JDI IN THE NEWS - ARCHIVED

Indecent Exposure on the Internet, New Jersey Law Journal, February 26, 1996.  

The Telecommunications 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 Philadelphia 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 with the Law Journal.  

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? Pacifica 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 Court was clueless is not an answer, or at least not a lawyer's answer.)  

Theodore Frank: While the Pacifica Court 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 Court 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 www.eff.org.  

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 content?  

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 instead."  

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, the United States 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, how?  

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 the Pacifica 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.  

Remember, Pacifica 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 cyberHustler 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 online.  

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 you-name-it.

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 undercut Cohen 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 Pacifica 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 Telecommunications Act.

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 worthwhile?

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.