Suitable is Unconstitutional

Free Speech on the Internet

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Historical eras are often defined by the technological advances made during that time period. In American culture, the different decades of the twentieth century are each remembered by their discoveries in technology. The 1950's are defined by television breakthroughs like Leave it to Beaver, Mister Ed, and Elvis Presley's appearance on The Ed Sullivan Show. Louis Armstrong's 1969 walk on the moon epitomized the 1960's space travel race against the Russians. And in the 1970's, George Lucas's Star Wars, Steven Spielberg's Jaws, and Richard Donner's Superman reinvented the special effects used in the motion picture industry. Try to picture life today without the advances of the eighties, such as answering machines, call-waiting, fax machines, cable television, and video cassette recorders. Along with each type of communication came the government's attempts to censor the information passed through them. The government takes it upon themselves to keep the information suitable so that it does not offend people who have access to it. Radio, television, music, and movies have all been exploited in the government's censorship attacks. For example, in the 1980's the government passed a law that placed a parental advisory sticker on compact discs with explicit material because of language in a 2 Live Crew song titled "Me So Horny" ( 1). Like its predecessors, the last decade of the twentieth century will be remembered for its strides in technology, and, with the increased use of computers everywhere, the nineties will probably be remembered as the computer age. The increased popularity of the Internet "for every purpose- delivering news, religious evangelism, academic research, business, and just plain fun" (Siroco 48), which has a population now estimated at 51 million in the United States and Canada alone (Wallach 19), exemplifies the nineties as the computer age. Unfortunately, the outbreak of users makes the Internet a prime target for censorship. These attempts at censorship have included many small state laws, as well as a federal law, that have been challenged by Internet users who feel it should be entirely free of government censorship (Wallach 19). People feel that the laws passed by the state and federal governments, along with agencies like the Federal Communications Commission (FCC), are unconstitutional. Therefore people are starting to fight back and are suggesting other options to avoid these conflicts.

The government's main problem with censorship is making the laws agree with the Constitution of the United States. The First Amendment to the Constitution states that "Congress shall make no law abridging the freedom of speech, or of the press" (Constitution Amendment 1). When a law is passed that censors published material, it is an infringement of the right to free speech or free press. However, the government maintains that they are only making things more suitable for the people who have access to the information. In this assertion, the government never clarifies its definition of "suitable". Many times, when the government passes such laws, there are attacks by people who feel their rights are being taken away. For example, in the 1989 court case Jerry Falwell vs Larry Flynt, Jerry Falwell charged that a satirical ad published by Larry Flynt, that suggested Falwell's first sexual experience happened with his mother in an outhouse, was libelous. The Supreme Court sided with Flynt saying that "the fact that society may find speech offensive is not a sufficient reason for suppressing it" (Oppriecht 1). The state and federal governments look right by this Supreme Court case when they write the laws censoring information on the Internet. Flynt, like many of the people fighting against the government's laws, says there should be ways to keep sexually explicit materials from children. He says he is "concerned about children, but that's a parent's responsibility" and that children should not be able to read or see anything they want (Oppreicht 1). The government has many times tried to make things more "suitable" by censoring them, but their main problem is making the laws agree with the Constitution.

Since the population of the Internet began to increase dramatically, state governments began to pass laws censoring information available on the Internet. These laws have been written to outlaw a variety of topics ranging from bomb making to pornographic materials. Although the Constitution guarantees freedom of speech, Georgia has criminalized "any instructions about explosives or other dangerous weapons if the speaker has reason to believe that someone somewhere in the audience might use the knowledge for illicit purposes" (Wallach 31). This law was passed almost immediately after the Atlanta bombing during the 1996 Summer Olympics. Because the state felt that the information for building the bomb may have come off of the Internet, they banned anyone from seeing information of that kind. This was all done because of one person's misuse of the information. Two other states have passed laws that deal with sexually related material. First, in Kansas, it is illegal to "possess or transmit any digital data that depicts or simulates sex involving teenagers under 16" (Wallach 31). It is also now a felony in Illinois to "send an e-mail proposition to anyone under the age of 13" (Wallach 31). Finally, there is a law in Connecticut that makes it a felony to "transmit text that contains threats with the intent to harass, annoy, or alarm" (Wallach 31). Although these laws are not completely related to what they censor, the laws are very much the same in that they unconstitutionally censor material that is posted on the Internet. The laws do not allow freedom of speech on the Internet. These laws were written and passed very quickly so the governments could quickly attain control of the Internet. The collection of poorly drafted laws that were written by state governments are the reason the federal government interfered with the Internet and form the premise of the Communications Decency Act (EFF 2).

The primary reason for writing the Communications Decency Act (CDA) was the availability of pornographic material on the Internet. However, the displaying of pornography could be expected since "every new communications technology spawns a new market opportunity for pornographers" (Garber 82). Although "much of the material available on the Internet is intelligent and worthy of our attention," there are over 3,000 'X' and 'R'-rated sites available on the Internet (Siroco 48). "With only a few clicks or keystrokes, the World Wide Web can become the world wide world of sex, with brightly lit photos of nude models beckoning the screen scroller" (Savage A:19). People have been using the Internet for business by selling merchandise directly from their web pages. Pornographers see the Internet as a way to make money and most of the "commercial computer services usually demand that users pay by credit card, which generally excludes young people"(Savage A:19). However, the federal government still decided to attack these entrepreneurs by writing the CDA. "The proponents of the CDA are fueled by outrage that hard-core pornography can be found on a computer network to which children have access" (Quittner 56). The CDA is meant to shield children and make sure that the information that can be obtained is suitable.

Another reason the CDA was written was because of attacks at Congress by anti-porn activists who felt that the intertwining of pornography into the Internet was endangering their children. One of the largest anti-porn groups, the Christian Coalition, is concerned with "material going into the hands of young people whose lives can be permanently altered" (Quittner 56). Another major anti-porn group, Enough Is Enough, lead by Donna Rice Hughes, claims that once children have seen pornography it can never be erased from their minds (Savage A:19). Donna Hughes' work has helped persuade Congress to pass the CDA, which President Clinton signed into law last year as part of the bill deregulating the telecommunications industry (Savage A:19). Hughes persuaded Senator J. James Exon to introduce the CDA into the Senate. The anti-porn activists were convincing enough so that less than twenty-four hours after the bill left committee it was passed by majority in both houses of legislature. The CDA was then signed into law as part of the Telecommunications Reform Bill by President Clinton on February 8, 1996 (EFF 1). This law was the first federal law to censor the Internet.

The CDA is a strict law that has harsh penalties for those who disregard its content. The law makes it a federal crime, punishable by up to two years in prison and/or a $250,000 fine for anyone to "use an interactive computer device to send (or) a person under years of age 18" any image or communication that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" (Savage A:19). The law only states that material that is "indecent" or "patently offensive" should be penalized with a giant fine or jail time. After signing the bill President Clinton backed his decision by saying that "the Internet's vast potential as an education and information tool will be wasted if pornography flourishes" (Quittner A:19). The new law was then followed with thousands of web pages shutting down and placing blue ribbons that are a symbol for free speech on the Internet.

The unclear language used in writing the CDA has proven to have many problems. The main purpose of the CDA is to "squelch online pornography and make the Net safe for children by banning 'indecent' content" (Quittner 56), but it is so vague in its language that the CDA does not allow for people to converse about sexually related topics such as sexually transmitted diseases or breast cancer. The CDA also makes it illegal for people to place famous paintings of nude women on their servers (Simons 57). An increasingly popular Internet device known as the Internet Relay Chat (IRC), a place where people can go and type to people around the world in real time, has been directly censored by the CDA. The CDA has effectively censored the IRC by disallowing the creation of chat rooms where people can talk about STD's or breast cancer. If they were to create a room with the topic of STD's they would be faced with a fine of $250,000. This law is an infringement of the people's right to free speech and is a violation of the First Amendment to the Constitution. Another problem with the CDA is that there is no efficient way to check up on all of the web sites. If the government finds a web page that is 'indecent,' the Internet service provider which hosts the page can be found criminally liable because they do not censor their users (Wallach 31). This gives the responsibility of the government to censor to the Internet companies. The government says they are trying to make the Internet a suitable place for children to explore, but, they are not clear in what they want to do. The CDA, as it is written, is an unconstitutional law that does not allow free speech or free press.

People who feel the law is unconstitutional have rallied together to form many anti-CDA organizations. The largest organization, the Electronic Frontier Foundation (EFF), has compiled a complete web site that contains information about the CDA and its unconstitutionality. The EFF has started the Blue Ribbon Campaign, which encourages people to place a blue ribbon on their web site if they believe that the Internet should be free of censorship. Another organization for free speech is the Families Against Internet Censorship (FAIC), an organization of families with children who feel that the Internet should not be censored. Barry Fagin, who leads this group of over 200 families, maintains that "online families have a responsibility to challenge the notion that the Communications Decency Act is universally supported by families" (Reid 16). These organizations feel that the CDA is unnecessary and unworkable and is a "threat to a medium that thus far has served the public extremely well" (Siroco 48). The CDA is just a nuisance to the Internet, and only makes people worry as to whether they break the law when they post something on their web sites.

The two organizations, the FAIC and the EFF, have put pressure against the courts to find the CDA unconstitutional. In December of 1996, a special panel of three judges, "convened in Philadelphia to review the new law, [and] pronounced the governments attempt to regulate online content more closely than printing or broadcast media 'unconstitutional on its face' and 'profoundly repugnant'"(Quittner 56). The judges sided with the Internet users and struck down the CDA as unconstitutional. The three judges, Stewart Dalzell, Roger Buckwater, and Delores Sloviter, said that "as the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion" (Simons 57). After the hearing, the Justice Department had 20 days to decide whether to ask the Supreme Court to review the case (Quittner 56). The efforts of the people have proven to be strong enough to fight down the harshest censorship law written by the government.

After the judges found the CDA to be unconstitutional, the Justice Department appealed the decision to the Supreme Court. The case brought a lot of attention and was given many nicknames. One journalist referred to it as the "Times vs. Sullivan of cyberspace," referring to the court case that granted protection to journalists in 1964 (Quittner 56). However, before the trial even started, many experts predicted that the decision of the court case would probably uphold the decision of the Philadelphia judges finding that the word 'indecent' is too ambiguous and broad (Simons 57). Going into the case, there were many people who wanted to prove their points that the Internet should not be censored. The case had over fifty plaintiffs, ranging from Microsoft to the American Library Association (Quittner 56). The court case was guided by experts who brought computers with Internet connections into the courtroom, allowing the judges to search online for porn and test software that lets parents censor the information for their children (Quitttner 56). The case became a technological warzone with each side providing an endless list of expert witnesses and computers to support their respective causes.

When the trial ended, the justices decided that the CDA was unconstitutional and struck down the law. They found that pornography does not just jump out at children and "the governments' own expert witness acknowledged that the odds were slim that a user would come across a sexually explicit site by accident" (Quittner 57). In fact, the Internet has over thirty million pages and the chances of coming across one of the three thousand 'X' or 'R' rated sites is not probable. The judges also found that sites with vulgar material are usually "preceded by warnings admonishing those under 18 to keep out" (Quittner 57). Most commercial sites take reasonable, effective, and appropriate actions to restrict minors from accessing lewd material by requiring either a credit card or an adult access code (Wallach A:19). The judges "finally concluded that whatever danger was posed for kids by the presence of indecent offerings online was best addressed by parents or teachers" (Quittner 57). The Supreme Court concurred with the judges in Philadelphia that children were at no particular risk and the CDA is a violation of the First Amendment to the Constitution.

Even though the anti-CDA organizations won their battle against the government censoring material, they do not feel that the Internet should be without censorship. Most of the families, like the judges, believe that the censorship should be left to the parents. The EFF feels that "existing anti-obscenity laws, together with low cost technological solutions, offer a more efficient, less intrusive answer to questions about protecting children in the online world" (EFF 1). These feelings are very similar to those of the FAIC which also feels that the censorship should be left to parents. The FAIC's web site includes many solutions for parents who want to know how to protect their children. "The page lists members and provides links to filtering software such as Cyberpatrol, Internet Filter, and Net Nanny, which provide much more parental control than the CDA" (Reid 16). These software solutions allow parents to block certain sites from being accessed by their computer. The CDA would have only gotten rid of a few sites, whereas the parents can make sure their children do not search places when they are left unsupervised.

There is also the need for control of the Internet in schools and workplaces. Although many Internet service providers, such as America Online and Prodigy, do include parental control programs, there is still a need for additional control. "It goes without saying that computer smut has no place in the office, but you don't need laws to keep it out" (Garber 82). An employer can stop employees from wasting their time and the company's money tittering at the latest Playmates of the month by logging the Universal Resource Locators (URL's) that are accessed in any given time period. All network browsing software records the URL's visited during the past few days, so if an employer, teacher, or parent, wants to check to see if the users have been using the Internet for useful purposes or to look and pornography , all they have to do is look at the file of logged URL's (Garber 82). If an employer, teacher, or parent lets it be known that the URL's are being logged then the users will not be inclined to look at pornographic sites. These techniques, as well as filtering software, are extremely effective ways to censor the material passed through a browser.

Even though the government has lost the battle to censor the Internet, they still want to have some type of control over it. The FCC has been pushing the government to pass laws that would tax the Internet users for the time they were online. The FCC argues that "most calls to Internet service providers are local calls, and thus toll-free, but add substantially to the burden on local phone systems and have compelled them to spend millions on new local lines" (ORR 55). The users of the Internet have been outraged by the suggestion of an Internet tax and have began to send out electronic mail to people urging them to protest against such fees. When one such electronic mail "warned that Bells were seeking a fee of 3 cents per minute, or a whopping $1.80 per hour, per call, and that those charges to access providers would have to be passed on to users," the protesters started to bring in over ten thousand messages daily to a special address set up in anticipation of such a revolt (ORR 55). If these laws were to pass, the unlimited time that most providers offer would no longer be realistic. The FCC only wants the money so they can pay for the new systems they have to install to carry the surge of local calls. But many providers say that they are already paying for it by paying for their local phone numbers. For example, America Online Inc. currently has about 200,000 telephone lines and pays approximately thirty-five dollars a month for each of them, for a total of seven million dollars per month (ORR 58). If they were to be charged per-minute their costs for telephones would increase to such high figures that most small companies would go bankrupt. This type of control of the Internet would prove to be irrational if the FCC was able to get the government to pass such a law.

The FCC is also trying to get control of the Internet by persuading the government to pass laws that prohibit the use of Internet telephony software. The most prevalent organization in the attempt to pass this law is the America's Carriers Telecommunication Association (ACTA), which is a trade association of interexchange telecommunications companies (Helein 1). ACTA wants to ban computer software that "enables a computer with Internet access to be used as a long distance telephone, carrying voice transmissions, at virtually no charge for the call" (Helein 1). The software that is available for a one-time fee allows the users to talk by sending voice digitally through the Internet to the person on the other line. As long as both users have the same software and computers with speakers and microphones, they can speak with each other for the fee of using the Internet. This feature proves to be very cost effective since most Internet service providers allow users to buy unlimited time monthly for a relatively low price. One of the programs, "Internet Phone," by VocalTec Inc., allows any user to connect to any other user anywhere in the world (Orr 3). Current laws by the FCC and most states "require interexchange carriers to assess and collect from the using public specific charges to support various regulatory policies and programs used to sustain and advance national and state goals for telecommunications" (Orr 2). The local telephone companies feel that the software is taking away some of their business and they are unable to collect the taxes they need to keep their systems up to date. They want the government to take control and pass a law banning the use of these products. If there were such a law, it would take away the freedom of speech over the Internet and be unconstitutional. Even if they were able to pass such a law, there would be no way for the government to know if people who already have the software are still using it.

The government continually tries to pass laws that will allow them to gain some type of control over the Internet. Even after the CDA, which proved to be unconstitutional in two courts, the government is trying again to write laws that make the material on the Internet "suitable". There is currently a bill in the Senate that has an extremely harsh suggested penalty of twenty years imprisonment to anyone who distributes by any means, "information pertaining to ...the manufacture of explosive materials, if there is an intent or expectation that readers may act on that information" (Levy 48). This type of penalty is extremely irrational and could also, like the CDA, be used out of context since the language is so vague. The government will likely continue to pass laws that will censor the information as long as the people do not stand up for what they believe. By standing up for their rights, people were able to strike down the CDA and blow a hole in the government's attempts to gain control of the Internet. The FCC laws, if they are ever passed, will probably have opposition, and the "first court case of the twenty first century" can be used in court to try and erase those laws from the books as well. Although the 1990's will probably be remembered as the computer age, they will also be remembered as the free computers age. The users of the Internet were able to join together and fight to get the free speech that they wanted.


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