Masthead CMC Magazine / January 1, 1996

* Sexually Explicit Materials and the Internet, by Douglas Birsch

What is Liberty?

Liberty relates to the power or ability to choose how one will think or act, but it has traditionally been distinguished from "license" or the complete freedom to do as one pleases. The freedom to act has traditionally been limited in two ways related to harm and offensiveness. Limitations on liberty are legitimate if the exercise of liberty threatens to harm another person. We have laws against rape, murder, assault, robbery, and so on because, even though they limit the actions one may legitimately take, they prevent others from being harmed. The philosophical position that lies behind these laws asserts that preventing harm is more important than allowing people the complete freedom to do as they wish. In the language of rights, the claim would be that the duties related to the rights to life and well-being outweigh the right to liberty. Thus, if obscene materials harmed people, society would be justified in restricting them. It has not been demonstrated, however, that obscene materials are harmful and therefore, this approach cannot justify regulating obscene material. 11

The second way of limiting freedom is related to offensiveness. One way of articulating this view is that actions that are of low value may be restricted if they offend others. While this is a limitation on the freedom of some, the low value of their actions is outweighed by the offense to others. While offensive material may not directly harm others, it may produce social unrest and even conflict, and hence lead to indirect harm. This social unrest, conflict, and indirect harm threatens basic well-being. In terms of rights, the considerations connected to the right to basic well-being would outweigh the low value actions which might have been protected by the right to liberty, and regulation would be justified.

Next to consider is --obscenity and the Internet.

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