Update and Commentary on the Court Challenge to the Communications Decency Act
By Ben Gross
Danny Weitzner, Deputy Director at the Center for Democracy and Technology, moderated a roundtable discussion on the Communications Decency Act Thursday morning at CFP96. Discussion began with a basic question: Why is this important? Jill Lesser, Director of Media Projects for People for the American Way, said the debate is not about smut. It is about getting policy makers to understand how the network works. She said most of the politicians revealed the fact that they were not computer literate and some even flaunted it.
Bruce Taylor, President and General Counsel of the National Law Center for Families and Children, said he is looking forward to using CDA-related cases to educate people about the issues. Most Internet users do not understand the Act, just as the creators of the Act do not understand the Internet. He said the indecency standard does not refer to smut. It was designed to keep patently offensive material with no social value off the net. Congress is trying to keep the more mundane material that the average adult can buy away from children, he said. Parental controls are good, but they are not going to solve the problem.
Barry Steinhardt, Associate Director of the American Civil Liberties Union, said it is important to remember that the Act could be construed to be against average material considered offensive to some. The words in the legislation are vague in that they do not define indecent. Steinhardt also pointed out the abortion provision of the Act, which amends a turn-of-the-century law forbidding the distribution of birth control information (the Comstock Act) to prohibit distribution of such information electronically.
Lesser summarized the key legal issues in challenging the Act: whether or not indecency means anything to anyone on the Internet. The courts have said under certain circumstances that the goverment can restrict distribution of some materials. The issue is whether or not adults are able to get material free of restriction. The goverment should restrict material in the least restrictive manner, Lesser said. If the compelling state interest is keeping indecent material away from children, then the goverment restrictions are less effective than users' tools. Arming the users with filtering technology is a better way to do this, she said.
The way the Internet works indicates that there are much less restrictive ways of restricting materials. The Internet is not yet as pervasive as television -- there is a need to convey to judges that the Internet is much more like a bookstore than television, Lesser said.
Steinhardt said laws need to be clear enough so that normal people can understand them and obey them; the CDA is not at all clear. He said that most of his clients are internet service providers forced to either self-censor or risk prosecution.
Information about safe sex is an example of a murky situation for the CDA, Steinhardt said. The information is not simply cut and dry medical information. Facts and situations are described in graphic terms, in the vernacular, to best reach the intended audience of teenagers, but such descriptions may also be construed as indecent.
Taylor pointed out that Congress said serious treatments of sex and disease are not indecent, nor are serious literary works or works of art.
The panelists discussed censorship with respect to book stores, obscenity cases, and libraries as they apply to electronic communication.
Steinhardt said there is a great deal of debate on what is sufficient for limiting access. "Will service providers tag users to allow them to access to various materials?"
Miles Losch asks about a possible criminalization of authorship, where an author posts material which ends up moving though various networks and ends up in the hands of minors, even if the material was originally posted in a restricted environment.
Lesser said there is a definite possibility of criminalization of authorship. However, the statute said the material must be placed by someone knowing that the material might be seen by minors.
However, Taylor said their is no criminalization of authorship. George Carlin was not held liable for his infamous monologue; the radio station that played it in the middle of the afternoon was. The distributor is prosecuted, not necesarily the author.
[ CFP96 Newsletter | CFP96 | CFP | general info ]
Comments and bug reports to Daniel C. Stevenson