The New and Improved, 99 & 44/100% Pure, FUCK the Communications Decency Act Home Page
"To send men to jail for violating standards they cannot understand, construe, and
apply is a monstruous thing to do in a Nation dedicated to fair trials and due process."
Justice William O. Douglas
(dissenting), Miller v. California
For lots of information including links to the full text of both decisions, visit the FUCK the CDA Links page.
So there you have it. We'll let you know when the government censors come to take us away.
Obviously, we believe the Communications Decency Act of 1996 is a bad law, unconstitutional on its face, and the result of a misguided attempt to make the world safer for our children. Protecting minors from inappropriate material is a fine idea, and there are many things on the Internet that, in our view, are not appropriate for them to view. No one seems to disagree with this.
The problem is how to do it. On the one side, are those who argue that our government can moderate the "taste" of publicly conducted discussions, as the Supreme Court in Cohen said, "in order to maintain what they regard as a suitable level of discourse within the body politic." On the other side, are those who believe the First Amendment to the Constitution does not permit the enaction of laws that enable law enforcers to prosecute for violations of bad taste.
But what is really going on is more subtle. In the Pacifica v. FCC case, the Supreme Court (in a since narrowly construed decision) permitted the FCC to sanction a radio broadcast company for playing George Carlin's "Seven Dirty Words" monologue at 2:00 on a weekday afternoon, a time when children presumably could hear the broadcast. Specifically a complaint was filed with the FCC by a father who, while driving in his car with his son, heard the broadcast and thought it inappropriate to be so broadcast on the public airwaves.
We think Pacifica is emblamatic of the tension between these two sides. Those favoring restrictions on content do so because they believe the public nature of the broadcast is the key. In other words, people shouldn't have to put up with such vulgarities in public. If others want to hear them, they can buy Carlin's record, or see him live on a stage. Those presentations do not offend the inadvertant passerby, if you will, such as the father and son driving in a car, because they are not truly public, in the sense that the presentation is not contemporaneously made to all.
But the problem with this approach is that it mistakes the nature of our First Amendment guarantees. It is precisely because the discourse is public that it is protected by the First Amendment. It does no good to sit in your home and say "The King is a Rat!". If it is to mean anything, one must be able to say it where others can here it, or show it where others can see it.
And this is what ACLU v. Reno is all about. In the name of moderating public discourse for the purpose of protecting minors, the proponents of the Act have ignored the value and purpose of a public forum, and have reduced it's content to that suitable for a child.
In a case called Michigan v. Butler, the Supreme Court recognized that this cannot be allowed. Follow this link for a brief, edited, quotation from that decision that explains why. Also, keep in mind that another weakness of the Act is it's failure to distinguish between what is or may be appropriate for, say an eight year old, and what is appropriate for a sixteen or seventeen year old.
Furthermore, the Act fails to recognize the importance of the Internet as a new form of public communication. At one time in human history, communication took place via word of mouth only in face to face meetings. The ability to draw, write, print, read, and broadcast has, over the centuries, changed the nature of that communication. Indeed, the entire notion of "community values", against which material on the Internet is judged under the Act, derives from the notion that communications are limited to individual communities and can therefore be judged by local values.
The Internet has clearly changed this. It brings all of these abilities to publish and receive information together; it empowers each individual to not only easily receive vast amounts of information, but to publish it too. Every individual with a computer, the right software, and a modem, is now their own William Randolph Hearst, Henry Luce, and William S. Paley, or for that matter, Pat Robertson or Hugh Hefner, rolled into one.
As a result, the nature of what is "public" has changed, and the law must accomodate this. It is one thing, perhaps, to prohibit, say, the display of nude, live "mannequins" in a department store display window, as publicly indecent. After all, anyone walking past the window will see it. But it is wholly another thing to prohibit an adult from obtaining a picture depicting such a scene from the Internet where, if one does not want to see such things, they need not view them.
Moreover, the nature of "community" has fundamentally changed. Regardless of what one thinks of the recent decision upholding the convictions of a California couple who operated a BBS, under community standards of Western Tennessee (the court decided the defendants could have modified the material they made available to different communities, thus honoring the different values between those communities), the Internet has re-written these rules. The "community" is now beyond the measurement of the values of any one locality, whether in a town, city, county, state, or even country.
Last, we cannot lose sight of the fact that in arguing against this Act, there remains the issue of what we can do to protect those who do not wish to see things they consider "offensive", and of what we can do to protect minors from matters that are inappropriate for them. There ARE alternatives. The calculated disdain of them by the proponents of this law, in our view, reveals in the extreme their desire to prevent not only children, but everyone, from seeing, hearing, reading, and saying what they alone deem to be improper. And, the abject pandering, and the abandonment of the obligations of the members of the House and Senate, and the President, to uphold the Constitution is, in our view, the most offensive thing of all.
Copyright, 1996, 1997. Sleeping Beauty Publications, Ltd. All rights reserved.
Last revised 6/27/97
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