Bill of Right in Action

Fall 1999 (15:4)

Clash of Cultures and Law

This Bill of Rights in Action examines the clash between cultures and law. The first article explores attempts to rein in the Internet, whose culture has resisted outside controls. The second article looks at the first emperor of China and how he tried to impose a harsh legal code on his empire. The last article explores Spain's attempts to write laws for its empire in the New World.

Young People and the Internet: Issues of Censorship and Free Expression

In 1998, a 12-year-old boy in Livermore, California, boy spent his summer downloading dozens of sexually explicit images from the public library's computers connected to the Internet. The library placed no restrictions on adults or children using its Internet computers. The boy printed his collection of pictures on a relative's computer. When the youngster's mother learned of his summertime activity, she sued the Livermore Public Library for allowing him access to materials harmful to minors.

The lawsuit was later dismissed in court. But the problem of children gaining easy access to sexual, hate, and other potentially harmful materials on the Internet has become a troubling constitutional rights issue. From the Internet's beginning, its users have encouraged free expression and an attitude of "anything goes." But since the mid-1990s, more and more children are going online at home, at school, and at public libraries. Some of these kids are finding things that their parents, teachers, and librarians would never think of giving them in print or other media.

Blocking the Distributors

This law was immediately challenged in court as violating the First Amendment. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech . . . ." Despite the amendment's language, the Supreme Court has never ruled that freedom of speech is an absolute right. The court has recognized it as a precious right, but it has placed boundaries on freedom of speech in several areas. For example, the court has upheld laws banning obscenity. The court, however, has strictly defined obscenity. (See "Obscenity: What the Law Says" below.)

But the CDA, which Congress passed, did not just ban obscenity. It also banned "indecent material." Although not clearly defined in the CDA, this phrase was meant to include more than obscenity.

In 1997, the CDA case (Reno v. American Civil Liberties Union) reached the U.S. Supreme Court. The CDA's supporters argued that the Internet was similar to radio and television and therefore Congress had the power to ban indecent material on it. The Supreme Court disagreed and held that the CDA violated the First Amendment. Unlike radio and television, the court reasoned, there is no tradition of government regulating the Internet, and the Internet user does not automatically receive messages or content. The court ruled that while the government does have an interest in shielding children from harmful materials, the wording of the law suppressed a broad range of constitutionally protected speech for adults. This fact, the nearly unanimous Court majority said, placed an unconstitutional burden on adult speech.

Under the act, harmful material would certainly cover words and images that meet the Supreme Courts' definition of obscenity for adults. But it would also include anything "patently offensive with respect to minors." Congress further defined this as both normal and perverted sexual acts, as well as the "lewd exhibition of the genitals or post-pubescent female breast." These prohibited online words or images would also have to lack "serious literary, artistic, political, or scientific value for minors."

Blocking the Users

Public libraries find themselves caught between those who want to keep children away from inappropriate Internet sites and those guarding against censorship. Libraries have reacted by adopting Internet policies, such as requiring written parent permits, asking children to sign acceptable-use agreements, equipping workstations with privacy screens to block what adults are viewing, and positioning computers so that library personnel can monitor terminals used by children. One of the most promising solutions, however, may be special filtering software to block user access to some Internet sites.

Filters provoke controversy among librarians. The leading national organization of librarians, the American Library Association (ALA), adopted a resolution in 1997. It stated that "the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights." But some librarians, like David Burt of Oswego, Oregon, disagree. They argue for filters on public library computers to shield children from Internet sites containing explicit sex, hate, and other content harmful to minors. Radio talk-show host Dr. Laura Schlessinger, a physiologist, recently attacked the ALA resolution against filtering. She thought it an irresponsible act of advocating unlimited access of minors to obscene and pornographic web sites.

Do Internet filters work? According to a filter-evaluation project conducted by public librarians in 1997, keyword blocking may prevent access to significant amounts of valuable information, such as that concerned with breast cancer and safe sex. Other methods of blocking are also not foolproof, but filters seem to work most of the time.

At least a dozen states have either passed or are considering laws requiring some kind of Internet filtering on public library and school computers. In Congress in January 1999, Senator John McCain (R-Ariz.) introduced the Children's Internet Protection Act. If it becomes law, this act would mandate filters on all public-school online computers and on one or more public library terminals hooked up to the Internet. The McCain bill would require the filtering software to block material "harmful to minors" as defined by local school and library officials.

Those opposed to filtering argue that filters allow software companies rather than library professionals to decide what information is appropriate for young people. Also, filters encourage a false sense of security since sometimes they block valuable sites or even permit access to places where children should not be. Finally, is it the job of libraries to censor what children access at the Internet computer? Should not this really be the responsibility of parents or the young people themselves who must learn to live in an online culture?

1. What do you think is the best approach to take in dealing with obscenity and pornography on the Internet? Why?

a. block the distributors of it
b. block both adult and child user access
c. block only child user access
d. let the traditional "anything goes on the Internet" rule

2. What kinds of information and images on the Internet do you think would be "harmful to minors"? Why?

3. Do you think the Child Online Protection Act violates the First Amendment? Why or why not?

For Further Reading

Balas, Janet. "Debating Public Access to the Internet." Computers in Libraries. March 1998:42-44.

Gorman, Anna. "Libraries Caught in a Tangled Web." Los Angeles Times. 18 Jan. 1999.

Imagine that your city council is deciding whether to require filters at your public libraries. The various proposals are to require filters:

a. on all public library computers all the time

b. on all public library computers with an "on/off switch" activated by the user

c. only on public library computers that children must use

d. on no public library computers at any time

Divide the class into small groups. Each group will role play the city council. Each council should fully discuss the various proposals and their pros and cons. Then each council should vote on which proposal to adopt. Finally, each council should report back. Then the class should take a vote on the filtering choices to see which one the majority would like to see implemented in the local public library.

The Law of Shi Huangdi, First Emperor of China

In 1974, near the city of Xian, Chinese archeologists unearthed almost 8,000 full-sized clay statues of warriors, horses, and chariots. Each clay warrior bore unique facial features along with a distinct hairstyle and armor showing his military rank. The archaeologists found the clay army buried on the approach to the still-unopened tomb of China's first emperor, Shi Huangdi, who died more than 2,000 years ago. Before his death, the emperor had ordered 700,000 workers to labor on his tomb. His ability to command many people to work on such projects flowed from his success as a military mastermind. But he also established a severe legal code that conflicted with traditional Chinese ideals.

The Unification of China

For more than 250 years before the first emperor, war raged throughout China. Starting in 481 B.C., the seven major kingdoms making up what is now most of China constantly fought one another. This is known in Chinese history as the Period of Warring States. Gradually, the Kingdom of Qin, in the north, took advantage of its superior cavalry to form a fearsome war machine. Led by a series of gifted leaders, Qin won 15 major wars from 374-234 B.C.

Zizhu died after only three years on the throne. Cheng succeeded him. But since Cheng was only 13-years-old, his mother and Lu Buwei governed in his name until he reached adulthood.

When Cheng turned 21 in 238 B.C., he assumed full powers as king. But his mother and her lover conspired (possibly with Lu Buwei) to overthrow his rule. King Cheng acted quickly to crush the conspiracy. He temporarily banished his mother from the Qin capital, decapitated her lover, and removed Lu Buwei from his high office.

King Cheng decided to undertake something never before accomplished by any ruler in the land: the conquest of all the other kingdoms and unification of them under one rule. He followed Li Si's plan to use spies and bribery to prevent a grand alliance of the other six kingdoms against him. At the same time, he created an unstoppable army that included up to 600,000 fighting men, most of them conscripted (drafted) peasants.

Beginning in 230 B.C., Cheng embarked on his campaign of conquest. In less than a decade, he had conquered and annexed all six enemy kingdoms. In 221 B.C., he proclaimed himself "Qin Shi Huangdi," which means the first great emperor of China.

An ancient chronicle of Chinese history records that after the last of the six kingdoms fell, "Qin now possessed All under Heaven." For the first time, China was unified under one ruler. Shi Huangdi himself declared that his dynasty would endure "for generations without end."

Unlike most leaders before him in China, Shi Huangdi favored the new and innovative while rejecting many past traditions. Li Si, appointed as the first emperor's grand counselor, shared this view.

During the next few years, the first emperor and Li Si brought about many changes in China. They standardized writing, coins, and weights and measures. They created a network of tree-lined highways covering more miles than the Roman road system would a few hundred years later. They built palaces, canals, irrigation systems, and Shi Huangdi's own tomb complex. The first emperor also ordered the extension and new construction of earthen defensive walls in the north to keep out barbarian invaders. This Great Wall of China ran 2,600 miles across northern China to the sea. (Almost 1,500 years later, it was reconstructed with stone during the Ming dynasty.)

To support his massive projects, the first emperor created a tax system that burdened everyone, especially the common people. The emperor's land tax took up to 50 percent of a family's yearly grain production. Even more oppressive, however, was conscription. In addition to military conscription, all males from 15 to 60 years of age had to work for fixed periods on local public works, such as building roads and repairing dikes. Those convicted of crimes or who could not pay their taxes were often transported faraway to labor on the emperor's projects like the Great Wall. With many peasants away from the fields working on the emperor's projects, their crops frequently failed. According to one scholar at that time, the poor often "ate the food of dogs and swine."

Shi Huangdi, however, preferred another school of thought called Legalism. The Legalists believed that people were basically motivated by self-interest and therefore had to be controlled by a strong ruler and stern punishments. Han Fei-tzu, a Legalist and the tutor of Shi Huangdi, wrote, "The ruler alone should possess the power, wielding it like lightning or like thunder."

The Qin Law Code set specified harsh punishments for particular crimes. Penalties for less serious violations included fines, beatings with a stick, hard labor on public works, and banishment to frontier regions. For more serious offenses, lawbreakers faced bodily mutilation by tattooing the face, flogging, cutting off the nose, amputating one or both feet, and castration. The death penalty was reserved for the worst criminals, especially those who threatened the emperor or the state. Execution was normally by beheading. But in some cases, the criminal could be cut in two at the waist, boiled in a cauldron, or torn apart by horse-drawn chariots.

The Fall of the Qin Dynasty

These scholars learn only from the old, not from the new, and employ their learning to oppose our rule and confuse the . . . people. . . . This lowers the prestige of the [emperor] and leads to the formation of factions below. It must be stopped. . . . Let all historical records but those of Qin be destroyed.

During the next few years, Shi Huangdi grew increasingly isolated. He became obsessed with finding an elixir for immortality. He sent magicians to distant lands to find the elusive potion and toured the empire himself in search of it. On his last tour, he seemed to descend into madness on his quest for everlasting life. He apparently took concoctions containing mercury and other poisonous substances, which ironically probably shortened his life. In 210 B.C. at age 49, he died while still touring the empire.

For Discussion and Writing

1. What major differences do you see between the Confucian and Legalist ways of governing?

2. What elements of Shi Huangdi's law differ from American justice?

3. Why do you think the Qin Dynasty collapsed so quickly after the death of the first emperor?

For Further Reading

Guisso, R.W.L.; Pagani, Catherine; and Miller, David. The First Emperor of China. New York: Birch Lane Press, 1989.

Twitchett, Denis and Loewe, Michael, eds. The Cambridge History of China, Volume I, The Ch'in and Han Empires, 221 B.C.-A. D. 220. Cambridge: Cambridge University Press, 1986.

A C T I V I T Y: Book Burning and Censorship

Form small groups to discuss the following questions. Each group should then report its discussion results to the rest of the class.

1. In 213 B.C., Shi Huangdi ordered the burning of books that he believed were dangerous. Imagine that you were a "time traveler" who could go back to ancient China and advise the first emperor. What arguments would you give him that book burning is a bad idea?

2. Time-traveling back to the United States today, do you think the government should have the power to censor materials it considers dangerous such as books, magazines, movies, music recordings, artwork, or software? Cite specific kinds of material that people may think merit censorship and explain your position on each.

Laws of the Indies: Spain and the Native Peoples of the New World

God and Greed

The question of the "just title" to the Indies was seemingly settled in 1493. Pope Alexander VI issued a declaration passing legal possession of the newly discovered lands to Spain. The pope, however, made this "donation" to Spain for the purpose of converting the native peoples to a belief in God and the Catholic faith. Whether Spain could also legally take Indian lands and possessions by force became a disputed matter among Spanish scholars for many years. Of course, the Indians had no say in any of this.

In America, events took their own course. The Spanish conquistadors, who went to Hispaniola and then to other Caribbean islands and finally to the mainland, were rough and violent. They took what they wanted, and when the Indians resisted--or even when they did not--the conquistadors attacked and slaughtered them. By 1499, Columbus was rewarding his men for helping conquer the Indies by forcing Indians to work for them. This prompted Queen Isabella to ask, "By what authority does the Admiral give my vassals [subjects] away?"

The Laws of Burgos

The year after his revolutionary sermon, Montesinos traveled to Spain to take his grievances directly to King Ferdinand. (Isabella had died in 1504). The king listened sympathetically and ordered Spanish scholars to prepare a code of laws regulating the treatment of Indians. Drawn up in 1512 and l513 in the city of Burgos, Spain, the Laws of Burgos became the first code of laws written by Europeans for the New World.

The Laws of Burgos were remarkably enlightened for the time. Although this law code continued to recognize the encomienda system, its 39 articles laid down specific rules to prevent abuse of Indian workers. For example, it forbid using Indians as carriers of goods in place of pack animals. It granted 40 days of rest to encomienda Indians who had mined gold for five months. It prohibited Indian children under 14 and pregnant women from doing heavy work in the mines or fields. It banned Spanish masters from beating, whipping, or calling any Indian "dog." Moreover, the code required that the Catholic faith "shall be planted and deeply rooted so that the souls of the said Indians may be saved."

Defender of the Indians

Bartolome de Las Casas was the most persistent defender of the Indians during the early years of the Spanish conquest of America. Starting out as a conquistador with his own encomienda, Las Casas later became a Dominican friar who passionately spoke out against the brutal treatment of the Indians.

Las Casas went on and on cataloging the tortures employed by the conquistadors--throwing Indians into pits with sharpened stakes, spearing them from horseback as they tried to escape, grilling children over a fire. The Dominican friar finally charged that after the survivors had been enslaved or forced into encomiendas, their Spanish masters started "killing them slowly with hard labor."

The new encomienda law produced tremendous opposition in America. Encomienda holders argued that not only they but the entire Spanish colonizing effort would fail without forced Indian labor. The viceroy of New Spain (Mexico) suspended enforcement of the new encomienda law because so many refused to accept it. In Peru, a violent revolt resulted in the beheading of the viceroy there.

The Great Debate

The great debate took place at Valladolid, Spain, before a special group of scholars and royal officials. They were to decide whether the conquest of the native peoples in the New World was morally justified. A brilliant religious scholar, Juan Gines de Sepulveda, argued that the Indians were barbaric and "slaves by nature." If "those little men in whom one can scarcely find any remnants of humanity" resisted Spanish rule, Sepulveda reasoned, war was justified.

Las Casas contended that the Indians were free, rational human beings whom he compared favorably to the Egyptians, Greeks, Romans, and even the Spanish themselves. "All the peoples of the world are men," he said, and thus possess basic natural rights. Therefore, it was wrong for the Spanish to force their rule and religion onto the Indians. Las Casas concluded that the conquest must stop, Spain must end its rule over native peoples, and religious conversion must take place peacefully and voluntarily.

For Discussion and Writing

2. What was the encomienda system? How did the conquistadors justify it? How did Las Casas and other critics condemn it?

3. How would you have decided the great debate on the conquest of the Indians? Give reasons for your decision.

For Further Reading

Las Casas, Bartolome de. A Short Account of the Destruction of the Indies. New York: Penguin Books, 1992 [originally published in 1552].

A C T I V I T Y: Laws for the Indies

The Council of the Indies considered at one time all the proposed laws for the Indies listed below. Divide the class into the following role groups for a simulated Council of the Indies lawmaking session:

1. Conquistadors: Soldiers and encomienda masters who conquered the New World for Spain 2. Viceroys: The king's representatives in the New World. Each heads the government of a Spanish colony.

3. Missionaries: Members of religious orders who want to convert the Indians to Christianity

4. Indian Defenders: People like Las Casas who protest the mistreatment of Indians and defend their human rights

5. Council of the Indies: The lawmaking body for the Indies

The first four role groups should prepare a position with arguments on each of the proposed laws while the last group (the council) develops questions to ask. Each group will then present its position on the first proposed law before the Council of the Indies. The council may ask questions of each group after it has finished. The council will then discuss and decide whether to approve, disapprove, or modify the proposed law. The same procedure should be followed in considering the other proposed laws.

Proposed Laws

1. Indians shall not be permitted to go without clothing, worship idols, or make human sacrifices. 2. Sons of Indian leaders will be instructed in reading, writing, and the Catholic faith at the expense of their encomienda masters.

3. The encomienda system will be phased out. When a current encomienda master dies, his Indians shall become vassals of the crown.

4. Books by Juan Gines de Sepulveda shall not be printed or distributed in the Indies.

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