cr> BACKGROUNDER: Broadcast v. The Internet


Craig A. Johnson

A first-rate capsulization of some of the legal history surrounding 
the "indecency" standard -- and why it makes no sense for the 
Internet -- from WIRED Staff Editor, Todd Lappin.


------- Forwarded Message Follows -------
Date:          Mon, 19 Feb 1996 13:06:02 -0800 (PST)
To:            •••@••.•••
From:          •••@••.••• (--Todd Lappin-->)
Subject:       BACKGROUNDER: Broadcast v. The Internet

There are many things that aren't right about the Communications
Decency Act (CDA) -- but one major gripe is that the legislation
applies an indecency standard that was originally created for
broadcast radio and television to the Internet.

How the "indcency" standard came into existence is a long story, but
it basically traces back to the Radio Act of 1927. In the 1978 case of
FCC v. Pacifica, the Supreme Court upheld the constitutionality of the
"indecency" restrictions in a VERY NARROWLY worded decision that that
was meant to apply ONLY to broadcast radio and TV.  The Pacifica
decision was very explicit about the characteristics of the broadcast
media which make it subject to a different (and lesser) standard of
First Amendment protection than other media.

Why did the court uphold the "indecency" standard as it applies to
*exclusively* broadcasting?  Here's what the court said in

"Of all forms of communication, broadcasting has the most limited
First Amendment protection.  Among the reasons for specially treating
indecent broadcasting is the uniquely pervasive presence that medium
of expression occupies in the lives of our people.  Broadcasts extend
into the privacy of the home and it is impossible completely to avoid
those that are patently offensive. Broadcasting, moreover, is uniquely
accessible to children."

Students of the Fist Amendment refer to this as the "pervasiveness"

To bring all this down to earth: the Court was concerned that Mom and
Dad might leave Junior in a room with the radio or TV blaring.  In
such a situation, given the pervasiveness and inherent passivity of
brodacast media, Junior could be inadvertantly exposed to indecent
programming.  That would seem a violation of earlier Supreme Court
precedents which assert that the State has a "compelling interest" --
above and beyond the First Amendment -- in shielding minors from
inappropriate media content.

In effect, Congress and President Clinton ignored the logic of the
"pervasiveness" argument by extending the indecency standard to the
Internet, wholesale.  In so doing, they also ignored the "unique
characteristics" of the Net which make it an entirely different beast
from TV or radio.  The assumption seems to have been that if the
medium conveys messages through a cathode ray tube, then it must be
like TV, and should be regulated as such.

Of course, treating the Internet like TV is absurd.

It's also insulting.

But unfortunately, this insult from Washington comes backed by
$250,000 fines and two-year prison terms.


Anyone who's ever spent time online understands that the Internet
(and/or services such as AOL, CompuServe, etc.) are not passive media.
 They are "active" in the sense that a user must actively go get the
content they wish to view.  In addition, currently-available filtering
software allows parents and teachers to screen out indecent Internet

This question of "Why the Internet is NOT like broadcast" is one of
the issues that lawyers representing the Internet community will
address while challenging the constitutionality of CDA in court.

(For a quick summary of legal precedent on this issue, I've attached
some text from the Federal case of Action for Children's Television et
al. v. FCC.  I'll say more about this case -- and why it's important
-- tomorrow. But for now, this is a very concise and clear
articulation of the judiciary's argument that different media are
entitled to different standards of First Amendment protection)

Spread the word!

--Todd Lappin-->
Section Editor
WIRED Magazine


EXCERPT FROM: Action for Children's Television et al. v. FCC

(A case decided by the US Court of Appeals for the District of
Columbia Circuit on June 30, 1995)

It is common ground that "sexual expression which is indecent but not
obsceneis protected by the First Amendment."  The Government  may,
however, regulate the content of constitutionally protected speech in
order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.

Thus, a restriction on indecent speech will survive First Amendment
scrutiny if the "Government's ends are compelling [and its] means
[are] carefully tailored to achieve those ends."

The Supreme Court has "long recognized that each medium of expression
presents special First Amendment problems.... Of all forms of
communication, it is broadcasting that has received the most limited
First Amendment protection." The Court has identified two reasons for
this distinction that are relevant here:

First, the broadcast media have established a uniquely pervasive
presence in thelives of all Americans. Patently offensive, indecent
material presented over the airwaves confronts the citizen, not only
in public, but also in the privacy of the home, where the individual's
right to be left alone plainly outweighs the First Amendment rights of
an intruder. ... Because the  broadcast audience is constantly tuning
in and out, prior warnings cannot completely protect the listener or
viewer from unexpected program content. ...

   Second, broadcasting is uniquely accessible to children.... Other
of offensive expression may be withheld from the young without
restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent
material availableto children. ... The ease with which children may
obtain access to broadcast material, coupled with the concerns [over
the well-being of youths], amply justifies special treatment of
indecent broadcasting.

As Justice Powell observed in Pacifica,

the difficulty is that ... a physical separation of the audience [such
as that possible in bookstores and movie theaters] cannot be
accomplished in the broadcast media. ... This ... is one of the
distinctions between the broadcast and other media ... [that]
justifies a different treatment of the broadcast media for First
Amendment purposes.

Despite the increasing availability of other means of receiving
television, such as cable (which is not immune to the concerns we
address today), there can be no doubt that the traditional broadcast
media are properly subject to more regulation than is generally
permissible under the First Amendment.

Unlike cable subscribers, who are offered such options as
"pay-per-view" channels, broadcast audiences have no choice but to
"subscribe" to the entire output of traditional broadcasters. Thus
they are confronted without warning with offensive material.  This is
"manifestly different from a situation" where a recipient "seeks and
is willing to pay for the communication...."

In light of these differences, radio and television broadcasts may
properly be subject to different -- and often more restrictive --
regulation than is permissible for other media under the First



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