First Amendment of the Constitution of the United States of America: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. What threats of censorship exist for the Internet? The principal threat of Internet censorship today is the Communications Decency Act ( CDA ) , a law passed by Congress and signed by the President in January, 1996 which would apply quite radical regulations to speech on the Internet. The CDA criminalizes “indecent” speech on the Internet. One section of the CDA defines indecency as speech depicting or describing sexual or excretory acts or organs in a patently offensive fashion under contemporary community standards. Each of these clauses–indecent, depicting or describing, patently offensive, and contemporary community standards–hides a landmine threatening the future of freedom of speech in this country. “Indecency” is a vague standard long used to prosecute explicit, outspoken speech in the Western world (for example, Radcliffe Hall’s path breaking but actually very restrained lesbian novel, The Well of Loneliness, was indecent because of the phrase, “And that night, they were not divided.”) Indecency laws are completely unconstitutional as applied to print media, while broadcast spectrum scarcity has been used as a rationale to continue applying such laws to broadcast media. Indecency laws in general, the CDA in particular, contain absolutely no exception for speech with scientific, literary, artistic or political value. “Depicting or describing” The word “describes” confirms that pure text can be illegal under the CDA. Courts in recent decades have tacitly acknowledged that sexually explicit text cannot be held illegal under obscenity laws. Books such as Henry Miller’s Tropic of Cancer and James Joyce’s Ulysses, which were held years ago to be significant literary works and not obscene, could fall prey to the broader, vaguer CDA language if posted online. “Sexual or excretory acts or functions” While the reaction of some observers to this, the core of the CDA’ s prohibition, may be “So what?”, pause for a second to imagine that you enter your neighbourhood bookstore and wave a magic wand. Immediately, all books infringing this definition vanish from the shelves. The shelves are now half or two thirds empty! Not only trashy bestsellers, but 19th century classics such as Zola’s La Terre and Flaubert’s Madame Bovary, modern literature such as Joyce, Miller, Nabokov and Burroughs, nonfiction works on health, aids, rape, and sexual fulfilment, and even the Bible all vanish from the shelves! All serious human discourse sooner or later touches on earthy topics, as history, metaphor or information. Under the CDA, speech which is quite legal in a book or magazine should be banned from the Internet. “Patently offensive” This wording, which the CDA picked up from the Supreme Court’s so-called Miller standard of obscenity, allows a jury to decide that material is illegal based on how the jury feels about it. Patent offensiveness is an extremely subjective standard; coupled with the contemporary community standard provision, below, it is a recipe for disaster. In a case called Eckstein v. Melson, the owner of a bookstore was threatened with prosecution if she continued carrying obscene, patently offensive materials. But when she asked the prosecutor, the police and numerous other public officials to tell her what she was carrying which was “patently offensive” (FBI agents raiding her shop had seized novels by John Updike, among other materials) no-one would tell her. A “patent offensiveness” standard means that you engage in explicit speech at your own peril.
The 1973 Miller case on obscenity held that local communities could apply their own standards to determining whether material is obscene. This approach barely makes sense for works such as movies or magazines, which distributors can refrain from showing or selling in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas (known as the Amateur Action case) upheld the conviction of two California sysops under Tennessee standards. Their crime had been to place obscene material on their California BBS which offended the community of Memphis, Tennessee. This result, now codified by the CDA ‘s use of the “community standards” wording, means that material placed on the Internet anywhere must satisfy the standards of every community that has Internet access anywhere in the U.S. In other words, the standards of the most conservative community now apply to the entire Internet. Is the CDA unconstitutional? Yes. The basic U.S. rule on freedom of speech is the First Amendment to the U.S. Constitution, which says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Supreme Court cases, notably including Butler v. Michigan (1957), have held that indecency standards cannot be applied to printed matter (that case overturned a law which banned books unfit for children). The extremist rationale of the CDA is that censorship which would be impermissible for the printed word is appropriate for the electronic word, and that works which are protected on paper are subject to censorship on a computer screen. There is no justification for treating the printed and electronic word differently. The consequences of doing so will become most apparent in the next century, as printed books and magazines continue to decline in importance compared to the sheer volume of words available online.
If the full protection of the First Amendment applies only to books and magazines printed on paper, then the First Amendment will become a historical curiosity. The CDA ‘s supporters advance two significant reasons for the law: it is necessary to protect children; it is constitutional because the Internet is no different than the telephone or broadcast media and may be regulated similarly. We will deal with each of these individually. Is the CDA necessary to protect children? First, and as a dispositive matter, the constitutionality of the CDA cannot turn on whether it protects children, despite the emotional appeal of this issue. The Supreme Court in Butler v. Michigan did not spend a lot of time considering the state of youthful minds and the measures available to protect them; it held, instead, that setting all public discourse in Michigan at the level acceptable for children would be “burning down the house to roast the pig.” A law banning books by Miller, Joyce, Burroughs and Nabokov might also protect children who might get hold of them, but would be completely unconstitutional under the First Amendment. Proponents of the CDA have completely ignored the fact that no child can connect to the Internet without the help of an adult. Signing up for an Internet account typically involves presenting a credit card to an ISP. Adults who wish to allow their children to surf the Net unsupervised can sign them up through a child-safe service like Prodigy. Childhood specialists universally criticize parents who allow their children to vegetate in front of the TV unsupervised; the Net raises the same issues of parental responsibility. Ironically, the same Congress that mandated the V-chip which would allow parents to stop undesirable broadcasts at the TV passed the CDA which addresses the same problem by eliminating undesirable speech from the entire Internet. A mature, measured approach to the problem of explicit online speech would involve parental supervision and local screening, not wide-ranging censorship. See the Voters’ Telecommunications Watch Parental Control. Is regulating the Net similar to regulating the telephone, radio or TV? Not at all. The telephone and the broadcast media are all government-supervised monopolies, and Congress and the courts have recognized the government’s right to supervise content as a result. However, the right of government intervention to ban indecent language recognized for these other communications media, though cited as a precedent for the CDA, is actually far less than the profound censorship the CDA envisions. The government and the phone company itself can play no role in regulating the contents of private conversations. In fact, the phone company, as a common carrier, is legally required to carry any kind of private communications without making any distinctions. In the 1980′s, disturbed by the growth of adult 900-line services, Congress tried banning them; the Supreme Court held that indecent speech could not be banned from phone lines. Instead, Congress passed a law, which the Court upheld, mandating that 900-line services require credit cards or, if billed by the local phone company, be “reverse blocked” (you can’t get access unless you request it from the local phone company in writing.) These regulations have allowed 900 line services to exist, while significantly blocking access to minors. By contrast, government involvement in radio and television is based on the “scarcity” doctrine, which holds that government censorship of content is justified by the government’s role in assigning broadcast frequencies on a scarce spectrum. The Supreme Court, in the famous Pacifica (seven dirty words) case, held, as with the telephone, that indecent language cannot be completely banned from radio and television. Current FCC regulations allow indecent speech on broadcast media after ten o’clock at night.
The Internet is not a “scarce” resource and anyone can attach a computer to it without asking the government’s permission. Nor is it a government-licensed common carrier like the phone company. Moreover, the regulations which have been held constitutional for telephone, radio and TV merely seek to shift (“channel”) explicit speech to a time or place where children cannot access it, but not to ban such speech entirely. Doesn’t the CDA merely attempt to channel indecent speech on the Internet? The CDA is extremely ambiguous on this point–with the result that the only safe thing to do is to avoid controversial speech entirely, as many users are already doing. Unlike laws pertaining to telephone, TV and radio, which clearly spell out what is safe (take a credit card, broadcast after ten p.m.), the CDA as written gives absolutely no guidance. None of the methods of channelling decreed for other media works well, or at all, on the Net. The only rational solution for channelling speech on the Net is the parental control solution the Congress rejected even as it was mandating the V-chip: promote the use of child-safe ISP providers and local software to screen undesirable speech. What about the argument that the Internet is “pervasive”? Ithiel de Sola Pool, who in 1983 published a really prescient book called Technologies of Freedom, predicted that the doctrine of “pervasiveness” would someday be used to justify quite “radical” censorship. That day has arrived.
“Pervasiveness” is an ill-thought out doctrine that has been around since the 1880′s, when a court allowed a local phone company to deny service to a subscriber on the grounds that he used foul language. The court’s reasoning was that the wires might get crossed, and another family might pick up its telephone to hear this man cursing! The “pervasiveness” of radio was frequently cited by Herbert Hoover and others to justify the FCC’s role in the 1930′s in censoring the contents of radio broadcasts. The concept simply describes the fact that a communications technology reaches into the home; radio, said Hoover, must be “clean and safe for home consumption”. However, courts, which have frequently mentioned the pervasiveness argument in media cases, have never used it as a basis for upholding a scheme of censorship unless “scarcity” (see above) was also present. If pervasiveness, standing alone, justifies censorship, then it is hard to see why the Supreme Court overturned the state law in Butler v. Michigan, which outlawed books unfit for children. One would hope that books are also pervasive, with at least one or two of them invading most houses. Proponents of the CDA would argue that books must be brought into the house, while the Internet somehow comes in unbidden. The courts have given some credence to this argument, holding that broadcast waves pass the walls of your house whether you want them to or not. However, the Supreme Court has most recently suggested that the “pervasiveness” argument would not be valid for cable television, which it characterized as an invited guest in the home. This suggests that the Court would also find (as it should) that the Internet is also invited into the home and is not “pervasive.” The American Civil Liberties Union, Centre for Democracy and Technology, and other organizations have filed lawsuits to hold the CDA unconstitutional. One of these lawsuits is scheduled for a hearing in federal court in Philadelphia at the end of March 1996, during which a three-judge panel will determine if the CDA is unconstitutional under the First Amendment. One of the authors of this FAQ, Jonathan Wallace, is a plaintiff in that lawsuit. What is the relationship between the CDA and obscenity laws? Prior to the CDA, federal obscenity law already applied to material distributed on the Internet, as the Amateur Action case illustrates. Under that law, as interpreted by the 1973 Miller case, obscene materials are those which are prurient and (ii)patently offensive under contemporary community standards and which lack significant scientific, literary, artistic or political (“SLAP”) value. Cases in recent decades have indicated that only visual images–photographs and films–will be held obscene under this standard, as pure text is always found to have at least minimal literary value. The CDA makes illegal a large zone of speech which obscenity laws don’t touch–material depicting or describing sexual or excretory acts or organs, which is not prurient, but is patently offensive to somebody, even though it has SLAP value. Is it true that the CDA outlaws putting abortion information on the Internet? It’s true. One section of the CDA confirms that the federal postal obscenity law, first passed in 1873, applies to cyberspace. That law included a section which hasn’t been enforced in decades, but which is still on the books, making it illegal to pass abortion information across state lines. Congressional backers of the CDA claim they didn’t intend to outlaw the communication of abortion information on the Internet, and President Clinton has said that he will not allow the Justice Department to enforce it. Nevertheless, the law is on the books, and could be enforced in a future presidential administration, if it is not thrown out by the federal court. (Jonathan Wallace)
For more information check out the following organizations:
1.The American Civil Liberties Union
2.Voter’s Telecommunications Watch
3.Electronic Frontier Foundation
4.Center for Democracy and Technology
5.The Ethical Spectacle