Federal Laws Restricting Internet Content

(1996 & 1997)

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Topics in this section:

The Communications Decency Amendment:

This amendment l was sponsored by Senator Jim Exon (D-Nebraska), and passed by the US Senate on 1996-JUN-14. It includes:

Section 223 (47 U.S.C. 223) is amended .... by adding at the end...:
(e) Whoever...
(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent comment, request, suggestion, proposal, image to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years or both.

The amendment shows a profound lack of knowledge of the working of the Internet. An Internet Service Provider (ISP) gives subscribers the ability to surf the Internet. The law could be interpreted to say that the ISP is providing indecent material, because it follows the subscribers' requests to view different web sites.  But surely an ISP acts much like the telephone system: an individual uses their telephone to make a call. A local or long-distance service provider can hardly be held responsible for the conversation that results from the call. Also, the law seems to assume that each web site is aware of the age of their visitors. Many Webmasters have no way of knowing the Internet address of visitors, so of course they have no indication of their age. Our own ISP provides us with weekly summaries which only show totals of "hits" from various top level domains (com, org, mil, gov, ca and dozens of other country codes). Individual internet addresses are not shown.

The only way in which a Webmaster could be certain of following the law would be to eliminate all material that could be considered indecent by anyone, when exposed to a person under 18.

The Comstock Act:

The telecommunications bill also contains amendments to the Comstock Act which were made at the last minute. The latter act was passed in 1873 to suppress the flow of both contraceptive and abortion material and information through the mail. Margaret Sanger and other early birth control pioneers were prosecuted under this law. By 1971, contraceptives were generally available to the public. The law was then updated to delete all references to contraceptives. In 1973, the US Supreme Court legalized early abortions in its famous Roe v. Wade decision. However, the Comstock law was kept on the books, unchanged until now.

"Comstock" has long been considered to be unconstitutional, but has never been declared so by a US court. By amending the law, it has gained "renewed currency" and might be ruled to be constitutional.

The new section [18 U.S.C. Section 1462(c)] it prohibits the taking or receiving, via interactive computer service of "any drug, medicine, article, or thing designed, adapted, or intended for producing abortion ... or any written or printed card, letter, circular, book, pamphlet, advertisement, or a notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made."

It is believed that the law, as currently amended, bans abortion information of all types on the Internet. Our essays on abortion is probably illegal under this law. Under a wide-ranging interpretation of the term "indecent" much of this site could be illegal, because many people would consider large parts of it offensive.

Court Challenge to the CDA:

President Clinton signed the law on 1996-FEB-8. The ACLU filed a law suit immediately. There were 27 plaintiffs, including the American Library Assoc., American Society of Newspaper Editors, Newspaper Assoc. of America, the Society of Professional Journalists, and the Citizens' Internet Empowerment Coalition. The CIEC represents 40,000 Internet users. They argued that this law violates the First Amendment rights to freedom of speech, and violates the Fifth Amendment twice.

The suit, Sanger v. Reno, was filed by Alexander Sanger, President of Planned Parenthood of New York City (PPNYC) on behalf of the many other co-filers. The case was heard by a three-judge panel.

On 1996-JUN-12, the Federal Court in Philadelphia granted a preliminary injunction against the Communications Decency Act, by a vote of 3 to 0. An excerpt from their 175 page decision reads: "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion....Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."

The US Supreme Court heard the case on 1997-MAR-19 and rendered a 7 to 2 decision on 1997-JUN-26 which declared the law to be unconstitutional. Banning material that somebody finds "unseemly" was seen to be a gross violation of the First Amendment to the Constitution - the one which guarantees freedom of speech.  It was the Court's first ruling on free speech on the Internet. Justice John Paul Stevens wrote the decision. He said, in part:

"As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it...The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

One of the basic problems considered by the court was the impossibility of Internet Service Providers determining the age of an individual surfing the net. The only simple way to prevent access by children to adult and other unsuitable materials would be to prevent access by everyone. Thus, the content of the Internet would have to be restricted to only that which is suitable for children. Justice Stevens commented: "The government may not reduce the adult population...to... [view] only what is fit for children." Another consideration by the court was that the Internet is more like a newspaper or magazine; a surfer must actually make a positive move to request information. It is less like a radio or TV program, where the listener/viewer passively hears and views information provided by the station. Thus, the Internet should be given the same freedoms as are granted to the press, not the restricted freedoms allowed to the more invasive broadcast media.

Fortunately, there are technological solutions to the censorship problems. Parents can buy censorship software that prevents their children from accessing unsuitable material. Most software systems allow the parents to define what type of material is suitable an what is not. Some Internet Service Providers are bundling censorship software with their sign-up packages. Some new versions of Internet browsers will have programs built-in that will allow the computer owner to select from a variety of censorship criteria. However, most parents will not do this, so that many children will be free to roam the Internet freely.

Reactions to the Supreme Court Decision:

Some of the responses by religious groups appear to misunderstand the nature of the Internet, of Constitutional guarantees of freedom of speech, and of the role of Government:

References: