First Amendment rights to be bulldozed off Infobahn?
THE INTERNET, as any user knows, links millions of computers. Through it, universities, libraries, publishers, organizations, and individuals share information almost instantaneously. Yet, from recent sensationalized stories (see "Cyberporn study: more heat than light?" in Metanews, Fall 1995) a reasonable adult with no exposure to the Net could infer that it is less a gateway to information than a virtual XXX-rated theater.
Such sensationalism was exactly what Sen. James Exon (D-Neb.) needed to pressure colleagues into supporting his pet amendment to the new Telecommunications Bill, the Communications Decency Act (CDA). Touted as a way to protect minors from all those purported online pornographers and pedophiles, the CDA was signed into law Feb. 8, 1996, by President Clinton.
Steven Shapiro, national legal director of the American Civil Liberties Union and an adjunct professor at Columbia Law School, warns that the CDA is not what it seems. "What's really important for people to understand is that this is not a law that regulates obscenity," says Shapiro. "There are already laws out there that nobody is challenging that prohibit the use of the computer to send obscenity." Instead, the CDA bans what is "indecent" or "patently offensive" from the Internet, an additional universe of material that is not legally obscene.
"One of the problems here is that nobody knows what 'indecent' means," Shapiro says. An ACLU lawsuit challenging the CDA (ACLU v. Reno), filed on behalf of several organizations including the American Library Association and Planned Parenthood, is under way in Philadelphia at this writing. "Among the clients that we have are people who, for example, run AIDS hotlines for teen-agers and talk about AIDS in a way that people might regard as indecent," says Shapiro, "but that we think is, in fact, valuable information for students to have."
Which side prevails--appeals are expected all the way to the Supreme Court--depends on whether the court decides the Net is more like print media and postal mail, which are protected forms of communication, or like broadcast television, which is regulated by the Federal Communications Commission. "The problem is that it's not a broadcast medium," argues John Perry Barlow, cofounder of the Electronic Frontier Foundation, a nonprofit organization focused on protecting individual rights in cyberspace. "It makes as much sense as trying to apply the standards you would apply to television to conversations in the back room of a bar."
What might be banned under the CDA? While its wording is vague, it seems to outlaw anything from four-letter expletives to certain types of educational and research materials. If a peer-reviewed article about impotence research were downloaded into a community where, for instance, the Christian Coalition had a strong foothold, it would be judged by that community's standards of decency, regardless of where it was uploaded. Worse, it would be judged according to whether community members thought such a paper was appropriate for a 6-year-old.
Shapiro says the law "threatens to reduce the entire Internet to only material that is fit for children to read. That's No. 1. No. 2 is it makes an assumption about what is fit even for children." Those most immediately concerned with children's well-being already have options: The month before the CDA was signed into law, PICS (Platform for Internet Content Control) software became available that lets parents block access to Internet sites they object to.
Many believe it isn't just children whose access CDA proponents are trying to block. Eben Moglen, former law clerk for Justice Thurgood Marshall and professor of law and legal history at Columbia Law School, sees the hand of the Christian right at work, attempting to impose social controls. "They're right to believe that, to some extent, their old tired morality is under some degree of threat," he says. He sees them trying to "convert the First Amendment into something else" to preserve that concept of morality.
Barlow of the EFF worries that the law's most damaging effect will be self-censorship, particularly among members of the research community. "Liberty lies in its exercise," says Barlow. "I think people are going to self-regulate in ways that will be very, very harmful to the long-term sense of trust and also openness on the Net."
Considering that the CDA attacks democracy's fundamental freedoms of press and speech, it should have instigated a counterattack from the Fourth Estate. But according to cyberspace commentators, the print and broadcast media have barely acknowledged either the law or the battle to overturn it. Barlow claims that most people know nothing about the CDA and calls key players in the major media "irresponsible" for covering it so lightly. Case in point: A threepage article in Newsweek on the new telecom bill ("Now for the Free-for-All," Feb. 12, 1996) hardly mentions the CDA. In a sidebar, the magazine comments only that "People who make indecent material available to minors will now face criminal penalties." Not until the end of the article does it briefly note the court challenge in progress on constitutional grounds.
In fact, with the exception of The New York Times and the wire services, none of the major print media surveyed covered the CDA in its own right. Instead, information about it was buried within larger pieces about the telecom bill in general, concerns about the effects and effectiveness of the V-chip in particular, and speculation about the economic ramifications of telephone and cable deregulation. Network newscasts did no better. NBC addressed cybercensorship but did so in a larger segment on "Internet Abuse" (Feb. 2), hyping the variety of "dangerous" information available online. Of the three networks, only ABC (Feb. 8) reported in any depth on the threat to constitutional freedoms.
Shapiro, more concerned about misrepresentation than about lack of coverage, is "distressed by the frequency with which the word 'smut' is used in headlines." A prime example: Peter Lewis' otherwise balanced piece in the Times (Feb. 16) about the act's vague wording and "chilling effect on free speech" appeared under the misleading heading "Judge Blocks Law on Internet Smut." A generally evenhanded report from Reuters focused on First Amendment issues but ran under the unfortunate title "Cybersmut Suit Presages Future" (March 22).
Also largely ignored is that the CDA is not the only provision in the telecom bill to muzzle speech. An amendment added to the bill by Rep. Henry J. Hyde (R-Ill.) prohibits disseminating information about abortion via the Internet. Although it is the bill's most blatantly unconstitutional provisionand one of immediate concern to the research community, a bizarre twist leaves it unchallenged. The judges hearing the current lawsuit have said the ban on abortion-related speech is so clearly unconstitutional the court doesn't need to address it; the Clinton administration has vowed not to prosecute anyone for breaking this provision.
The catch? Unless the courts strike it down, the law remains on the books. Those who violate it won't be prosecuted under this administration, but a new president coming to power--as early as 1997--may find it politically feasible to placate the Christian right.
An institution placing a paper about mifepristone (RU-486) into its database today, for example, risks later prosecution. Although a favorable outcome seems ensured, the legal process could be long and costly. That alone makes the temptation to selfcensor powerful. Which, of course, may be exactly what the architects of this law had in mind.
-- Anita Bartholomew
Related links with more information on the CDA, which, after this article was written, was found unconstitutional by unanimous decision of the Federal judges in Philadelphia:
Statement by the Electronic Frontier Foundation
The Center for Democracy and Technology
Electronic Privacy Information Center
Up Yours Congress
First Amendment Cyber-Tribune
Follow the link in this image for reactions to the decision by the Voters Telecommunications Watch.
ANITA BARTHOLOMEW writes about science, technology, medicine, and electronic media. Her work has appeared in Omni, Computer Pictures, Woman's Day, and other publications.
PHOTO CREDIT: Jonathan Smith.