IP: TIME on Net Censorship

[Dave Farber <farber () central cis upenn edu>]

MUZZLING THE INTERNET


Can this Congress find a way to preserve civil liberties while curbing
cyberporn? So far, no


BY JULIAN DIBBELL


Pornography in cyberspace? Sure, it's out there, although there is not as
much of the hard-core stuff as most people seem to think. But what you can
find if you look for it is enough to give thoughtful parents pause before
letting their children roam freely on the Internet. It's also enough,
evidently, to ensure congressional passage of a bill that would impose
fines as high as $100,000 and prison sentences of up to two years on anyone
who knowingly exposes minors to "indecency" online. It may even be enough
to make the proposed legislation seem, at first glance, like a fair and
reasonable approach.


But a closer look at the measure--all but approved last week by a
conference committee in the rush to pass the giant
telecommunications-reform bill before Christmas--suggests it may be a
bigger problem than the one it aims to solve. For one thing, it does little
about the kind of sexual material that has stirred up the strongest public
anxieties (images of bestiality, pedophilia and the like). Such material is
already flatly banned by federal statutes on obscenity and child
pornography. The Justice Department has made it clear that it has all the
laws it needs to police the Net for child molesters.


What is new in the bill is the idea of criminalizing the online
transmission of words and images that may fall short of the Supreme Court
tests of obscenity (lacking literary merit, violating community standards,
etc.), but that someone, somewhere in cyberspace might find offensive.


The key word is indecency. Free speech, even indecent speech, is guaranteed
by the First Amendment. The right of Americans to say and write what they
please, in whatever way they please, has been affirmed by a long series of
judicial decisions. The courts have also ruled, however, that in broadcast
media like radio and TV, some forms of expression (George Carlin's famous
seven dirty words, for example) may be unsuitable for part or all of the
broadcast day.


The courts have not yet ruled on whether the Internet is a print medium
like a newspaper, protected from government censorship, or a broadcast
medium like TV, whose content is closely regulated by the Federal
Communications Commission. Thoughtful members of Congress, led by
Washington Republican Rick White, had sought to clarify the matter. A
compromise proposed by White would have ruled out FCC oversight of the
Internet; it also would have replaced the problematic word indecency with
the phrase harmful to minors, a more narrowly defined standard that keeps
magazines like Penthouse shrink-wrapped in convenience stores.


Early last week, it looked as if White's sensible alternative would
prevail. But conservative groups, led by the Christian Coalition, lobbied
hard for a tougher measure. And on Wednesday, in a 40-minute closed-door
session, the conferees voted 17 to 16 to reinstate indecency.


That vote may yet come to naught. President Clinton has already threatened
to veto the bill for other reasons. The American Civil Liberties Union has
promised to mount vigorous challenges should the bill become law, and many
experts believe the Supreme Court would find such a law unconstitutional.
The Congressmen who took a public stand against online indecency may have
known that it would not survive a court test. But they had a chance last
week to show that they understood how to apply civil rights to new media,
and they failed.


With reporting by John F. Dickerson/Washington




Copyright 1995 Time Inc. All rights reserved.