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June 1995, Week 3


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Jeremy Butler <[log in to unmask]>
Reply To:
Film and TV Studies Discussion List <[log in to unmask]>
Sun, 18 Jun 1995 10:24:07 CST
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From the Effector, a publication of the Electronic Frontier Foundation
([log in to unmask]).
* See or, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
Subject: EFF Analysis of Communications Decency Act as Passed by Senate
On June 14, 1995, the United States Senate approved by a vote of 84-16 an
amendment to the Senate's omnibus telecommunications-deregulation bill
that raises grave Constitutional questions and poses great risks for the
future of freedom of speech on the nation's computer-communications
Sponsored by Sen. Jim Exon (D-Nebraska), the amendment originated as an
independent bill titled Communications Decency Act of 1995 (CDA), and is
intended, according to its sponsor, both to prohibit "the [computer]
equivalent of obscene telephone calls" and to prohibit the distribution to
children of materials with sexual content.
As drafted, however, the legislation not only fails to solve the problems
it is intended to address, but it also imposes content restrictions on
computer communications that would chill First-Amendment-protected speech
and, in effect, restrict adults in the public forums of computer networks
to writing and reading only such content as is suitable for children.
The Communications Decency Act would change the language of Title 47,
United States Code, Section 223, a section that primarily does two things:
1) it prohibits "obscene or harassing" phone calls and other, similar,
abusive uses of the telephone, and
2) it imposes regulation (promulgated and administered by the Federal
Communications Commission) on telephone services that provide so-called
"indecent" content and prohibits those services from providing legally
obscene content.
The amending language drafted by Sen. Exon and passed by the Senate
substantially restructures and alters the provisions of this section in an
effort to bring computer communications under the statute. If the
Senate-approved language becomes law, provisions in the amended statute
(a) Expand the scope of the statute from telephones to "telecommunications
devices" (such as computers, modems, and the data servers and conferencing
systems used by Internet sites and by commercial providers like America
Online and CompuServe);
(b) Define as a criminal offense any communication that is legally obscene
or indecent if that communication is sent over a telecommunications device
"with intent to annoy, abuse, threaten, or harass another person";
(c) Penalize any person or entity who, by use of a telecommunication
device, "knowingly ... makes or makes available" any content or material
that is legally obscene; and
(d) Penalize any person or entity who "knowingly ... makes or makes
available" to a person under the age of 18 any content or material that is
The CDA outlines affirmative defenses for persons or entities who might
otherwise be liable under the statute's criminal provisions.
In spite of the efforts of Sen. Exon to address in this revision of his
legislation those criticisms and constitutional issues raised by earlier
drafts of it, the language of the CDA as passed by the Senate is riddled
with flaws that threaten the First Amendment rights both of online service
providers and of individual citizens.
None of the CDA's prohibitions of "obscene" communications raise any
constitutional issues; it is well-settled law that obscene content is not
protected under the Constitution. In contrast, CDA's restrictions on
"indecent" speech are deeply problematic.
What is "indecent" speech and what is its significance? In general,
"indecent" speech is nonobscene material that deals explicitly with sex or
that uses profane language. The Supreme Court has repeatedly stated that
such "indecency" is Constitutionally protected. Further, the Court has
stated that indecent speech cannot be banned altogether -- not even in
broadcasting, the single communications medium in which the federal
government traditionally has held broad powers of content control.
The section of the CDA dealing with "obscene or harassing" communications
penalizes not only the sending of "obscene" communications, but also those
that are "indecent." This prohibition of indecent content, even though
limited somewhat in application by the section's intent requirement, is
unconstitutional on its face.
In Sable Communications v. FCC (1989), a case involving dial-in phone-sex
services, the U.S. Supreme Court held that, even though a ban on
*obscenity* in
"dial-a-porn" services is constitutional, a ban on *indecency* is not.
Citing earlier holdings, the Court said that "[t]he government may not
reduce the adult population to only what is fit for children."
What are some examples of "indecent" content? The most famous example
probably is the George Carlin comedy monologue that was the basis of the
Supreme Court case F.C.C. v. Pacifica Foundation (1978). In that
monologue, Carlin discusses the "Seven Dirty Words" that cannot be uttered
in broadcast media. Other examples of "indecency" could include passages
from John Updike or Erica Jong novels, certain rock lyrics, and Dr. Ruth
Westheimer's sexual-advice column. Under the CDA, it would be criminal to
"knowingly" publish such material on the Internet unless children were
affirmatively denied access to it. It's as if the manager of a Barnes &
Noble outlet could be sent to jail simply because children could wander
the bookstore's aisles and search for the racy passages in a Judith Krantz
or Harold Robbins novel.
The Supreme Court has consistently held, both before and after its
landmark obscenity decision in Miller v. California (1973), that while
sexual material and profane language can be regulated in some specifically
defined contexts (e.g., the FCC can require that "indecent" content in
broadcasting be limited to certain hours of the broadcasting schedule when
children are less likely to be exposed), in general indecency is fully
by the First Amendment. The Court has even recognized that profane
language may be essential to political speech, since the emotional power
of particular words may be as important as their intellectual content. As
Justice Harlan commented in Cohen v. California (1971), "One man's
vulgarity is another's lyric."
It's important to note that not every application of this part of the CDA
would be unconstitutional. If the "obscene or harassing" offense language
been limited to instances in which the speaker intends to "threaten," it
would have raised no constitutional problems. (A threat of blackmail or
physical violence, for example, is not protected speech.)  But the CDA goes
beyond threats -- it criminalizes the use of "indecent" language even when
speaker merely intends for his content to be "annoying," and this
prohibition treads squarely on speakers' First Amendment rights. After
all, the First Amendment was drafted to protect offensive, annoying, and
disturbing speech -- there is little need for protection of pleasant and
uncontroversial speech, since few people feel impelled to ban it. As
Justice Douglas observed in Terminiello v. Chicago (1949), free speech
"may best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people
to anger." For example, a citizen offended by the passage of the CDA who
shouts an indecent comment at his U.S. Senator may very well intend to
annoy the Senator -- nevertheless, such expression is protected under
the First Amendment. It is constitutionally absurd that speech that would
be protected if shouted on the street would turn the speaker into a felon
if sent by e-mail.
Is it constitutional for Congress to declare that computer communications
are a medium like broadcasting, where it is allowable for the FCC to
impose content-related regulations? Clearly not. Prior to Sen. Exon's
proposed changes to Section 223, the FCC has had content control over only
two specific types of communications media:
(1) broadcasting media like TV and radio (and broadcasting-related
technologies, such as cable TV), and
(2) the narrow class of telephone-based commercial services that requires
the assistance and support of government-regulated common carriers.
In no other communications medium does the government have the
constitutional authority to impose broad regulation of indecent content.
The justification for the federal government's special role in regulation
of broadcasting is twofold. The first rationale for such a broad
regulatory role was the "scarcity of frequencies" argument, which appears
the Supreme Court's decision in Red Lion Broadcasting Co. v. FCC
(1969). In that case, the Court held that there is a finite number of
workable broadcasting frequencies, and that the scarcity of this important
public resource entails that the airwaves be allocated and supervised by
the federal government in order to best serve the public interest. The
second rationale for a special government role in broadcasting appears in
FCC v. Pacifica Foundation (the "Seven Dirty Words" case discussed
above). In this case the Court argued that broadcasting is an especially
"pervasive" medium that intrudes into the privacy of the home, creating a
constant risk that adults will be exposed to offensive material, and
children to indecent material, without warning.
The justification for regulation of the telephone-based services is
grounded in the government's special role in supervising common carriers.
Since the telephone systems of this country, many of which amount to
monopolies, are common carriers, they are appropriately under the
jurisdiction of the FCC. It makes sense for phone-sex services, which rely
on the cooperation of common carriers, to fall under FCC jurisdiction as
*Neither the broadcasting rationales nor the common-carrier rationale
support government content control over computer communications.*
First of all, the new medium of computer-based communications -- which may
take place over everything from large-scale Internet access providers and
commercial conferencing systems to the PC-based bulletin-board system
running in a hobbyist's basement -- isn't afflicted with "scarcity."
Computing hardware itself is increasingly inexpensive, for example, and
one of the basic facts of modern computer communication is that whenever
you add a computer to the Internet, you *increase* the Internet's size and
Secondly, computer-based communications aren't "pervasive" as that term is
used in the Pacifica case. In the world of broadcasting, content is
"pushed" at audiences by TV and radio stations and broadcasting networks
-- audiences are primarily passive recipients of programming. In computer
communications, in contrast, content is *pulled* by users from various
locations and resources around the globe through the Internet or from the
huge data servers maintained by services like Prodigy and American Online.
Exposure to content is primary *driven by user choice*. For users with
even minimal experience, there is little risk of unwitting exposure to
offensive or indecent material.
Finally, online service providers aren't common carriers and don't want to
be -- it is the nature of this kind of service that providers must reserve
the right to make certain basic choices about content. In contrast, a
common carrier like AT&T or BellSouth has to "take all comers." (If online
service providers were treated as common carriers, we might imagine a day
when the FCC requires that an NAACP-sponsored BBS carry hateful messages
from members of the Ku Klux Klan.)
In sum, the narrow constitutional justifications for content regulation of
two specific types of media do not extend to the traditional print
media, films or oral conversations. Clearly, there is no Constitutional
rationale for extending intrusive content-regulatory control to online
communications. This means that the CDA's "shoehorning" of online
communications into the jurisdiction of the FCC is itself
It is clear that Congress could not constitutionally grant the FCC the
power to tell The New Yorker not to print profane language -- even though
*children* might come across a copy of The New Yorker. Surely it is
equally clear that Congress cannot grant the FCC the authority to dictate
how providers like Netcom and CompuServe handle content that contains such
Even if the federal government had the constitutional authority to
regulate indecency in computer communications, it would be required by the
First Amendment to employ only the "least restrictive means" in doing so.
In the Sable case, Court noted that there are less restrictive means than
a total ban for protecting children from indecent content on phone-sex
services. These include such measures as requiring various procedures to
verify customers' ages and to deny services to minors.
The Exon language creates an affirmative defense for online service
providers who implement the same types of procedures that the FCC now
requires of phone-sex services. But what works for phone-sex services
clearly would not work for computer-communications services. In this
fundamentally different medium, those FCC-enforced procedures are not a
"least restrictive means" -- in fact, they are potentially among the most
The language that penalizes anyone who "makes or makes available" indecent
content to a minor would require an access provider like Netcom to cease
carrying the entire* hierarchy, the great majority of which is
First-Amendment-protected speech. Suppose Netcom tried to avail
itself of legal immunity for transmitting indecency by, say, limiting
subscriber access to the "indecent" Usenet newsgroups to Netcom
subscribers age 18 or over. Since Netcom, like all Internet access
providers, is also a Usenet distribution node, *the company would still be
liable*, since, by passing "indecent" Usenet traffic through, it would
"make available" that indecent content to minors elsewhere on the Net who
aren't Netcom customers.
Note: this analysis is not meant to imply that *no* government
regulation of computer communications would meet the "least restrictive
means." As a practical matter, this medium is *uniquely suited* to
measures that simultaneously protect sensitive users and children from
offensive content and allow the full range of constitutionally protected
speech on the Net. Since both the computers that users employ to read the
Net and those that providers use to administer the Net are highly
intelligent and programmable devices, it is relatively easy to design
tools that individuals can use to filter offensive content and that
parents can use to screen content for their children. The government's
promotion of the development and implementation of such tools, if done in
a way consistent with First Amendment guarantees, would likely qualify as
a "least restrictive means."
Furthermore, there are constitutional reasons for favoring policies that
empower individuals and families to make their own content choices. In
Wisconsin v. Yoder (1972), the Supreme Court acknowledged that the right of
parents to determine what is appropriate for their children is
constitutionally protected. Filtering tools could be the fundamental means
of preserving family values while exploring global computer networks.
The effect of the CDA's provisions regarding indecent content and minors
would be both dramatic and disastrous. If enacted, the CDA would
effectively turn all the public areas of the Net -- and all of the
global conferencing system known as Usenet -- into the equivalent of the
Children's Room at the public library. Traditionally, every large public
library has a Children's Room -- a confined area of the library with
content deemed safe for children. Outside of the Children's Room, the rest
of the library is geared toward, and available to, adults.
The Exon language would turn the Net as a whole into the *inverse* of the
public library -- the public spaces, including Usenet, would be regulated
as safe for children, while adults would have to talk about adult content
(detailed discussions of sexual content in the work of James Joyce,
explanations of Shakespeare's bawdy puns, or descriptions of proper
techniques for safe sex, to name some examples) in confined, nonpublic
(and probably non-global) subforums or "rooms." There would be no more
wide-ranging debates with the full set of potential international
participants about the merits of THE SATANIC VERSES -- after all, that
book has indecent content. We'd have to be content with the narrower range
of participants we could lure to an "adult" room on CompuServe or AOL -- a
small group of paying subscribers rather than a large population of
discussants from commercial and noncommercial systems alike. The CDA would
diminish and perhaps destroy the intellectual diversity and vibrancy of
the Net.
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