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Date: Thu, 7 Dec 1995
From: Joe Shea <•••@••.•••>
Subject: The American Reporter, No. 174
Thought: The First Amendment has no flaws.
=Inside AR Today-
Jupiter Galileo's Fiery Plunge To Planet Floor Is Imminent
Exon Last-Minute Deal May Put A Muzzle On The Internet
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Editorial We'll Fight To The End For Free Speech
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=The World Reporter-
Pot Irish Scientists Study Use Of Hemp As Energy Source
World Pinkerton's Risk Assessment Service, Internet Edition
=Humor And Opinion-
Dennis Grease In A Bag, Instant Lawn Mowing & Other Treats
=Selected Releases-
Densmore Newshare Corp. Head Talks To Congress About Censors
White ACLU Will Also Go To Court To Fight Net Censorship
Quake A Quake On San Andreas May Be Far Worse Than Thought
______________________________________________________________
Letters On Our Stand For Free Speech
______________________________________________________________
Put + in search utility to jump from story to story.
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NEWS ANALYSIS
+
by Craig A. Johnson
American Reporter Correspondent
Washington, D.C.
12/7/95
cyberporn
1643/$16.43
CONGRESSIONAL DEAL ON PORN MUZZLES THE INTERNET
by Craig A. Johnson
American Reporter Correspondent
WASHINGTON -- In a special "cyberporn" caucus this morning, House
telecom conferees careened onto the shoulders and over the precipice of
the Information Superhighway. On a vote of 17 to 16, the conferees
approved wide-ranging "indecency" standards bringing the House language in
line with Sen. James Exon's (D-NE)communications decency provisions in the
Senate telecom overhaul bill.
In an effort to distill a uniform approach from the pot pourri of
anti-porn measures facing the general House-Senate conference committee,
the House conferees beat a hasty retreat from their earlier Cox-Wyden
parental empowerment approach, and rushed into the arms of the Christian
Coalition and its bedfellows.
The upshot: Internet users and providers, instead of finding gifts
in their holiday stockings this season, may well discover the decaying
corpse of their First Amendment rights. Faced with a choice between House
Judiciary Chair Henry Hyde's amendment, which would have reduced speech on
the Net to the babble of a children's nursery, and Representative Rick
White's (R-WA) "compromise" deal, announced with great fanfare on Monday,
based on a "harmful to minors" standard, the legislators took neither.
Instead, they plunged the Internet into a virtual vat of sulfuric
acid. White's approach was meant to pave the way for large corporate
users and providers, such as Microsoft, headquartered in White's own
district, to carry out their online business with minimal uncertainty and
to remove the regulatory monkey from corporate backs.
But White, trying to navigate a very narrow passage between the
Exon/Hyde minefield and the open seas of free speech, ran aground in the
nearly invisible political shoals of Congress as the 1996 elections
loomed ahead.
Repesentative Bob Goodlatte (R-VA) did the dirty work, offering an
amendment which, like Exon's bill, used the standard of "indecency" in
place of White's "harmful to minors" provision. Disappointingly, three
liberal Democrats threw in with the Net killers who voted for the
"indecency" ban -- retiring Congresswoman Pat Schroeder of Colorado, John
Conyers of Michigan, and Sheila Jackson-Lee of Texas.
A reporter could get no reaction from Schroeder's office late
today. But the Center for Democracy and Technology (CDT) here asserted,
"Had either of these members [Schroeder or Conyers] voted the other way,
libraries, schools, and even parents who allow children to access the text
of 'The Catcher In The Rye' online would not now face $100,000 fines and
prison sentences."
But the name of the game was political expediency. Despite heavy
lobbying, conference committees by definition are primarily concerned
with resolving differences in bills passed by both Houses. Under orders
from Speaker Gingrich -- he who said the Exon amendment was "clearly a
violation of free speech and ... a violation of the right of adults to
communicate with each other" -- the House conferees mimicked the Senate
"communications decency" proposal, and headed for an early lunch.
This lurch to the right removed one of the obstacles from the path
for the joint House-Senate conference committee which, eager to finish
its work, hopes to report the bill out of conference by next week, after
which it would go to both chambers for a final floor vote. Although the
conference committee must now approve the final language, both Democratic
and Republican staffers were optimistic that the remaining differences,
concerning "defenses to prosecution" for providers, could be papered over
in short order.
The Net community earlier this week was abuzz over the White
"compromise," which would have retained "criminal sanctions" present in
both the Hyde and Exon measures, but which was advertised as "encouraging
responsible action from employers and the telecommunications industry to
screen undesirable material."
But the White proposal was not all glitter and good cheer. White's
amendment would have included prison sentences and fines for sending or
displaying material that is "harmful to minors," a standard in use in many
states, but which, according to the American Civil Liberties Union (ACLU),
has never been tested at the federal level, and "would still violate the
free speech and privacy rights of those who communicate online." The
White proposal, like Hyde and Exon before it, would "effectively subject
all communications to the community standards of the most conservative
location," the ACLU said.
Nevertheless, the early part of this week saw great optimism that
the deal could proceed apace. The world was to be set right -- post-Exon,
post-Hyde. That, however, was not to be. The Goodlatte sucker punch
soured the White deal and Exon's legions could barely contain their glee.
How does this endgame stack up for the Net? "Given the inadequacy
of the defenses," both the modifed White amendment and the kindred Exon
measure would force "content and access providers to infantalize their
programming so that they could be sure they were not displaying something
deemed harmful to minors," the ACLU stated, as it reasserted its pledge
to take the issue to the courts.
The CDT, part of the coalition behind the original White proposal,
said the new measure "threatens the very existence of the Internet as a
means for free expression, education, and political discourse... and is an
unwarranted, unconstitutional intrusion by the Federal government into the
private lives of all Americans."
Literary works such as J.D. Salinger's classic "The Catcher In The
Rye," James Joyce's "Ulysses, and Chaucer's "Canterbury Tales" would be
electronically burned; nude images, of course, are a big no-no; and rap
lyrics? Forget it.
As for Net providers, Bob Collett, the President of the Commercial
Internet Exchange (CIX), whose members carry 75 percent of U.S. Internet
traffic, said, at a press conference on Monday, "Our members carry nearly
half a billion messages per day. They cannot control the content of these
communications and would be driven out of business by the Hyde approach."
But after today's vote, CIX faces the threatening spectacle of
thousands of Internet service providers at risk of being brought up on
charges for providing access to Web sites, lists and e-mail traffic deemed
"indecent" by some community in the U.S., whose standards for "indecency"
may harken back to the days of Hester Prynne and are completely out of
sync with the rest of the country, not to mention the world.
While corporations with well-oiled legal departments may be able
to work the baroque mechanisms of the "defenses to prosecution," in both
the revised White and the Exon measure, small to medium sized ISPs may
find it's not worth the candle.
Joining in the chorus supporting White earlier this week, the
American Council on Education said, "If Congress feels it is necessary to
legislate further in this area, it should at a minimum: (1) reject
criminal liability based on the transmission of 'indecent material,' and
(2) limit libraries and eductional institutions' exposure to criminal
liability under disparate state laws so that librarians and educators may
continue to develop the educational benefits of electronic communication."
These hopes have been shattered, and it remains to be seen how severely
libraries, educational institutions, research institutes, and nonprofits
will be impacted by the legislation.
For the most part, public interest organizations here were
confused, divided, and much in the dark about the machinations leading up
to the original White proposal. Lining up behind White was a veritable
cavalcade of online users and associations. The Interactive Services
Association (ISA), representing big online and Internet users, strongly
supported White. ISA president Bob Smith said the plan accomplished the
goals of "protecting children and free speech online." Companies such as
American Express, AT&T, EDS, Microsoft, MCI, USA Today, Nynex, America
Online, and Chase Manhattan Bank are members of ISA.
The optimism on the part of the coalition supporting White tended
to downplay the exorbitantly high price of doing business with Congress
for consumers and small to medium-sized Internet providers. Elevating the
constitutionally questionable "harmful to minors" standard to a federal
level, the ACLU argued, would have created "an entirely new federal
category of speech crimes" and "would have gone even further to prohibit
not merely direct communications but the online 'display' of such
materials," creating a category of law that the Supreme Court has said
'raise substantial constitutional questions.'" [American Booksellers
Association v. Va., 484 U.S. 383, 394 (1988)]
White relies on "authentication" procedures to certify that users
are not minors. Thus, the ISP or the Webmaster is under an obligation to
"deploy family empowerment blocking software" and "to seek out and
eliminate objectionable content," according to the fact sheet handed out
by White earlier this week. This "search-and-destroy" aspect of White was
not widely commented upon.
Both Exon and White would clearly limit the freedom of adults to
view Playboy pictures or nude pictures on Usenet or chat using "indecent"
language, such as the "seven dirty words" in a public online forum. But,
they will also invoke the more frightful specter of provider-censoring of
everyday words that are used in a medical, educational, literary, or
cultural context, such as recently happened when America Online banned the
word "breast" in its public bulletin boards and chat groups, only to
relent after angry protests by irate members of an Internet breast cancer
discussion list.
These portents may well extend to AIDS discussion and dialogue, and
sex education material in general, depending on the whim of the provider
and the standards of the community. One thing is clear: The solutions
being offered are plainly not the constitutionally-required "least
restrictive means" of prohibiting indecent or obscene speech.
But White and his supporters artfully label these types of "search
and destroy," (or "good faith") actions "Incentives for Private Sector
Empowerment Solutions." Exon calls them "defenses to prosecution." An old
Chinese proverb calls it as it is: "Black cats, white cats, what does
it matter? As long as they catch mice, they're good cats!"
-30-
(Correspondent Craig Johnson writes for Wired magazine.)
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+
by Joe Shea
American Reporter Correspondent
Hollywood, Calif.
12/7/95
indecency
free
WE'LL FIGHT TO THE END FOR FREE SPEECH
by Joe Shea
American Reporter Editor-in-Chief
Well, it looks like push may come to shove. A joint Senate-House
conference committee has inserted language into the telecom reform bill
that replaces a prohibition on Internet speech that is "harmful to minors"
with a ban on Internet speech that is "indecent" -- normal speech, in many
cases, and not necessarily lewd or obscene speech.
As many of you know, in Issue No. 49, in an editorial entitled "We
Vow To Challenge The Exon Act" our newspaper took the stand that such
language violates the right to speak freely granted by the First Amendment
to the U.S. Constitution. We said then, and we say again, that the
survival of free speech on the Internet is more important than even the
survival of this newspaper, and we will risk its very existence to fight
for a principle in which we fully believe.
We immediately won widespread support for our stand, and in the
ensuing days, Judge Stephen Russell of Texas agreed to write the
"indecent" article we had vowed to publish if the bill becomes law, and
Randall Boe, an attorney with Arent Fox, Kintner, Plotkin & Kahn, a
distinguished First Amendment proponent that litigated the "Seven Dirty
Words" case, agreed to represent our newspaper in an an action that would
be pursued all the way to the U.S. Supreme Court, if necessary, to
overturn it.
We have often believed in the past months that the language would
be abandoned, especially after House Speaker Newt Gingrich declared the
Exon language to be, in his opinion, unconstitutional and a violation of
our free speech rights. Exon has gone, but the language survived. We now
believe it will probably be adopted.
In the months since that June declaration, we decided that we
would ask other publications to join us in publishing the offensive
article by providing links to it from their home pages. We devised a
legal strategy which, if it is successful, may preempt the law, and may
even make it unnecessary to publish the offensive article, which we would
prefer not to do.
Nonetheless, we plan to proceed as have vowed to proceed. This
may create some discomfort, and we will honor any request to be formally
disassociated from the newspaper that any of our writers or subscribers
may make. It is not our desire to offend anyone with language that even
offends us, but we will not give away to anyone even a hair's breadth of
our right to free speech, in any medium, at any time.
Please be with us in our fight.
-30-
The American Reporter
Copyright 1995 Joe Shea, The American Reporter
All Rights Reserved
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Posted by Richard K. Moore <•••@••.•••>
Wexford, Ireland (USA citizen)
Editor: The Cyberjournal (@CPSR.ORG)
See the CyberLib at:
http://www.internet-eireann.ie/cyberlib
See Cyber-Rights library:
http://www.cpsr.org/cpsr/nii/cyber-rights/
You are encouraged to forward and cross-post messages and online materials
for non-commercial use, provided they are copied in their entirety, with
all headers, signatures, etc., intact.
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