Congress vs Internet
It’s a dark and stormy night. Thunder rolls in the distance as you check your internet e-mail… when all of a sudden, jack-booted internet cops break down your door and whisk you off to jail in a Web-Wagon. Fiction? Maybe. But if the Communications Decency Act of 1995 goes into effect, this nightmare may become all too real.
The Communications Decency Act of 1995 was passed in the U.S. Senate on June 14 by an 86 to 16 vote. The bill proposes to outlaw the use of computers and mobile lines to transmit objectionable material, a category of speech that the Supreme Court has held to be protected by the First Amendment. (More on that later) The measure would impose jail terms and fines on anyone who uses a “telecommunications facility” (presumably both telephones and computers) to transmit any obscene information or image, or any indecent information or image to a person under the age of 18. Specifically, the bill prohibits the transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person”.
You might be saying at this point: “I thought the PCJ was a family publication… how could it or its writers be against decency?” Keep in mind, though, it's not a matter of being against decency — its a matter of being against unenforceable laws that violate clear Supreme Court precedent.
The author of the Decency Act, Senator James Exon (D-Neb.), said that he was concerned that the Information Superhighway was in danger of becoming an electronic “red light district” and that he wanted to bar his granddaughter's access to unsuitable information. He went on to say, “The information Superhighway is… a revolution that in years to come will transcend newspapers, radio, and television as an information source. Therefore, I think this is the time to put some restrictions or guidelines on it.” This bill, much like fat-free ice cream, looks better than it tastes.
SUPREME COURT PRECEDENT
The U.S. Supreme Court has consistently held that the First Amendment does not apply to obscene speech. However, the Court has gone out of its way to hold that the government cannot punish speech if it has even minimal value and that full due process protections must be applied. In 1973, in Miller v. California, the Supreme Court defined obscenity as being limited to “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which… do not have any serious literary, artistic, political, or scientific value.” The Decency Act specifically mentions obscene material which, under the Supreme Court standards, is acceptable to regulate or eliminate. The greatest problem lies with the remainder of the provision which lists other “banned” communications. Speech which is intended to annoy or harass is also banned. This would presumably include sharp or pointed political debate. A person may feel offended or even degraded after listening to Rush Limbaugh, but is the Limbaugh website protected by the First Amendment? Certainly. Taken to its logical extreme, the Decency Act would also ban one of the most popular usenet groups on the net — the “Wesley.Crusher.die.die.die” site, which lists new and interesting ways to kill Wesley Crusher (watch Star Trek: The Next Generation, and you'll understand).
In 1957, in Roth v. United States, the Court held that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the (First Amendment) guarantees.” If you have ever watched C-Span, you have no doubt noticed that many of the members of Congress make speeches in response to positions taken by other members of Congress. According to the language of the Decency Act, even this speech might be illegal if it is intended to harass or annoy the political opposition.
WHAT DOES OBSCENE MEAN?
In the Miller decision, the Supreme Court acknowledged its problem with attempting to define obscene, as opposed to offensive or indecent speech. After reviewing the “somewhat tortured history of the Court's obscenity decisions,” the Miller Court stated that “People in different states vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.” As a result, there cannot be “fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive’.” Chief Justice Warren Burger emphasized that “our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 states in a single formulation”.
Chief Justice Burger articulated the exact problem we face today — the Decency Act attempts to set a national standard for all decency, even though every city and county may have a different standard of acceptability. The First Amendment does not require that the people of Maine or Missouri accept public depiction of conduct found tolerable in Las Vegas or New York City. However, as cited by the Supreme Court in Miller, community reactions in rural areas should not dictate what is acceptable in urban centers.
There are now commercial programs available that allow parents to restrict the type of information accessible to their children. Online services such as Prodigy and America Online already provide software tools that allow parents to control their children's access.
No reasonable person is in favor of promoting obscene material. Rather, the question is who is in the best position to monitor and regulate this material — a congressman in Washington D.C. or parents in the next room. The idea of personal responsibility must be considered before looking to the Federal Government for help. Parents should take responsibility for monitoring their children's computer activity — without the necessity of enacting laws that are probably unenforceable and certainly unconstitutional.