One section of the Communications Decency Act (CDA) is meant to prevent minors from accessing such offensive material. The act says that anyone making patently offensive or indecent materials accessible to minors through the Internet will be fined and/or imprisoned for up to two years. The CDA is part of a larger telecommunications deregulation act signed into law Feb. 8, 1996. "The fate of the Internet and the future of the First Amendment in the information age hang in the balance," according to The Citizens Internet Empowerment Coalition.
With a preliminary injunction in place, advocates are preparing to engage the battle again. The American Civil Liberties Union (ACLU) and 19 other agencies including Planned Parenthood, the Queer Resources Directory and the Electronic Frontiers Foundation filed suit and won the TRO on Feb. 15, 1996, against the CDA insofar as it extends to indecent speech. A preliminary injunction hearing then took place in Philadelphia (before a panel consisting of the TRO trial judge and two appellate judges), which resulted in a unanimous ruling for a permanent injunction on June 12. The permanent injunction lasted until the case reached the Supreme Court, which on March 19. According to The Citizens Internet Empowerment Coalition, a decision is expected in June of 1997.
Many issues still remain to be resolved, among them: What community standards apply?, How can the law be enforced? and Is this a matter of government intervention?
Material on the Internet ranges from X-rated, hard-core pornography, to material suited for the youngest child, such as that found on Disney's Web site. But what is being debated here are sites somewhere in between, which contain questionable material with social value, such as Planned Parenthood's site, which discusses abortion, and that of the Queer Resources directory, which discusses safe sex.
The Internet is a computer network which allows communications via private communications such as electronic mail (e-mail), computer discussion groups (newsgroups), computer bulletin boards, written conference calls (chat rooms), messages on specific topics sent out to registered users (mailing lists), informational databases, sites similar to anarchic magazines (World Wide Web sites) and search engines, which are used to sift through the thousands of on-line databases for information on specific topics.
Once connected to the Internet, subscribers can use a pseudonym to send, receive and view communications. Since a user is not visible and there may be no way to tell his/her true identity, it is also near impossible to tell his/her age without the use of a credit card, which may even then not be their own, making age verification difficult.
"It is well known that many of the new information technologies provide pornographers with a powerful mechanism to distribute their old wares and produce new ones," says Harvard legal scholar Anne Branscomb. Although some are enthusiastic about any restrictions that can be put on patently offensive or indecent material, many still believe the CDA undermines protections of on-line privacy and is unnecessary, unconstitutional and unenforceable.
Censorship of the Internet is an American phenomenon relating to the new conservatism, presidential politics and family values. In the 1994 midterm elections, American citizens elected the first Republican Congress in almost 50 years. This was a tremendous victory for the Republicans, and the greatest exchange of power from a minority to a majority party in the Twentieth Century.
"The Christian Coalition has made censoring the Internet one of the tenets of its Contract with the American Family," says Robert Corn-Revere, a Washington, D.C. law firm partner who teaches First Amendment law. The contract promised to, among other things, restrict pornography, saying, "The message of the election was clear. The American people want lower taxes, less government, strong families, protection of innocent human life, and traditional values."
In June of 1995 the article "Marketing Pornography on the Information Superhighway...", was published in the Georgetown Law Journal describing the growth of Internet pornography as "explosive". It was based on a study of descriptions of pornographic pictures on selected adult computer bulletin boards.
The following month, Time published a cover story about the article, which initiated a series of Senate hearings and proposed bills, and eventually culminated in the CDA despite the flurry of Internet articles critiquing the original study on its conceptual, logical and methodological flaws.
Presidential candidates, already waging their election campaign for next November, had not wanted to alienate the many potential voters expressing conservative opinions by opposing a bill to protect children from obscenity -- no matter how badly drafted it was.
Since most on-line systems are potentially accessible to minors, and it is difficult to judge a user's age, the act effectively bans all patently offensive or indecent expression on the Internet, thus restricting the adult population to only what is fit for children, according to the ACLU's Web page (http://www.aclu.org). "It is analogous to saying that there can be no books in a tax-exempt library that are potentially offensive to children," says Lee Sproull, a Boston University management professor and sociologist studying how computer-based technology changes society.
Many say the act is unconstitutional. "It raises grave Constitutional questions and poses great risks for the future of freedom of speech on the nation's computer-communications forums," says the Electronic Frontiers Foundation, a non-profit civil liberties organization designed to protect privacy, free expression and Internet access. The Supreme Court has more than once overruled such legislation, saying that such "indecency" is Constitutionally protected. "It seems likely that the law will be struck down," says Attorney Howard Schweber, author of And Then the Railroad Came: Law, Pornography, and the Regulation of Cyberspace.
The Supreme Court shot down a similar attempt by Congress to abolish dial-a- porn in 1988 by making it a crime to provide obscene or indecent commercial telephone messages over state lines, according to The First Amendment and the Fourth Estate, by T. Barton Carter, Marc A. Franklin and Jay B. Wright. Obscenity and indency are separate entities in legal matters. Whereas obscene material refers to sexual communication without serious literary, political, scientific or artistic value, patently offensive or indecent material may have such value, and is not necessarily sexual. The Court unanimously held the statute unconstitutional insofar as it limited material that was not obscene, despite the fact that enterprising minors might find a way to avoid lesser restrictions, such as codes, scrambling procedures and access by credit card only.
The ACLU calls the CDA vague, because it uses inherently subjective words such as "patently offensive" or "indecent" without defining them. Vague statutes are unconstitutional because they could curtail speech protected by the Constitution and because a reasonable person would not know what speech is forbidden. "Are gay rights discussion groups indecent? Are abortion rights discussions?" asks Larry Lessig, University of Chicago cyberspace law professor. Vague criminal prohibitions on speech are particularly bad because the uncertainty causes people to steer far wider of the unlawful zone than if the limits were clearly marked. "You should be able to walk right up to the border," says Schweber. And Gary Kabet, managing editor of Hardkink, an on-line magazine of "esoteric sexuality", says "nobody wants to go into an honest business as an outlaw."
Furthermore, indecent or patently offensive words are inherently subjective, says David Huizenga, a 30-year-old Harvard biochemistry doctoral student. The act exacerbates the problem of vagueness by making the "patent offensiveness" of the communication dependent upon "contemporary community standards." Yet on the Internet, the average person is unlikely to know what words are acceptable, so they would not know what speech is forbidden. The act gives no guidance on how to apply the standards of patently offensive or indecent in this context.
Polintan, the Filipino-American woman who had a visceral reaction to hate speech she found on the Internet, says her experience was still not enough to make her support the CDA. "The law ignores the fact that the Internet is a global community," Polintan points out. It bases indecency on "community standards". But what community is relevant here? That of the sender or of the receiver? Of the receiver in France or the receiver in Idaho? That of a particular newsgroup or electronic community? Schweber asserts that it is "wrong-headed to try to translate community standards to cyberspace because it is too large." About 75,000 on-line systems are found on the Internet, according to the ACLU. "If there is going to be a legal standard," he insists, "it will have to be a national standard."
Whether or not the government should regulate the Internet is another question. "It seems like most of the people who support the CDA don't actually use the Internet," according to one Systems Administrator, who asked to remain anonymous. But Huizenga is an exception. He spends much time on the Internet, but still thinks the CDA is a good idea.
"While I have inadvertently wandered into the dark underbelly of the Internet, which exposes hatred, smut and obscenity," says Polintan, "I reserve the right to decide upon what its value is. That right is purely mine, and not some bureaucrat censor's job."
Schweber disagrees with that assessment, "Some kinds of speech function to stop other peoples' expression. Pornography will drive away some people from the Internet." And there is, of course, the children.
Huizenga is concerned about what his two-year-old might see on the Internet. He himself has accidentally run across sites objectifying women that he wouldn't want his daughter to see, either now or 12 years from now. He says that with the Internet, as with movies, adults have different reactions to material. He compares the CDA's regulations to those placed on sexual or violent movies, like Reservoir Dogs. He says he sees the movie differently than his two-year-old daughter would. "She would have nightmares for weeks. She gets scared just with the lights off ." So he thinks the CDA is a good idea.
But Polintan argues, "the law abandons responsibility to family,
one more rung on the ladder of the welfare state. Instead of parents
screening sites for their children, they may rely on the state
to
do it."
Huizenga responds, "Absolutely, the regulation should come from the parent." But he stresses that the parent can't always be there, so there should be some government regulation.
Julian Dibbell, "cyberspace expert" and regular contributor to Village Voice and Wired, says, "I sympathize with the desire to protect children from some kinds of information, but I think there are sufficient technological means for parents to handle that much more effectively on an individual basis." According to the ACLU, there are many low-cost or free software programs that will filter out unwanted material.
David R. Johnson, Senior Policy Fellow of the Electronic Frontiers Foundation, has other suggestions, including making sure Internet content is properly labeled. "If the market provides on-line systems that contain only material suitable for children, generated by a combination of technical screens, editorial selection and neighborhood watch committees, we will have provided adequate means to allow parents to control where their children go."
Furthermore, accidental exposure to patently offensive or indecent material is unlikely, says the ACLU. Before users even see the information they have sought out, they will generally see a subject line indicating the content.
Computer users also disagree about how enforceable the act is. Once a user becomes connected to a global system like the Internet, there are no central gatekeepers to determine what sites that person can visit. And how could the United States keep overseas users from posting patently offensive or indecent information which Americans could then download? Sproull says, "It is not possible to enforce such legislation because anyone with a telephone, modem, and personal computer can be an information provider. The government cannot control it. It may end up with some of the features of Prohibition, widely ignored by all social classes and social strata, but eventually repealed." Many say the only effective way to regulate the information content would be to do so from the recipient's computer.
But Schweber contends, "It's unrealistic that there's no meaningful way to enforce the CDA." For example, he says, the government could screen all incoming mail, which would slow enforcement but not stop it.
Lessig agrees with Schweber, "Cyberspace has the technology of regulation that Stalin could only dream of." For instance, in response to a lawsuit for carrying a particular newsgroup, Compuserve set up a sytem that "allows it to discriminate against international people on the basis of country," he says. "This technology could be easily extended." He predicts that such regulatory technology will be imperfect, but will help protect intellectual property.
One user of alt.censorship, an on-line censorship newsgroup, adds, "The government can also bring economic and other pressures to bear on other countries to "encourage" cooperation."
Huizenga agrees that the law is imperfect, but adds, "that doesn't mean that we should get rid of the whole kit and kaboodle." He says the law will inspire people to create technology that will let those who want the information get it. "By making it illegal to provide [indecent material], in a sense, you are saying nobody can get it," he says. "That is not an optimal way." But he thinks that until new technology is achieved, it is the best way.
Such access to ideas, as that found on-line, is incomparable to any other communication medium, says the ACLU. Unlike broadcasting, which restricts the number of voices heard because of its inherently limited number of channels, the Internet's potential to carry ideas is unlimited. Anyone with a computer, modem and Internet connection can instantaneously publish their ideas to countless people around the world.
Poverty and intelligence are the only real restrictions on Internet access, and even these are minimal. Basic Internet skills are easy to learn, and although computers currently require an initial investment that the poorest cannot afford, prices are dropping. Also, once initial and monthly Internet access fees are paid, most sites are free. In addition, poor people have at least limited access to computers through libraries and other nonprofit institutions.
The Internet is an inexpensive medium which allows citizens the opportunity to disseminate ideas widely without discrimination due to class, race, gender, sexual preferences, appearance or physical disability, because of its anonymity. Lessig calls it "that one place where who I am counts very little. It is this feature that panics those who haven't been there." He describes the response of a mother of three, who says, "Here is a place where my voice is not the voice of a mother or a woman. I can speak and my words are heard as your words are heard now. Cyberspace frees me from who I am in the real world." Lessig admonishes people to "protect it or it will become a replication of the real world with all its discriminations."