Pornography on the Internet
The Internet is a method of communication and a source of information that is becoming popular among those who are interested in the information superhighway. The problem with this world we know as Cyberspace, the ‘Net, or the Web is that some of this information, including pornographical material and hate literature, is being accessible to minors.
Did you know that 83.5% of the images available on the Internet are pornographical? Did you know that the Internet’s pornography and hate literature are available to curious children that happen to bump into them?
One of the drawing features of the young Internet was its freedom. It’s …a rare example of a true, modern, functional anarchy…there are no official censors, no bosses, no board of directors, no stockholders (Sterling). It’s an open forum where anyone can say anything, and the only thing holding them back is their own conscience.
This lawless atmosphere bothered many people, including Nebraska Senator James Exon. Exon proposed in July, 1994 that an amendment be added to the Telecommunications Reform Bill to regulate content on the Internet. His proposal was rejected at the time, but after persistence and increased support, his proposal evolved into the Communications Decency Act (CDA), part of the 1996 Telecommunications Reform Act The Internet has changed the world by creating advertising, information, and businesses. However, there are the few bad apples in the Internet that have information, literature, graphics and images that have been deemed inappropriate for minors. Therefore, many people feel the Internet should be censored by the Government. The Government owns and operates the Internet and its agencies are responsible for what is on the Internet. However, for the parents with minors that are concerned about what their kids see- they should go out and get software to censor the Internet. Don’t ruin everyone else’s fun. Why should I have to be a peasant of the Government tyranny over the Internet? The people that worry about their kids and make the Government worry about it and pass legislation on censorship are the people that are too damn lazy to buy Internet Censorship software programs for their PERSONAL computers, NOT the entire United States’. The Government wants censorship, but a segment of the Internet’s population does not.
The Communications Decency Act is an amendment which prevents the information superhighway from becoming a computer red light district.
Thursday, February 1, 1996, was known as Black Thursday on the Internet when Congress passed (House 414-9, Senate 91-5) into legislation the Telecommunication Reform Bill, and attached to it the Communications Decency Act. It was then signed into law by President Clinton one week later on Thursday, February 8, 1996 known as the Day of Protest when the Internet simultaneously went black from hundreds of thousands of Internet citizens turning their web pages black in protest of the Communications Decency Act.
The Communications Decency Act which is supposed to protect minors from accessing controversial or sexually explicit material, outlaws obscene…, which already is a crime, and therefore the CDA is not needed, but also …lewd, lascivious, filthy, or indecent, and even annoying … comments, requests, suggestions, proposals, images, or other communication using a …telecommunications device all of which are protected by the First Amendment and therefore cannot be banned.
The Act is also unconstitutional because it does not follow the Supreme Court’s decision in Sable Communications Vs. FCC. requiring that restrictions on speech use the least restrictive means possible. The Court also stated that restrictions on indecency cannot have the effect of reducing the adult population to only what is fit for children.
We start with the federal Communications Decency Act of 1996, apiece of legislation signed into law by President Clinton on February 8, 1996, and now under legal challenge by the American Civil Liberties Union and others. The Communications Decency Act bans the communication of obscene or indecent material via the Internet to anyone under 18 years of age. (Telecommunications Act of 1996, Section 502, 47 U.S.C. Section 223a.)
We all know that this new law resulted from a complex meshing of political forces in an election year during which family values will continue widely to be extolled. But, is this part of the new federal law legal? All of us have heard of the First Amendment to the United States Constitution. It states in pertinent part that Congress shall make no law. . . abridging the freedom of speech . . . . If those words are to be read literally, then the knee-jerk answer would be that this new law is illegal. But, the First Amendment, while historically read fairly broadly, has never been interpreted literally. Even Thomas Jefferson, when he served as President, tried to prosecute conduct that he viewed as seditious speech. The U.S. Supreme Court also consistently has ruled that pornography and obscenity fall outside the First Amendment, along with a variety of other seeming speech.
At the same time, adult conduct which includes sexually oriented conduct that some (perhaps even arguably a majority) might consider immoral has been considered protected by the First Amendment when it takes place in a private setting. Perhaps the outmost reach of that theory of constitutional privacy manifested itself in Roe v. Wade and the right to an abortion (itself now a controversial proposition). Surely, though, it can be said, Internet surfers who find indecent material (whatever that is) as a result of their inquiries from home (or the office) fall well within the outer reach that Roe demarcated? Or is that true?
Then, we come to the question of children, the stated objective of the new Congressional ban. Anyone who watches the news or reads newspapers knows that the courts frequently hold that government can legitimately try to protect the well-being of children. At the same time, how parents rear their children has generally been left to the parents, although perhaps because of publicized parental lapses more governmental activism seems to exist in that arena too. But it seems fair to say that few parents, irrespective of their political or religious views, would agree that the federal government should intercede in how they raise their own children. In general, parents have access to a wider variety of Internet access controls than controls over cable television or the movies. Additionally, most children who live in environments in which their parent slack access to Internet protection likely also lack the resources to acquire computer technology and Internet access. Is Congress intruding into the parental sphere in banning indecent Internet communications?
Proceeding further, the courts have generally given the federal government wide latitude to control what can be said or shown over the commercial television airways. We have all probably heard of the FCC’s ban of indecent speech and the seven dirty words of George Carlin or the antics of Howard Stern. But, the commercial television airwaves flow almost inexorably into everyone’s home, with little more effort than the flick of a dial. The Internet is something that most of us must buy access to and which we then choose to surf on our own. And does the government really have the right to tell parents what books and magazines they can let their children read at home or what television programs or motion pictures they should let their children watch?
If the answer is, yes, then how much stretching does it take to extend government control so as to encompass notions of social or philosophical or religious tutelage?
A complex legal and societal problem indeed! To recap, if the Internet is akin to commercial network television and if the government can constitutionally restrict the menu of offerings there, then why not the Internet? But, the Internet is different, in lots of ways. And, what does indecent mean anyway? Pornography and obscenity are difficult enough concepts in their own right. Justice Potter Stewart of the United States Supreme Court wrote in 1964: perhaps I could never succeed in intelligibly explaining what it is. But I know it when I see it.
Indecent, whatever that means (Congress itself did not define the term) must surely be something less offensive than obscenity. Is it just, fair or even wise to penalize someone from making available information which some would label indecent but which few of us can even define?
These are among the issues that the courts must decide in ruling on the legality of the Communications Decency Act of 1996. Only time will tell the outcome. At least, though, the courts are not quite as immediately influenced by current political trends as legislators and their final decisions may be less emotionally passionate and more deliberative.
We have the technology today to filter access to users on interactive media. One simple way to is to put information in the header describing the information that is contained in the transmission. There would be standards for how the information would be described. The application used to receive the transmission can be set to screen the unwanted transmission based on the information in the header. The settings can be protected by passwords. Using this technology the user would exercise control of the information available on interactive media instead of the government or network operators.
The CDA criminalizes knowingly transmiting or making available information on interactive media that can be accessed just as easily by wondering the isles of a book store. It also criminalizes indecent speech that is transmitted electronically between two consenting adults. i.e. Email. The punishment for such a crime can be up to 2 years in prison and/or a $250,000 fine.
The Communications Decency Act is unconstitutional by banning speech that is protected by the First Amendment in a medium in which the user is giving the ability to select what he or she does or does not want to receive.
The government gives citizens the privilege of using the internet, but it has never given them the right to use it.
If we have a Constitution and, supposedly, a First Amendment- why is the Government using legislation to stop us from expressing ourselves? We seem to be a ironic and paradox country. We didn’t want to be the first to use nuclear weapons and the atomic bomb, but were the first and, so far to present day, the last to use them.