A Prophylactic for Free Speech? - Pacific Standard

A Prophylactic for Free Speech?

Re-emergent STDs lead some to call for restrictions on gay hookup websites, which may possess a more formidable weapon: the First Amendment.
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The 50-year war on cigarette companies prepared disease prevention experts for another public health foe: Websites that help spread disease by accelerating casual sex.

But while big tobacco escaped significant regulation for decades with pseudo-science and lobbying efforts, commercial websites such as Adam4Adam, AOL and Craigslist may possess a more formidable weapon: the First Amendment. Big tobacco sold a product subject to regulation; sex sites sell a means of constitutionally protected communication — no surgeon general's warning required.

"I'm not aware of any newspaper that has to put out a public service announcement," observes Lee Tien, staff attorney with the Electronic Frontier Foundation, a group advocating online liberties.

But others are seeking a way to compel something similar.

Jeff Klausner, who heads the San Francisco Department of Public Health's efforts against sexually transmitted disease, is currently waging a campaign to reduce what he says are the unhealthy side effects of Adam4Adam.com, a gay hookup site which research implicates in the upsurge of syphilis. He has met with officials at the Centers for Disease Control and Prevention, the New York City Department of Health and Mental Hygiene, the California Department of Public Health, leaders of health care nonprofits and with lawyers to plot a strategy compelling the site to advocate safe sex on its Web pages.

"Public health officials seeking to change men's high-risk behaviors vis-à-vis the Internet do not have to reinvent the wheel," wrote Klausner and Deborah Levine in the March 2005 Sexuality Research & Social Policy, where they draw the comparison to tobacco regulation.

Legislatures might get around putative First Amendment protections by using federal limits on pornography as a cudgel to motivate these Web site owners. Klausner and Levine suggested in their paper that legislatures might pass laws imposing taxes on Web sites. New laws might also require sexual health messages as part of Web sites' content. There's also the possibility of filing public nuisance lawsuits against these companies, given the fire-in-a-crowded-theater aspect to the sites' exercise of free speech.

But so far legislators and law enforcement officials haven't aggressively targeted sex-hookup sites. The liberal constituency that might be concerned about gay men's health includes many activists just as concerned about gay men's sexual liberty and Internet privacy. The issue often isn't how two consenting adults came to meet, whether cyber-assisted or not, but that they didn't practice safe sex once they did.

So Klausner is left begging, cajoling and propagandizing in an attempt to get sites to carry safe-sex warnings. As of mid-April, however, he hadn't even managed to compel the owner of Adam4Adam.com to answer his e-mails.

"Currently, there is no law regulating the Internet in that regard, so there is little authority given to government entities. That does not mean new laws could not be created, etc., to fairly manage that issue," Klausner said during a series of in-person, telephone and e-mail interviews. Public health has little except moral suasion to advance its goals.
"The value of the individual has trumped public good," he said.

Instant Gratification
Gay hookup sites allow users to connect according to preferred body type, proclivity and neighborhood. Clicking on a photo, sending a proposition and walking a couple blocks takes an enthusiast from logging in to piling onto a bareback threesome within a half hour. By leveraging sites like Adam4Adam.com with Viagra and methamphetamine, enthusiasts can flit between sexual hookups like tireless Typhoid Marys, gathering and broadcasting AIDS, syphilis and other diseases.

Is that scenario so much prudish hand-wringing? Is there any sense blaming the Internet for helping people network?
Stephen Adelson, the former vice president of the for-profit gay-hookup ManHunt.com, doesn't think so.

"One thing the Internet does is it provides rapid communication. You can talk to hundreds of people in a very short period of time. When it comes to facilitating sexual encounters, it's an excellent facilitator," he said. "Someone before that may have before met two or three people in a day can now meet 10 or 20. That's the nature of the Internet."

Klausner, for his part, cites data saying that the sites' links with disease have become more irrefutable with time. And since sites such as Adam4Adam are set up expressly to enable quick, frequent, anonymous sex, their protests can recall the old Second Amendment rejoinder that guns don't kill people, people do.

After nearly disappearing a decade ago, syphilis, and its ability to cause brain and heart damage, bounded back tenfold between 1998 and 2002 with the help of the Internet. A new California study says that's where most syphilis patients meet new sex partners. And in San Francisco, more than two-thirds of patients surveyed by health officials said they met new liaisons online, and half of those introductions happened on Adam4Adam.com.

Klausner and Levine's paper, "Lessons Learned from Tobacco Control: A Proposal for Public Health Policy Initiatives to Reduce the Consequences of High-Risk Sexual Behavior Among Men Who Have Sex With Men and Use The Internet," sought to apply tobacco-war weapons such as excise taxes on particular Web sites and surgeon-general-style warnings in the form of safe-sex banner advertisements to be donated by offenders such as Adam4Adam.com.

This kind of public health effort has a history. During the 1980s, San Francisco attempted to stem the incipient AIDS epidemic by shutting down bathhouses. Los Angeles County and San Francisco have laws requiring commercial sex venues to provide counseling and testing for sexually transmitted diseases.

And it's not as if there haven't been muzzles put on the Internet, whether banishing gambling sites from operating in the United States, cracking down on music and movie filesharing, or even (unsuccessfully) suing Craigslist for housing discrimination.

Seeking Webmasters
In 2005, Klausner attempted to apply the logic of these examples, and the policy suggestions in his Sexuality Research & Social Policy paper, to AOL, whose vast network of sex-hookup chat rooms had become a disease-spreading predecessor of Adam4Adam. Klausner wanted AOL to warn users when disease outbreaks occurred. AOL successfully fended him off, despite a 2004 Wired magazine article making Klausner's case. (It described him as San Francisco's "outspoken STD czar.")

An AOL spokesman said the company declined to provide health warnings to users "due to the privacy concerns for our users."
Klausner put it this way: "AOL ultimately failed to take any action, failed to notify its members and failed to engage in sexual health promotion."

In the three years since, the spotlight on AOL and Craigslist dimmed. Men seeking swift anonymous hookups drifted to racier, more efficient sites such as Adam4Adam and ManHunt.com.

Attempts to cajole Adam4Adam.com have been even more frustrating, as the anonymous Canadian entrepreneur behind the Web site provides no phone number or address, and declined to return Klausner's e-mails. The site purposefully obscures its ownership with a private-registration service called Domains by Proxy.

In response to an e-mail message Miller-McCune.com sent to the Adam4Adam site, someone identifying himself as "Marc" replied that the site had been running a banner ad for the San Francisco Department of Public Health HIV vaccine trial. The site also has a "health resources" page listing Web sites on AIDS and other diseases. "I can't even remember when we started that banner, it's been so long," he wrote.

Klausner responded that the HIV vaccine has nothing to do with the kinds of safe-sex promotion he's advocating. Adelson, for one, opposes the sort of tobacco-industry-style legal crackdown advocated by Klausner. In that spirit, Adelson has hung a shingle as a consultant to facilitate cooperative, rather than adversarial, relationships between public health officials and sex-hookup sites.

"There's no existing legislation that would apply to Adam4Adam.com that can make them do a thing," Adelson said, citing nuisance abatement laws that could theoretically form the basis for a lawsuit. But laws "Klausner has mentioned are local laws and would not apply to a Web site like Adam4Adam.com, which is an international entity."

Adelson says he knows the Adam4Adam owner's identity, but refuses to reveal it. He pooh-poohs research linking syphilis outbreaks with the Internet, and says regulators should be working to seduce, rather than punish, sex site operators. What's more, Klausner should be satisfied with the health information currently on Adam4Adam.com, Adelson said.

"Part of my point is that a ‘policy' approach is a bark; it's saying, ‘We're going to try to control what you're doing.' In this instance, there's no bite to the bark," Adelson said. "There's no way they can control the sites. But there's no need to because (Adam4Adam's owner) has been co-operative by including health intervention information on his site."

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