Decency Act Held Indecent
(C) Philip R. Green, 1997 All rights reserved.
The Communications Decency Act of 1996 was a bipartisan attempt to alter long standing Supreme Court decisions on the content of free speech. They can only fool some of the people some of the time...so it is in court. It was inevitable, where the First Amendment comes clashing with the Internet®*
The act (of 1934, as amended) purported to make it a federal crime to transmit patently offensive...sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication." 47 USCA 223 provides: "(a) Whoever--...in interstate or foreign communications--by means of a telecommunications device knowingly--uses an interactive computer service to send to a specific person or persons under 18 years of age, or... uses any interactive computer service to display in a manner available to a person under 18 years of age,...any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication;...shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."-- as if there is any clarity in the usage of local standards to determine "unprotected speech", a.k.a. "Obscenity". How, simply because of the interstate "transmission" (the word used in the Internet context is clearly wrong--it should be "interactive communication" ) it is a crime in Texas what may be acceptable or common place in California.
The Act was held to be "unconstitutional" by the United States District Court, Eastern District of Pennsylvania on .June 11, 1996. The U.S. District Court, sitting in a panel of three made a ruling that will be debated this year by the U.S. Supreme Court. The case was ACLU VS. RENO [929 F.Supp. 824 / 64 USLW 2794]. The thoughtful opinion was a mastery of legal wit and contains a deep understanding of what the state of the Internet is. "The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks," stated the opinion [at pg. 830]. There were analogies drawn and discussed, about how the WWW is maybe akin to broadcasting. The opinion states that Internet is also similar to print media because the online services and providers hold the information for some time, it is censored by some online services, and so may be read over a period of time and may be saved printed and distributed. It is similarly like a telephone call, both persons on the call exchange information, even some discuss sexual ideas. This is what makes it tough to regulate this medium of communication; it is protected by the First Amendment to the U.S. Constitution.
Generally, The spectrum of first amendment protection swings from little for "real" obscenity to mandatory court hearings for and highest respect accorded to news and print media. In this case, "...The Government's argument raises two issues: first is the question of which "community standards" apply in cyberspace, under the CDA; and second is the proposition that citizens should simply rely upon prosecutors to apply the statute constitutionally." The test for obscenity is: a [publication] is obscene if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the community where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors. If all three of these are "yes" then it is afforded less protection under the First Amendment.
The learned judge goes on to hold that the Internet is none of these, but a new way of communication and deserves to be analyzed in that light.
The conclusion left no doubt where this court stood: "I conclude inexorably from the foregoing that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults. ... it became evident that even if "indecent" is read as parallel to "patently offensive," the terms would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities (e.g., Leaving Las Vegas ) to controversial contemporary art and photographs showing sexual organs in positions that the government conceded would be patently offensive in some communities...."
The case is up on appeal to the U.S. Supreme Court. Since the issue involves a U.S. law, it will be considered and usually a good and well-reasoned opinion will be rendered. It is likely to be a carefully considered ruling. Do not expect an opinion much before October. Representatives of the "pornographic" industry and of groups representing all positions are watching this one.
*Internet is a registered Trademark of "InterNIC"