ACLU v. Mukasey

I am not sure if discussion of an argument not suggested in the trial would be relevant to our class.  If it is relevant, one point that the ACLU left unchallenged is that the Government put in place an act to “protect” minors from certain type of materials without showing that type of targeted material was harmful. 

Psychologists hold that sexuality is a natural part of humanity for people of all ages, including children, and sexual health is part of overall physical and mental health (see, for example, Facing Facts: Sexual Health for America’s Adolescents by the National Commission on Adolescent Sexual Health, or the Handbook of Adolescent Development by Jackson).  If children are not asexual then what are we protecting them from?  Certain kinds of sex, which is to say personal taste? 
 
Kids have access to observe sex and sexuality of other species, for example among their pets, or neighborhood stray animals, or on PBS or nature channel shows and I am aware of no proof or indication that children observing these activities are negatively psychologically affected.  (Nor, to take it a step further, do young non-human animals when observing adults in their species having sex seem negatively affected).  Children of some European countries have more access to sexual imagery than in the U.S. – they also seem fine.
 
Take the classic example of Sweden.  Greater freedom of speech particularly regarding sexuality in Sweden makes sexually-explicit contact more easily available (including to minors), and further compulsory sex education in schools begins at age 6, according to US News & World Report, March 27, 2007.  US News goes on to note that STD’s and teen pregnancy in Sweden are among the world’s lowest (and, for those concerned with promiscuity, rates of girls under age 15 having sex is lower in Sweden than in the U.S.).  A possible interpretation of these facts is that when we deal with sex in a straightforward manner in general, part of that experience is an opportunity to educate children.  With open dialogue, the resulting fewer cases of teen pregnancy and sexual diseases would indicate less harm (than a closed attitude). 

I am not convinced banning sexual websites from minors view is a protective gesture, and, on the contrary, it may instead be harmful to minors.  Whether or not you agree that banning websites would be harmful, we can all agree that, unless evidence of such harm was given in the preceeding trials related to this case and not recounted in this particular appeal document, that the Government has not proven this assumption.