Sender: Joe Shea <•••@••.•••>
CENSORSHIP UPDATE
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by Jonathan Wallace
American Reporter Correspondent
New York, N.Y.
4/18/96
shea
free
TWO ATTACKS ON A BAD LAW
by Jonathan Wallace
American Reporter Correspondent
NEW YORK -- Two court cases, one being heard in Philadelphia and
the other in New York, will determine the fate of freedom of speech in the
21st century.
The two cases, ACLU v. Reno and Shea v. Reno, are challenges to
the constitutionality of the Communications Decency Act (CDA), which
criminalizes online speech which "depicts or describes" sexual or
excretory acts or organs.
The new law creates an unconscionable distinction between indecent
speech printed on paper and in electronic format; by its plain language,
the CDA would criminalize the works of James Joyce, William Burroughs or
Henry Miller on the Internet. The law provides no exception for works of
literary value.
Contrasts between the two cases provide an interesting study in
legal strategy.
Twenty organizations, including the American Civil Liberties Union
(ACLU) itself, signed up as plaintiffs in the better-publicized case.
These organizations are all serious purveyors of information which may
cross the line into the area of "indecency" defined by the CDA: safe sex,
human rights, rape, the Holocaust, gay issues, and censorship are some of
the topics covered in the plaintiffs' Web pages. Another case, brought by
the American Library Association, America Online and other organizations,
has been consolidated with the ACLU case.
The ACLU attorneys, led by senior attorney Chris Hansen, are
taking a determined, broad-based approach, arguing that the wide variety
of speech on the Internet represented by their clients is unconstitu-
tionally burdened by the CDA. First, they argue that the CDA is unconsti-
tutionally vague, in that it is not reasonably ascertainable what the
law's definition of "patently offensive" sexual material really means:
"Given that American society is comprised of people from an endless
variety of religious, ethnic, cultural, political, and moral backgrounds,
each with his or her own view of what constitutes 'indecent' or 'patently
offensive' expression, these terms are completely vague and do not put any
reasonable person on notice of what communications are prohibited."
The ACLU then argues that the CDA, if not vague, is overbroad,
capturing speech that clearly is First Amendment protected:
"Even if the government could criminalize some constitutionally
protected online communications to minors, 47 [the provisions of the CDA]
are unconstitutionally overbroad, in violation of the First Amendment,
because they ban far more constitutionally protected expression to minors
than possibly could be justified by any governmental interest."
Courts have long held that laws affecting speech, if permissible
at all, must be shown to be "narrowly tailored" to serve a compelling
governmental interest.
The ACLU challenges both of these factors: the CDA it says, is not
the least restrictive means of accomplishing the goal of protecting
minors. It also produced a witness in court who testified, as an expert
on sex education, that pornography is not harmful to young people (thus
trying to undercut the argument that the government has a compelling
interest in protecting young people against indecency).
As additional arguments, the ACLU complaint states that the CDA
violates the constitutional right of privacy, by criminalizing explicit
material sent in private email; denies a right of anonymous speech; and
unconstitutionally forbids abortion-related speech on the Net.
The ACLU approach can be characterized as a shotgun strategy --
"let's hit the CDA with all the ammunition we have." The case involves
numerous plaintiffs and every conceivable legal argument, based on the
ACLU's decades-long experience in litigating constitutional controversies.
By contrast, the Shea case is a narrower attempt to plant a spear
through the heart of the CDA. The thrust of the case is summed up in the
following elegant statement: "There is no legal or constitutional basis
for the distinction between traditional newspapers and newspapers
distributed electronically."
Joe Shea is a reporter and the part-owner of an online newspaper
and news service, The American Reporter. Subscribers to its email and Web
versions include newspapers and Web sites that pay license fees to reprint
stories carried by The American Reporter.
While the ACLU, consistent with its civil liberties mandate, is
concerned to protect both serious speech and entertainment, words and
pictures, Shea is in court for one reason alone: the threat the CDA poses
to serious speech, the news reporting and opinion pieces traditionally
protected by the First Amendment guarantee of freedom of the press.
Why, Shea wants to know, should it make any difference if an
article with strong language is printed on paper or captured in electronic
text?
While the ACLU went prospecting for plaintiffs whose existing Web
and Internet sites were threatened by the CDA, Shea chose to try to make a
test case of himself. The American Reporter reprinted a very strongly
worded editorial on the CDA, written by a retired judge and salted with
numerous ocurrences of the "seven dirty words" long ago made immortal by
the FCC and George Carlin.
"The publication of this same editorial in a traditional newspaper
or magazine is neither unlawful nor illegal," Shea points out.
Shea's complaint concludes that: "The statute, as written and on
its face, is unconstitutionally overbroad and impermissibly limits,
abridges and regulates plaintiff's rights to free speech as secured by the
First Amendment."
Like the ACLU, Shea also claims that the CDA is vague, because "it
allows indecency to be decided on a subjective, community-by-community
basis."
What Shea is referring to is language in the CDA that appears to
allow indecency to be decided according to the standards of each local
community from which a Web page may be accessed. However, some
commentators, like Electronic Frontier Foundation staff counsel Mike
Godwin, believe that the courts will apply a single national standard in
cases under the CDA. EFF is a plaintiff in the ACLU suit and Godwin is
co-counsel.
Each case is following a valid strategy. The ACLU, like a
shotgunner, has traded away precise aim for a spread of issues, but has a
greater hope that it will hit on at least one point. Shea, hurling a
spear, has only one chance to hit the CDA, but will inflict a deadly wound
if he does.
The court deciding the ACLU case could conceivably render a
decision avoiding the central issue of the Shea case; it could, for
example, hold that protecting minors against pornography is a compelling
interest and that the CDA is narrowly tailored, while leaving open for
later cases the precise boundaries of speech affected by the CDA.
The court in the Shea case cannot avoid Shea's sole issue. It will
be forced to tell us whether the First Amendment really permits any
distinction to be drawn between paper and electronic newspapers.
Writing in 1983, a remarkably prescient professor, the late Ithiel
de Sola Pool, said, "The specific question to be answered is whether the
electronic resources for communication can be as free of public regulation
in the future as the platform and the printing press have been in the
past."
In the 21st century, for an idea to gain currency it will have to
exist in cyberspace (we are not very far from this now.) Paper books,
magazines and newspapers will represent a far smaller percentage of all
speech than they do today.
The plaintiffs in the Philadelphia and New York cases represent
the "thin blue line" between the rest of us and what Pool called "quite
radical censorship."
-30-
(Jonathan Wallace is co-author with Mark Mangan of Sex, Laws and
Cyberspace (Henry Holt, 1996), a book on Internet censorship. He is a
plaintiff in the ACLU case and has been assisting the Shea attorneys with
technical issues.)
This article may be freely reproduced.
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Subject: cr> american family association vs. compuserve
Sender: •••@••.•••
hi.
this story is interesting. here we have some facists who have, oddly enough,
found an excuse to bully those who want nothing to do with them (that would
be us). the american family association has attempted to prosecute someone
with a law which is in the challenge process, and they expect *who* to
listen?
some particularly amusing pieces, followed by my disturbing observations :
"The Mississippi group says that isn't sufficient. In a household that
hadn't blocked the adult area, the invitation could have been seen and the
images viewed by a minor, it said." i really fail to see how any idiot could
miss the obvious problem. which is, if you are speaking of a household where
this is allowed in, then you are, quite simply, speaking of a household
*where* *this* *is* *allowed* *in* ! this is another example of the outlaw
right deciding that they care not a bit what the parents *really* think,
they're just gonna' set a parental standard that pat robertson sez is how is
should be, and if you wanna make parental decisions for your own kid . . .
well, um, may something really bad . . . um . . . plop on yer hed . . . (to
put that in the language spoken up here, they are again trying to set a
standard for parenting, nevermind that some parents might wish to make their
own decisions, no-thank-you very much! not a chance.)
"Trueman readily acknowledged that the AFA considers the law too weak, and
if the CompuServe case isn't prosecuted, ''it's time for Congress to start
from scratch.'' He said on-line services should have to automatically block
all adult material from view unless a subscriber specifically requests
access to it." i wonder if this moron really thinks this little on his march
off the cliff. if he had any thought in his head other than the propaganda
that his org's lawyers had cooked up for a media bash, then he would think
"hey, wait just a well-censored minute . . . how in the, um . . . really bad
place . . . would someone view this stuff unless they were to ask for it? oh
well, a mussolini quote a day keeps the thinking away!"
think about it. when wrong, many people simply march on, saying they are
right, and if not then prove it. then when someone proves it, they complain
of being "only human" and ask that we believe a word of it a second time
around. when they pretended to be right, why did they conveniently ignore
this "human limits" argument, and when they spew a copout, where now lies
their lost perfection?
you might then ask, "what makes *you* so right then, eh?" i doubt all the
time, but then i think "yeah, but what will we be doing today that will be
any of this idiot's business, and how in the hell do you suppose he / she
would rationalize it so?" no way, so far we look pretty good to me.
bye
dicedpupys
:x
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