On June 26, 1997, the United States Supreme Court handed down a 7 - 2 decision striking down the so-called Communications Decency Act, a throw-in to the Telecommunications Act of 1996 which would have made anyone who sent an “indecent” communication to a person under the age of 18 subject to a two-year prison sentence and a $250,000 fine.

The CDA was introduced by Senators James Exon (D-Neb., retired), and Dan Coates (R-Ind.), over the objections of more Internet-savvy Representatives such as Ron Wyden (then the representative from Oregon’s 3rd Congressional District), Christopher Cox (R-Cal.) and even Newt Gingrich.

The sad story of the CDA is a lesson in vigilance for us red blooded, porn-loving Americans who believe the First Amendment means what it says. At best, it shows how seemingly intelligent people (Congress) can be totally clueless about a technology that this 27-year-old law.geek has accepted as a matter of course for the past three years.

At worst, it shows Congress’s shameless groveling to win the support of vocal New Victorians like William Bennett, who believe that American society should be purged of anything that offends their fragile sensibilities. Of course, it’s “to protect the children,” meaning bringing American culture down to the level of a child, or more appropriately, the level of a whining, ultrasensitive conservative who’s offended that Bart Simpson says “hell,” and whose underwear is still in a knot about the "Seinfeld" masturbation episode four years ago, let alone the existence of the series "Ellen."

Marty Rimm’s Flawed Study and the Birth of the CDA

The road to Sodom is paved with yellow journalism. The July 3, 1995 issue of Time had as its cover story a feature on “CYBERPORN!” illustrated by a cover picture of a shocked child staring into a computer screen.

This lurid image was compounded by what the article relied on: a flawed study by a Carnegie-Mellon University undergraduate named Marty Rimm that used exaggeration, flawed statistical analysis, and disingenuous confusion of the Internet and private bulletin board systems (BBSs) to overstate the amount of pornography on the Internet. Time falsely alluded that children were being constantly exposed to pornography, prompting Congress to take action.

Congresscritters like Exon, Coates, and Charles Grassley (R-Iowa) were sucked in by the story and Rimm’s study; Electronic Freedom Foundation staff counsel Mike Godwin followed the footnotes of Rimm’s study, which was published in the Georgetown Law Journal, and found a connection between Rimm and several veteran anti-pornography and anti-free-speech crusaders, including University of Michigan law professor Catharine MacKinnon and obscenity prosecutor Bruce Taylor, who now heads the anti-free-speech group the National Law Center for Children and Families.

Even though many Congresscritters knew the CDA was unconstitutional, it still passed. Wouldn’t want to appear soft, especially with Exon, Coates, and Grassley blustering about “child pornography on the Internet.” The ACLU filed suit on February 8, immediately after President Clinton signed the Communications Act of 1996, which the CDA was glommed onto.

The U.S. District Court in Philadelphia struck the CDA down as unconstitutional the next week, and the 3rd Circuit Court of Appeals upheld the lower court’s ruling; the Attorney General then appealed to the U.S. Supreme Court.

Analysis of the Specific Prohibitions of the CDA

Supreme Court Justice John Paul Stevens’s opinion disposed of several arguments of the Justice Department, saying that even though communications to minors can be restricted more than communications to adults, the statute is vague; and that the Internet is not a restricted-access, intrusive medium like radio and television, so broadcasting’s stricter standards do not apply.

“Protect the Children” Wasn’t a Valid Argument

Stevens’s opinion refused to accept the government’s analogy that the case was like Ginsberg v. New York, where the Supreme Court ruled that the state could prohibit selling materials considered “obscene for minors,” even though they were not “obscene” for adults. Stevens distinguished this case from the CDA by noting that the CDA is much more restrictive in its application, particularly in that the CDA does not define what “indecent” is in its prohibition of communications to someone under the age of 18, and does not give an exception to materials with “serious literary, artistic, political or scientific value”.

Justice Sandra Day O’Connor and Chief Justice William Rehnquist had a dissenting opinion on prohibition of communications to minors; while they agreed with Stevens that the CDA was unconstitutional as to communications among adults, or in mixed adult/minor company, they ruled that Ginsberg allowed bans on knowing communication of “indecent” material to a particular minor or a group of minors. O’Connor acknowledged that it is impossible to set up a consistent minor screen on the Internet, unlike in adult bookstores or nightclubs, where a clerk or bouncer can check patron’s ID's, and as such, people who put up Web pages, post messages to newsgroups, chat to mixed adult-minor groups on IRC, or otherwise put material up in public on the Net should not be held liable; only those who sent “indecent” materials directly to a minor or a group of minors should be held liable.

The Internet is Not Broadcasting

The Justice Department also equated the Internet with broadcasting, which was given much less leeway with regard to “obscene” and “indecent” programming. The FCC v. Pacifica Foundation case ruled that a New York radio station had violated FCC regulations by broadcasting comedian George Carlin’s “Filthy Words” monologue in the afternoon.

Judge Stevens’s opinion distinguished the Internet from radio and television, noting that the FCC had been regulating broadcasting since its inception because the scarcity of frequencies. In contrast to broadcasting, anyone with knowledge of HTML programming, an HTML editor, or who employs a professional web designer to create a page can reach millions of people worldwide, in essence becoming a worldwide publisher.

Stevens also distinguished the Internet from radio and television; part of the reasoning giving the FCC the power to regulate “indecent” speech over the air is the possibility that someone could be “surprised” by “indecent” programming. The District Court found, on the other hand, that “users seldom encounter content by accident,” that “almost all sexually explicit images are preceded by warnings as to the content,” and cited testimony that “odds are slim that a user would come across a sexually explicit site by accident.”

Stevens then analogized the sexually-oriented material on the Internet to “dial-a-porn,” in which a person must affirmatively seek out the material; an earlier case (Sable Communications of California v. FCC) established that indecent, but not “obscene” material could not be prohibited in a non-broadcast medium.

Vagueness of the CDA

The Supreme Court looked sharply at the breadth of the CDA, since it was a content-based restriction on speech with criminal penalties.

Under the Miller v. California test for obscenity, material can be banned for obscenity if: 1) The average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; 2) The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and 3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Note: the Oregon Supreme Court has ruled that even material that satisfies this test may not be banned, as the Oregon Constitution’s Free Speech clause gives “obscene” material protection under the Oregon Constitution.

However, the court ruled that the CDA’s test ignores large portions of the Miller test, making the law unconstitutionally vague. Specifically, the CDA only includes the “patently offensive” test of the obscenity definition. It ignores the requirement that the material be sexual in nature and on a list of specifically banned depictions of sexual activities, and it ignores the “prurient interest” and “redeeming values” portions entirely, thus sweeping whole sections of protected speech into illegality.

As the court put it, “In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to each other. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”

These alternatives do not exist; the lower courts found that it’s impossible to determine the age of a user of e-mail, listservs (e-mail mailing lists), Usenet newsgroups, or real-time chat services (IRC and chat rooms), and that forcing all Web sites to verify their users are adults would cause Web site owners undue expense.

The court found that the only effective way to screen Internet content is through the use of user-employed filters to block objectionable sites from children and sensitive people. These filters can be used by the parent to block specific materials without government interference. ((Three such filters are displayed on Exotic Magazine's home page as an alternative to censorship).

The CDA Might Rise Again...

The Supreme Court’s striking down the CDA doesn’t mean the Net is free, however. The New Victorians are already waving the bloody shirt of “protect the children” while trying to pass new legislation to muzzle speech and bring the Internet down to pap appropriate for younger children. The governmental relations director of the Christian Coalition has spun the decision into “a road map for future legislation.” (In other words, they didn’t get away with this, but they’ll be back).

It still is illegal to send “obscene” materials through the mail or communicate them over the phone across state lines. The Oregon Supreme Court has ruled that “obscene” materials depicting adults are “protected speech” under the Oregon Constitution. However, a grandstanding prosecutor in another state may try to attack an Oregon Web site or bulletin board by using the hypersensitive standards of another state. (This has already been done; sysops Richard and Carleen Thomas were convicted of sending obscene pictures across state lines in a Federal Court in Memphis, even though their bulletin board, Amateur Action, was in Milpitas, California, the heart of Silicon Valley.)

And even without a conviction, the concept of “obscenity” and its being illegal has a chilling effect on communications. Grandstanding prosecutors and self-styled moralists will go after the unpopular, whether it be depictions of homosexuality, sadomasochism, or perceived violent images. Sometimes, like in the Bellingham Answer Me! case, the persecuted parties will fight back. Most of the time, though, the store owners, sysops, or webmasters will back off, understandably afraid of being pilloried.

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