Indecent Exposure on the Internet,
Law Journal, February 26, 1996.
Act of 1996, signed into law Feb. 8, includes a section that makes it a
federal criminal offense to make indecent material available to minors via
computer. This provision, known as the Exon Amendment, was temporarily
enjoined by a federal judge in
on Feb. 15. The issue has sparked debate among politicians, social and
religious thinkers, civil libertarians, and members of the online
community. The following is excerpted from a Telecommunications Law
seminar now continuing on COUNSEL CONNECT, an online service affiliated
Stewart Baker: The American Civil Liberties Union and a cast of thousands
have now announced the filing of an overbreadth attack on the indecent
speech provisions of the [telecommunications reform] bill. This raises a
few questions. No one has been prosecuted under that provision. No one is
likely ever to be prosecuted for such things as reproducing the Supreme
Court's 1978 Pacifica
decision [the "seven dirty words case," upholding FCC policies restricting
broadcast indecency to hours when children are not in the audience]. So
why shouldn't this suit be rejected as a request for an advisory opinion?
distinguished broadcasting from print without relying once on the notion
of a scarce spectrum that belongs to the public. Instead, the focus was on
the fact that the broadcast came into the home, was hard to avoid until
after at least some offense had been given, and was easily accessible even
to young children. Right now, the Net feels a bit more like print than TV
on that set of standards. But will it feel that way for long? Java and
Netscape 2.0 will give us singing and dancing on the Web, followed shortly
by cussing and stripping. As the Web gets more like TV, will the Pacifica
rationale have more force? (Saying the Pacifica
was clueless is not an answer, or at least not a lawyer's answer.)
Theodore Frank: While the Pacifica
itself did not rely on spectrum scarcity, subsequent Supreme Court
decisions have made it clear that the spectrum rationale played a key part
in the Pacifica
decision. Thus, the Exon Amendment will test whether the intrusion
argument can be used to support the regulation of indecent speech. Part of
the problem for the government, however, is that Pacifica
only justified channeling of indecent material, not a ban. Exon is a ban.
Mark Eckenwiler: I don't know that it's necessary to say that the Pacifica
was clueless. It is perhaps worth noting that the crucial sections of
Stevens' opinion commanded only a plurality. Is that a lawyer's answer?
And as for the suggestion that the challenge by the ACLU, et al., fails
the case-or-controversy requirement, I think a reading of the complaint --
joined by such organizations as
Stop Prison Rape -- makes abundantly clear that what is
at issue is not only the Seven Dirty Words, but also a good deal of
graphic sexual language. Those interested in the complaint will find it at
Baker: There's no doubt that Pacifica's
plurality approved only channeling of indecency. That will make a ban hard
to uphold. On the other hand, what alternatives does government have if it
wants, quite reasonably, to prevent kids from exposure to certain kinds of
The most obvious answer is that there is software to do that. But what
sort of answer is that? Parents who don't have a lot of money to spare are
supposed to spend money on software that will never be completely up to
date and that none of the most offensive Intemet sites will lift a finger
to support? I doubt that we'd be impressed by an adult-bookstore owner
claiming, "I have a constitutional right to sell this stuff in 24-hour
vending machines next to the elementary school. If you don't want your
kids buying it, don't give them cash for lunch. Write checks to the school
The "parents can stop it" argument has always struck me as only modestly
persuasive (and a bit arrogant). Who can do better?
John Fraser: The Article III standing requirement has not been strictly
construed in cases of First Amendment challenges to criminal statutes that
ban categories of speech. The Helms Amendment cases regarding regulation
of obscene and indecent telephony, are recent examples.
Andrew Schwartzman: Ted Frank's reading of Pacifica
and subsequent decisions has force, but if the solicitor general gets his
way, we may soon get a rereading.
In its brief in Alliance for Community
Media v. FCC
and Denver Area Educational
Telecommunications Consortium v. FCC,
has expressly asked the Supreme Court to extend the Pacifica
rationale to cable, based on the current pervasiveness of cable. A victory
here would certainly assist in defense of the Exon Amendment.
Christina Cooley: We're retrieving the ACLU complaint from the EFF's web
site to load in the COUNSEL CONNECT library. In the meantime, we've loaded
another complaint filed by the editor of American Reporter,
an electronic newspaper delivered by e-mail and over the World Wide Web.
Besides asserting that the "indecency" portions of the Telecommunications
Act of 1996 are unconstitutionally vague, the complaint also claims that
the provisions place an unfair burden on electronic publications compared
to traditional print newspapers.
And editor Joe Shea has presented the court with an example of the sort of
content that the act might apply to, a profanity-filled editorial. Does
that give him a better case-or-controversy argument or not?
Stewart, your questions are good ones. Do we want to "channel" the
indecent material available online in order to protect children? If so,
Frank: Stewart Baker's comment seems to me to go too far. The kinds of
problems he raises exist with dial-a-porn, but the Court had no trouble
striking down a complete ban. It noted that use of credit cards, etc., was
a less restrictive alternative. Similar arguments would appear to exist
with respect to interactive computer services.
Robert Corn-Revere: It is important to note that every Supreme Court
decision since 1978, and many lower court decisions, have emphasized that
holding is quite narrow. It is doubtful that its conclusions can be
stretched to fit other technologies that are not, by any stretch of the
imagination, as ubiquitous as radio or television. Nor are computers
uniquely accessible to children, including those "too young to read."
The analogy of a vending machine for porn in the elementary schools is
amusing, but beside the point. It is not as if the Amateur Action
bulletin-board operators installed terminals in people's homes and then
suggested that they could block the input if they didn't like the message.
Rather, people chose to buy computers in the first place; they make a
further choice to go online, usually by paying a subscription fee to a
third party; and they may make an additional choice about whether to use
the screening software provided with most commercial services. In
addition, they may install added screening software.
is an exception to normal constitutional standards that has been applied
in a limited context. It is not the norm, and is inappropriate when
applied to online technologies.
Baker: At various times in our long relationship, Bob has been a valued
colleague, an effective gadfly, and a ferocious debating partner. But I'm
not sure he's answered the hypothetical. He says people choose to buy
computers and online services. True enough, but they also choose to send
their kids to school on public sidewalks. The question is whether they and
their government have any right to control what kids encounter on the
sidewalks or in cyberspace. I don't think that would be a hard question if
it weren't for the damage done to the rights of adults. (No one doubles,
surely, that government can require adult bookstores to exclude children.)
It strikes me as a bit weird to argue that parents don't have to get
computers or online services if they don't want their kids accessing
or worse. The online services and cyberspace advocates have been telling
us for years that we don't have a choice: We have to be online to gain
access (for ourselves and our children) to the wonders of the information
age. Indeed, Bob [Corn-Revere] seems to be making an argument he'd abhor
if applied to him: that people who don't share his values don't belong
Setting aside Bob's "Cyberspace: Love It or Leave It" argument, we're back
to the claim that people uncomfortable with the contents of
alt.sex.hamsters.duct.tape should spend money for software of dubious
efficacy. And that takes me back to the porno news racks by the elementary
school. I doubt that it would be sufficient to argue that parents could
avoid the problem by walking their kids to school or paying for lunch by
check. Bob, do you agree, or do you think that adults have a First
Amendment right to say or sell anything anywhere without regard to the
effect on children?
Eckenwiler: A few observations. Stewart refers to "parents who don't have
a lot of money" being put in a position where they have to shell out for
NetNanny, etc. I wonder how numerous these indigent parents are, given
that home access to the Net generally costs anywhere from $ 100/annum to
As for the public sidewalks, I am inclined to think that Cohen v. California
[the 1971 decision that upheld the right to wear a jacket bearing the
words "Fuck the Draft"] dooms the little tykes (including mine) to
encountering the public expression of all sorts of vigorous, robust, and,
yes, indecent thoughts and opinions. Specifically, let us recall that
"there were women and children present in the [court-house] corridor," to
quote from the opinion. I don't believe that the adult-book-store cases
as to private noncommercial speech.
Geoffrey Berkin: I propose two responses to the questions posed. I believe
that the vending machine example and related ideas overlook a very
important point. While I have a great deal of trouble reconciling
placement restrictions with the First Amendment, at least in those cases
there are other places where the "objectionable" material can be vended.
On the Internet, there is no other place. There is no possible way to
ensure absolutely that the visitor to an "adult content" site is of age.
Even a digital signature would prove nothing more than that the "signer"
is unique, but there is no guarantee that the person sending the signature
isn't the 16-year-old baby sitter of the signature "owner." Furthermore,
even if the signature is being used by the "owner" the signature itself is
not a representation that the owner is of age.
Thus, the only way to avoid "indecency" is to ban it entirely from the
online world, meaning that adults cannot have full freedom of expression
anywhere on the Internet.
Second, I believe that the issue is ripe because, in light of the
foregoing, speech on the Internet is going to be chilled well past the
freezing point, since the only way to be certain of avoiding prosecution
is to say nothing that can possibly be interpreted as indecent. The new
act not only does not give guidance to what is to be considered as
indecent, but also contains no protection against "political" definitions
of indecency, e.g., a prosecutor in a very conservative community bringing
a prosecution on the ground that the very concept of homosexuality is
indecent, so that even the words gay or lesbian would be criminally
offensive. Similarly, I think it is quite possible that a nongraphic and
non-sexual discussion of abortion will be termed "indecent" by some
prosecutor. As of now, anyone who discusses any topic that relates to sex
or sexuality, or even any political implications of sex or sexuality faces
a risk that somewhere out there a prosecutor will file criminal charges.
For you doubters, you may still be able to find an online copy of a
warrant filed by a justice of the peace in Texas
charging Howard Stern with incitement for his negative comments about
Selena on his syndicated radio program.
Charles Sims: Stewart's position was rejected by the Court in the early
1950s when Justice [Felix] Frankfurter commented on banning speech for
adults in order to protect the sensibilities of children: "Surely, this is
to burn the house to roast the pig." That principle has been repeatedly
invoked by the Court in obscenity/indecency cases, as recently as the 1989
case of Sable Communications of
California v. FCC,
a 9-0 holding that a ban on dial-a-porn regulations struck down in Sable
reached a lot less valuable speech, and impaired the speech interests of
adults, a lot less than the new "Communications Decency Act" does. So, for
all the pontificating about how difficult it is for adults to protect the
sensibilities of their kids without scaring all this stuff of the Net with
criminal sanctions, the Court is likely to just say we'll have to try.
Baker: I think we can take it as given that the Court is unwilling to
accept child protection as a rationale for limiting all speech to that
which is fit for children. That may in fact doom the Exon Amendment, since
it is hard to see how indecent adult speech can occur on the Net and still
be consistent with the law, unless one views the Net as just one of many
avenues for speech.
This raises an interesting contracdiction in the comments above. Is it
really consistent to say that the Net is a luxury available only to the
well-off, so we can ignore the cost of filtering software, while also
arguing that the Net is so important as a means of communicating that it
must itself encompass a full range of adult speech for the First Amendment
to be effective?
The hard question, for me at least, is whether child protection would
justify some government intervention in online discourse. I'm not sure
that it would be unconstitutional to require digital signatures, in
particular a signature that included information about date of birth, to
gain access to adult fora.
There are real privacy issues with such a scheme, but over the long run,
we will need to do something about the risks to kids on the Net if we want
it to be more than a curiosity. So I repeat my query in a more open-ended
way: Can government constitutionally regulate the Net in order to protect
children from some of the content that adults have a right to see? I think
it can -- in fact, I think it has to if we are going to have real
community online, but I am not sure we have yet found tools sufficiently
fine-tuned to do so.
Corn-Revere: I believe the above messages adequately answer Stewart
Baker's arguments regarding regulating the Internet. I will add a couple
of points. First, it appears that Stewart pretty much concedes that the
rationale does not apply to online services or to cyberspace. It is not
the same as broadcasting and cannot be held to the same lax indecency
standard. Instead, he seeks to argue that there should be some ability to
regulate content in cyberspace. While the applicability of obscenity law
or harmful-to-minors restrictions may be an open question in cyberspace,
it is a matter far beyond the question presented by section 502 of the
Second, it is a nice debating point to argue that parents who care about
their children will be kept off the Net by the expense of screening
software, but it is a bit beside the point. We are talking about people
who can afford computers in the first place, and in most cases, have
already shelled out money for online services (which include screening
software as part of the price of admission). Any added expense occasioned
by additional safeguards surely is marginal. As to the effectiveness of
the software, the Exon Amendment depends on screening anyway, doesn't it?
Moreover, speaking as a father of four, there still needs to be a role for
parents to play, doesn't there? In any event, the Net cannot be compared
to an adult bookstore it is all bookstores. The "adult" portions cannot be
regulated without regulating all of it, and as I pointed out, the
broadcast indecency standard is too insensitive to First Amendment rights
to be applied in this context.
Fraser: As lawyers, we have all spent a good deal of mental energy trying
to select the best legal analogy (and set of precedents) by which to judge
events on the Internet. Whether the issue is political speech, obscene
speech, indecent action scenes, or a variety of "how to" guides, I think
the entire legal community needs to break out of the mold previously used
to regulate speech and other forms of communication. The Internet is a
radically new mechanism, and reasoning by analogy will lead us astray.
The bench and the bar need to ask several questions. What are the possible
models for observation and control of Internet activities? What effects
occur with each model? How will the institutions and individuals who
participate respond to each model? Will each model actually achieve the
goals in the real world, where encryption and other devices will come into
play? At what cost can any level of controlbe achieved, and is the cost
Robert Hamilton: John Fraser's concerns regarding our tendency to "reason
by analogy" in the context of online legal questions is one that has been
proffered by many who have published in this area. The common refrain is
that the fundamental characteristics and dynamics of online communication
are so different and unique that no analogy to other media is adequate and
that a whole new "paradigm" of First Amendment law needs to be
constructed. while I agree that analogies can lead to problems and
erroneous results (e.g., Prodigy's analogy of its role to that of The New York Times
in deciding what to print in its newspaper), I don't think it is either
realistic or appropriate to disregard analogous contexts in other media.
Recognizing the philosophical complexity of the point, I still think that
the essence of justice is affording similar treatment to people who are
similarly situated. "Reasoning by analogy" is really just a way of
articulating one's view of the appropriate legal principle to apply to a
particular form of conduct. If the nature of CompuServe's conduct in
making "Rumorville" available to its subscribers is the same as the
conduct of a newsstand owner or bookseller who makes the National Enquirer
available to his patrons by placing the publication on his shelves, the
same rule of law should apply. That is what justice is.
If including the words "Fuck the CDA" in your signature line to a posting
on a Usenet newsgroup is conduct that is no different from having the
words "Fuck the Draft" embroidered on your jacket and wearing it in
public, then the same rule of law should apply.
If the signature line on your Usenet posting is materially different from
Cohen's jacket, then it is up to Congress, the Department of Justice, and
[President Bill] Clinton to articulate that difference. The definition of
"justice" requires the use of analogies.
Incidentally, I suspect that many supporters of section 502(2) of the
[Communications Decency Act] would argue that it does not prohibit one
from using the words "Fuck the CDA" in your Usenet signature line. They
would object, however, to a graphic, visual depiction of oral sex in your
signature line. Somehow, I gotta believe the Supreme Court would have had
a hard time acknowledging that Mr. Cohen had a First Amendment right to
paste a large, explicit photograph of such activity on -the back of his
jacket as he walked around the courthouse.