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IP: Cato Institute paper on Net-speech regulation, by
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 18 Nov 1996 07:52:14 -0500
X-Received: (from majordomo@localhost) by vorlon.mit.edu (8.8.2/8.8.2) id WAA26063 for fight-censorship-announce-outgoing; Sun, 17 Nov 1996 22:39:14 -0500 Date: Sun, 17 Nov 1996 19:38:42 -0800 (PST) From: Declan McCullagh <declan () well com> [Among other things, Solveig's paper talks about the "harmful to minors" standard in a future CDA that we've discussed before and I wrote about in June: http://www.hotwired.com/netizen/96/24/declan4a.html --Declan] --------------- http://www.cato.org/pubs/pas/pa-262es.html Cato Policy Analysis No. 262 November 4, 1996 BEYOND THE COMMUNICATIONS DECENCY ACT: CONSTITUTIONAL LESSONS OF THE INTERNET by Solveig Bernstein (sberns () cato org) Solveig Bernstein is assistant director of telecommunications and technology studies at the Cato Institute. _________________________________________________________________ Executive Summary On February 8, 1996, the Communications Decency Act was enacted into law. The law criminalizes the use of any computer network to display "indecent" material, unless the content provider uses an "effective" method to restrict access to that material to anyone under the age of 18. But there is no affordable, effective way for nonprofit or low-profit speakers to restrict children's access to such a broad, ill-defined category of material. Thus, the statute effectively bans much speech from the Internet and other networks. The Internet promised the ordinary citizen a low-cost method of reaching an audience beyond immediate family, friends, and neighbors. Legislation like the CDA betrays that hope and is clearly unconstitutional. No regulation of computer network indecency, however carefully tailored, should pass constitutional scrutiny. First, no legislator has been able to define indecency coherently. Such regulation is inherently unfair, especially as applied to spontaneous, casual speech of the sort that the Internet facilitates between unsophisticated and noncommercial speakers. Second, government cannot legitimately claim that it has any interest in content control, when civil society has solved the perceived problem on its own. Here, private sector solutions include both software filters that parents can use to screen out offensive material and Internet service providers who provide access only to child-safe materials. [...] Why Indecency on Computer Networks Should Not Be Censored One can be certain, however, that the censors will not give up. If the CDA ultimately is declared unconstitutional, the censors will try to craft new legislation along similar lines. Possible Alternatives to the CDA Legislation somewhat less broad than the CDA would cover only material that is "harmful to minors." This option would essentially still ban much amateur speech because of the technical and economic difficulties of restricting access. More sophisticated plans have also been suggested. Use of site rating labels could be added to the available defenses (which would in effect make labeling of sexually explicit sites mandatory) to ease this problem somewhat. Labels can be used to rate newsgroups, Web sites, and content posted on online networks. Eugene Volokh of the University of California Los Angeles Law School has suggested that governments could require all content providers to rate their own sites. [77] Parents could then buy software filters that would reject adult-rated content. In defending the CDA, the Department of Justice crafted a similar argument. Under one proposal supported by the Department of Justice, all "indecent" materials would be tagged "L18," for "not less than 18." At the first CDA hearing in Philadelphia, the Department of Justice explained that computer network users would be registered as "adults" or "minors," and that information would be encoded in their online personas. Network servers (the computers on which content is stored) would be customized to deny minors access to Web sites tagged "L18." [78] The proposal would require all Internet service providers to reprogram a substantial number of their servers. The CDA does not require Internet service providers to undertake any such project; generally, only those that control content are liable under the law. Thus, the argument that the L18/server scheme could alleviate the burdens of the CDA on speakers was essentially absurd, as Judge Sloviter noted. [79] Additionally, courts have recognized that advanced speaker registration requirements stifle the spontaneity of free expression. [80] And advanced registration would threaten the existence of electronic forums operated for the benefit of those most anxious to protect their identity, such as victims of sexual abuse. [81] Finally, the suggestion that servers be restructured is eerily reminiscent of the Singapore government's insistence that Internet communications be routed through "proxy servers" to facilitate intensive political censorship. By the second CDA hearing, the government had apparently abandoned the server/registration approach to tagging, and explained that the tags could work with filtering software controlled by the end user. But that would not satisfy the CDA's effectiveness requirement, as Judge Cabranes noted, because many parents do not use filtering software; the Department of Justice's assertions at the hearing that it would not prosecute labeled sites were not binding on any prosecutor. [82] As a defense of the CDA, both incarnations of the L18 scheme failed. But they might suggest a direction for future legislative efforts. Any form of mandatory labeling, however, is objectionable for several reasons. First, it is compelled speech, which should not be constitutionally permissible. [83] It would place an extraordinary burden on entities with large collections of works, such as libraries. [84] It would be oppressive to expect such labels to be applied to casual or intimate speech, such as statements in chat rooms, private e-mail, or individual newsgroup or bulletin board postings. For spontaneous computer speech, mandatory tagging would be the equivalent of requiring the labeling of conversations around a backyard barbecue. Second, mandatory labeling as unsophisticated as the L18 scheme proposed by the Department of Justice would prevent older children from accessing information about reproduction, art, and other topics, or from contributing to discussions of those topics. Minors, too, have free speech rights. Sixteen-year-olds should not be restricted to viewing what is fit for six-year-olds. Third, because there is so much content on computer networks, the only practically feasible kind of universal labeling scheme would require content providers to rate their own material. A substantial number of amateur or casual speakers would, out of an excess of caution or as an act of civil disobedience, deliberately give their sites a more or less restrictive label than the law requires. Libraries might be forced to slap an "adult" label on their entire collection, because they could not afford to rate all their content. There are so many thousands of communications traveling over computer networks every day that only a very small proportion of the labels would be checked by third parties. Thus, ironically, a mandatory labeling regime is more likely than voluntary labeling to be substantially inaccurate and unhelpful to parents. Under the market-driven voluntary systems that will work with the new rating standards known as PICS (Platform for Internet Content Selection), unrated sites can be blocked automatically by filter software; a greater proportion of those fewer sites that are rated can be checked by private ratings groups. Only voluntary rating would be consistently undertaken with care. The Fallacy Motivating the Search for CDA Alternatives Proposing any legislative alternative to the CDA makes a fundamental error: such proposals assume that government has constitutional authority to regulate nonobscene sexually explicit computer network speech. Judge Dalzell identified this as the central issue at the hearings concerning the constitutionality of the CDA, stating that: from the Supreme Court's many decisions regulating different media differently, I conclude that we cannot simply assume that the Government has the power to regulate protected speech over the Internet....Rather, we must decide the validity of the underlying assumption as well, to wit, whether the Government has the power to regulate protected speech at all. [85] The analysis below shows that this assumption is not valid. Even if we assume that the precedents that allow the government to regulate nonobscene sexual speech on other media are correct, these precedents do not supply any convincing rationale for regulation of computer networks. Communication over computer networks does not raise entirely new constitutional issues. But it raises two particularly important issues in such a way that they cannot be avoided. First, computer networks empower millions of ordinary citizens to become speakers. As censorship laws are enforced, the court's failure to coherently define categories of forbidden talk about sex will look more and more obviously unjust and arbitrary. Second, the power of the private sector to offer alternatives to censorship erodes arguments that government has any legitimate interest in this problem. Without a constitutionally cognizable interest in imposing the regulation, government cannot act. These are both sound reasons to believe that indecency (or its cousin, material that is "harmful to minors") on computer networks cannot constitutionally be regulated at all. First Amendment jurisprudence must evolve to address these issues or become divorced from the reality of the marketplace of ideas. Defining Forbidden Speech Unwilling to rule that government simply may not censor any speech, the Supreme Court has struggled to distinguish between speech about sex that may be censored, and speech that may not be. Early on, the Court decided that obscene speech was not entitled to First Amendment protection. But what was obscene? The Court's attempts to define this category coherently have important implications for regulation of indecency or material that is "harmful to minors" on computer networks. This is not because obscenity and indecency are the same thing. Whatever is obscene is almost certainly indecent; a wide range of material that is indecent is not obscene. But our judgments about what is obscene and what is indecent are closely tied to subjective moral judgments. If the Court cannot define one category coherently, it is unlikely to make much headway with the other. Nor is it likely to make headway with the in-between category of "harmful to minors." For years, the Supreme Court struggled to create a national definition of obscenity. It failed. At bottom, the question of what is "obscene" is a matter of taste. No power in the world can convert a subjective question into an objective one, even by abstracting from the myriad subjective tastes of members of a national community. Under the "national" approach, ultimately, a work was obscene if it offended enough Justices of the Supreme Court. This was evidenced by hilarious yet deeply troubling statements such as that of Justice Potter Stewart, who, in attempting to define hard-core pornography declared, "I know it when I see it." [86] In 1963, Chief Justice Earl Warren stated, "I believe there is no provable 'national standard.'" [87] Still later, in abandoning the national standard, the Court explained: it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. People in different states vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. [88] Similarly, the FCC has failed to craft a coherent national standard of broadcast indecency. According to the FCC, broadcast indecency is to be judged according to the tastes of the "average broadcast viewer." But who is this "average" viewer? In a country with local standards as diverse as those of San Francisco or Iowa, there can be no such animal. The national standard boils down to what offends the FCC. Insofar as interpreters of the CDA are directed by the legislative history to craft a national indecency standard, they will be no more successful than the FCC. The early print media precedents are no more helpful. It is possible for any court to string together words in an important sounding way, crafting phrases such as "prurient interest," or a mythical national consensus, and claim to have created a uniform definition of indecency. What it will have done, in effect, is to impose its tastes on the rest of the nation. Nor can the Court resolve the problem by referring to a hypothetical "average" computer network user. A First Amendment that protected only "average" speech would provide little or no protection at all to unpopular minorities. Part of the reason that computer networks are special is that they empower an extraordinary range of speakers from diverse communities. The tastes of the "average" user are thus not only hard to identify, but should be of no relevance. If there cannot be a national standard for forbidden speech about sex on computer networks, can there be local standards? The Supreme Court allowed states to adopt community standards to alleviate the embarrassment of its failure to craft a national obscenity standard for the print media. [89] The question of what was obscene was largely left to local juries. [90] But some members of the Court long resisted adopting a local community standard, for good reason. Justice William Brennan argued that the local community standard could not serve as a constitutional standard: We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution....It would be a hardy person who would sell a book or exhibit a film anywhere in the land after this Court had sustained the judgment of one "community" holding it to be outside the constitutional protection. [91] His fear was that an adverse judgment in a few restrictive local communities would chill the national distribution of speech. The Supreme Court has since flatly refused to recognize the constitutional dimensions of this problem. In one case, the Court considered a dial-a-porn operator's argument that Congress could not force it to tailor its messages to the least restrictive community, because such a requirement in effect created a national standard of obscenity. The Court explained, "While Sable [the operator] may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages." [92] Computer networks will raise this issue again, this time with a vengeance. The impact of the law will be felt, not by the narrow, unpopular community of professional pornographers, but by ordinary citizens able to reach a wide audience for the first time. The local standard will not suffice in any country that takes free speech seriously. If the national standard is inherently incoherent, and the local standard inherently unfair, what is the Court to do? The answer is that the Court should admit that government, especially the federal government, has no place regulating the display of sexual imagery in cyberspace, especially if it is neither obscene nor categorized as child pornography. If it cannot be done consistent with the Constitution, it should not be done. But will this mean that the United States' children are to be exposed to a never-ending stream of sexually explicit images? It will not mean that at all. And the dispute surrounding the constitutionality of the CDA is the perfect opportunity for the Court to make this clear. Market Alternatives Erode the Government Interest The Supreme Court's indecency jurisprudence requires that a statute choose the least restrictive means to serve a compelling state interest. The Court's accumulated indecency cases, however, do not make clear what that interest is. It is either government's interest in helping parents protect their children, or an independent interest of government in protecting the children themselves. [93] The analysis below shows that the latter interest cannot be viewed as constitutionally compelling. And, where computer networks are concerned, parents are capable of taking care of their own children. With computer networks, government's interest falls away. An Interest in Helping Parents. The Supreme Court has described the government's interest in regulating indecency as an interest in helping parents supervise their children--not in protecting children from indecency when their parents believe the materials in question would do their children no harm: Constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.... The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility...the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children [emphasis added]. [94] It is not rational to argue, however, that government can have a compelling interest in helping concerned parents when concerned parents do not need help. Government should not be able to argue that it has a compelling solution to a problem that has effective private solutions. Computer networks offer an excellent private solution to parents who want to protect their children from indecency, but who do not want to deny access to online services altogether. As with any media, parents can control their child's access to computerized indecency by exercising a little sense. Some parents, for example, do not allow their children access to online services in the privacy of their own rooms; access is available only by means of a computer in the family room, where anyone walking by can see what is on the screen. [...] An Independent Interest in Protecting Children? Perhaps government could claim a compelling interest in protecting unsupervised children, children whose parents do not purchase or use filtering software? Justice Stephen Breyer, writing for the plurality in Denver Area Educational Telecommunications Consortium v. FCC, a case involving the constitutionality of restrictions on the transmission of indecent material over cable television, restates that protection of children is a compelling or at least important interest, and suggests, without further analysis, that such interest allows the federal government to intervene to protect children of "inattentive" parents. [125] There are substantial reasons to believe that protecting children from a danger that the childrens' parents do not recognize as particularly grave should not amount to a compelling interest. As pointed out above, filtering software is affordable to anyone who can afford a computer system. Nonsupervising parents have implicitly decided that exposure to material of a sexual nature probably will not harm their children enough to bother with. If the parents do not find the interest sufficiently compelling to take action, there is no reason to think that government should. Indeed, there may be parents who believe that their children should be exposed to materials that might be considered indecent, including information about disease prevention, birth control, reproduction, works of literature and art, and so on. Government's claim of an independent interest in restricting indecency contradicts government's claim of an interest in helping parents control their children's education. [126] If government did have an independent compelling interest in keeping children from viewing all sexually explicit or vulgar material, it could pass a law that parents must lock all the indecent materials in their home (Playboy, romance novels, Lady Chatterley's Lover) in special safes to ensure that their children never access it. Or that parents must use software filters to prevent teenagers from using the Internet to read about sex. Imagine police searching through private residences to enforce this law. The reaction would be public outrage. In short, when it comes down to it, there is nothing compelling about government's alleged interest in protecting children from indecency. In this context, we recognize that parents have the right and responsibility to make decisions about such matters for themselves. So why do we pretend that the interest becomes compelling when the burden of complying with the law is placed on someone other than the parents? We pretend it because we place the burden of complying with the law on unpopular speakers--pornographers, purveyors of smut. The application of indecency laws to computer networks will throw the issue into stark relief. First, under the CDA, it is possible that parents and teachers could be prosecuted for allowing children in their charge to use computers to access material that the parents believe the child is mature enough to handle. Second, the easy availability of private solutions for parents who are concerned about indecency makes it obvious that the CDA is nothing but a convenience for parents who will not take the trouble to supervise their children--not a compelling problem that the government must step in to solve. Private solutions might not always be available to solve "indecency problems." On public property, for example, which everyone must access from time to time, one faces more difficult questions. But computer networks are not public parks. They are sophisticated user-controlled private spaces. And private solutions clearly should be part of the constitutional analysis. [...] -------------------------------------------------------------------------- To subscribe to the moderated fight-censorship-announce list, send "subscribe fight-censorship-announce" to majordomo () vorlon mit edu. More information is at http://www.eff.org/~declan/fc/
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