin brushed aside assertions from industry executives that such attempts to create more tools for combating coarseness would result in higher costs and fewer choices for consumers.

That’s where these efforts to restrict adult expression in order to protect children usually wind up. The difficulties always arise in the efforts to define decency, legislate taste and police speech.

That’s why education is always better than regulation and parents are always better than politicians when it comes to monitoring speech — portable and otherwise.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:


Video-game ratings: a tool or a weapon?

By Paul K. McMasters Never does the ponderous machinery of government and commerce rev up so quickly as when the republic is threatened by, uh, sex. 07.31.05

Constructing a red-light district on the Internet
By Paul K. McMasters Wouldn't a '.xxx' domain protect people from porn while protecting it from censorship? Yet folks on both sides of the pornography debate oppose the idea. 08.28.05

Free speech suffers a case of the cyber shakes
By Paul K. McMasters Whether or not the Internet ranks with drugs, alcohol and gambling as addictive threats, as some say, there's another addiction: the craving to regulate the heck out of it. 06.30.06

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