Nix to Exon

Senator Exon's Communications Decency Act
seeks to outlaw material online that is
already banned or protected.

by Mike Godwin

For Nebraska Senator Jim Exon, cyberspace is a dangerous place. So dangerous, in fact, that it's time for government to step in and make it safe for ordinary people. And to Exon, safety means controlling sexual content online.

Earlier this year, Senator Exon decided that the problem of sexual expression and foul language on the Net was so extreme that Congress should pass his Communications Decency Act, which would amend the federal obscene phone call statute to include all computer communications and bring the content of computer communications under the jurisdiction of the Federal Communications Commission. Exon's bill has since been folded into the larger Telecommunications Reform Bill of 1995, which deals mostly with deregulating the telecom industry.

Exon's concern about sexual content on the Net is based not on firsthand experience, but from newspaper accounts. Never mind that the great majority of Net users don't see this as a problem (for example, it's easy to avoid seeing sexual content online), and never mind that newspaper coverage tends to focus on online pornography because it makes good copy rather than because it's a pervasive problem. Senator Exon is ready to save us from ourselves, and he's perfectly willing to trample the Constitution in the process.

Politics of Indecency

Passage of the Exon bill would mean that sending "obscene, lewd, lascivious, filthy or indecent" content over the Net would be a crime. A problem with the bill is that, with the exception of a narrow class of material that qualifies legally as obscenity, such "indecent" content is protected by the First Amendment.

That there is a legal concept called "indecency" at all is largely attributable to the spotty record the FCC and the Supreme Court have established in protecting First Amendment interests in broadcasting. The problem is that the Court has been reluctant to extend the same freedom-of-expression guarantees to the broadcasting world that it has granted to the print media and speech. To be legally obscene, material has to appeal to "prurient interest," offend community standards, and so on.

The Supreme Court defined this standard more than two decades ago in Miller v. California, and while there have been many criticisms of the decision, it can also be said that the Court made clear that a lot of sexual content (material that doesn't appeal to prurient interest or material that has "serious" literary or artistic or social value) and profane language (see Cohen v. California, 1971) are protected by the First Amendment.

But the FCC has always been reluctant to cede its ability to control the content of broadcasting, and the agency and the Court have treated the airwaves as fundamentally different because the broadcasting spectrum is allegedly a scarce resource that must be allocated and regulated for the public good. As a result, material that could never be banned or regulated in the print or recording media (such as George Carlin's "Seven Dirty Words" monologue) may be regulated and restricted in broadcast programming.

In addition to the "scarcity" argument, there's a ruling concerning the "pervasiveness" of broadcasting content. The danger is that when you turn on your TV or radio, programming floods into your home before you can make a decision about whether you want to see it. Nonobscene material that deals explicitly with sex or that uses profane language can still be regulated by the FCC in the interest of protecting children from a pervasive medium, which the Court ruled in FCC v. Pacifica Foundation (a 1978 case that involved a broadcast of the Carlin monologue). Such material, which the Court has classified as "indecent," is still constitutionally protected and can't be banned altogether. But the FCC can step in and say when such material can be broadcast.

Up to now, the nicest thing you could say about FCC indecency restrictions was that they were limited to broadcasting and weren't absolute bans. True, various policymakers have attempted to expand the limits on indecency from time to time. Senator Jesse Helms, for example, attempted in 1990 to ban "indecency" from broadcasting altogether, but his efforts were struck down by a federal appeals court that held that banning indecent speech violated the First Amendment.

Still another attempt to ban indecency (this time involving dial-in phone sex services) was struck down by the Supreme Court in 1989 in Sable Communications v. FCC. The Court held that while a ban on obscenity in "dial-a-porn" services was Constitutional, a ban on indecency was not. Citing earlier holdings, the Court said "the government may not reduce the adult population to only what is fit for children." Just as important, the Court said there were less restrictive means for protecting children from indecent content, such as using various methods to verify customers' ages and deny services to minors.

A Closer Look

But all of this legal history is lost on Senator Exon. His bill would ban online "indecency" outright, and it's worth asking why the senator cares so little about the First Amendment jurisprudence in this area. There seem to be four possible explanations, any or all of which may be true:

Senator Exon has little or no direct experience with online communications. He proposed amending the obscene phone call statute (which also regulates phone sex services) to include online communications because he imagined there was some kind of strong similarity between the two media. But obscene phone calls are intrusive and harassing in a way that e-mail (and certainly public postings) can never be. You can't ignore a harassing phone call like you can e-mail, and even if someone really wants to harass you, e-mail doesn't guarantee the kind of instant feedback as does a harassing or obscene phone. For most people it's not a problem. For people who do get abusive e-mail, there are a couple of easy solutions: You can filter the offending mail out of your mail queue or (my favorite) publish the abusive e-mail to the Net.

What's more, the news stories that Exon or his staff have been reading don't involve harassing e-mail at all. For the most part, they deal with the availability of sexual material online that minors may voluntarily seek out-not with unwanted, assaultive exposure to such materials. In that sense, the online world is slightly more like phone sex services, but even the dial-a-porn entrepreneurs are protected by the Constitution when they're selling merely indecent material.

Senator Exon doesn't know that distributing obscene material over the Net is already prohibited by federal law. Some members of a lobbying group, the Center for Democracy and Technology, tried to explain to the Exon aide who's in charge of the bill that the transmission of such material over the Net already is illegal under 18 USC 1465. The aide seemed surprised to hear this. After all, isn't obscenity on the Net a big problem?

The senator doesn't know that you can't ban indecency. For all that folks complain about Congress's being dominated by lawyers, it's often the case that lawmakers and their aides don't know the law or the Constitution. The cases construing the powers and authority of the FCC are often complicated, and you don't hear much about them in the everyday work of Congress. It's always possible that Exon simply read the phone sex statute and decided to tack on language about electronic communications, without any awareness of how the statute had been construed and limited by the courts.

The senator simply doesn't understand what distinguishes computer communications as a medium. While the Supreme Court has held that a medium's scarcity and pervasivenes scan justify content regulation, it's clear that Internet communications aren't scarce in the broadcasting sense (you increase the size of the Net every time you connect another computer to the network), and not pervasive in the radio and TV sense (broadcasters push content at audiences, while Internet users pull content to their home systems).

A Better Model

Not that Senator Exon's lack of knowledge regarding online media has made his amendment less likely to pass. In Congress, few members have the guts to oppose a bill like Exon's and risk being condemned for favoring obscenity and indecency.

But at least one senator is a happy exception to this general rule. Patrick Leahy of Vermont has proposed a substitute for Exon's bill that has the right idea. Senator Leahy, who calls his alternative the "Child Protection, User Empowerment, and Free Expression in Interactive Media Study Bill" (S. 714), wants to direct the departments of Justice and Commerce to study technical means by which users can be empowered to control the information they receive from the Internet and commercial and noncommercial online services. Senator Leahy's bill is cosponsored by Bob Kerry of Nebraska, with the ironic effect of putting Nebraska's two Democratic senators on opposite sides of the issue.

The Leahy bill is a model of intelligence and sensibility. Its four provisions manifest exactly the kind of "look before you leap" approach that would do Senator Exon a world of good to adopt. The bill calls for the following:

(1) an evaluation of whether current criminal laws governing the distribution of obscenity over computer networks and the creation and distribution of child pornography by means of computers are fully enforceable in interactive media;

(2) an assessment of the Federal, State, and local law enforcement resources that are currently available to enforce those laws

(3) an evaluation of the technical means available to (A) enable parents to exercise control over the information that their children receive and enable other users to exercise control over the commercial and noncommercial information that they receive over interactive telecommunications systems so that they may avoid violent, sexually explicit, harassing, offensive, or otherwise unwanted material; and (B) promote the free flow of information, consistent with Constitutional values, in interactive media; and

(4) recommendations to encourage the development and deployment of technical means, including hardware and software, to enable parents to exercise control over the information that their children receive and enable other users to exercise control over the information that they receive over interactive telecommunications systems so that they may avoid harassing, violent, sexually explicit, offensive, or otherwise unwanted material.

The Leahy bill reflects a basic truth about the Internet: that it's far more effective to empower users to protect themselves than it is to attempt to impose a top-down model of governmental regulation. The radically decentralized Internet was designed to survive a nuclear attack, and it interprets an attempt at censorship as damage and routs around it. In an era in which we're suspicious of the effectiveness of government, the last thing we want to see is another attempt by Washington to micromanage the content of our everyday lives on the Net. A better fix is to make sure we can take care of ourselves and our children.

What's more, the Leahy bill flies in the face of the prevailing willingness of policymakers at both the state and federal levels to see the Internet primarily as a threat. Historically, governments have always been frightened by new media-from the printing press to the telephone to the radio to the movies-and they've always felt the impulse to regulate them. Up to now, the United States has resisted that impulse for the most part, with only broadcasting being significantly regulated. Now that computer communications is demonstrating for us the greatest experiment in freedom of expression the world has ever seen, it would be a tragedy if Exon's bill or similar measures made the same mistakes with the Net that have been made with broadcasting.

And if there is going to be regulation of the Net, panic over sexual content should not be the basis of it. Exon likes to justify his bill in terms of "protecting the children," even though he has acknowledged that the bill probably won't have that effect because anyone clever enough to use computers may figure out ways to sidestep the law.

This is not to say that the law would have no effect at all. Even though it would not eliminate all sexual content on the Internet, it would scare some people and arbitrarily punish others. And the last thing this country needs is a law that would make it even riskier to write a love letter.

Mike Godwin is staff counsel of the Electronic Frontier Foundation, a public interest civil liberties organization based in Washington, D.C.

This article is from the August 1995 issue of Internet World.

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