Pornography On The Internet
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Pornography
on the Internet
The Internet is a method of communication
and a source of information that is becoming popular among those who are
interested in the information superhighway. The problem with this world
we know as Cyberspace, the ‘Net, or the Web is that some of this information,
including pornographical material and hate literature, is being accessible
to minors.
Did you know that 83.5% of the images available
on the Internet are pornographical? Did you know that the Internet’s pornography
and hate literature are available to curious children that happen to bump
into them?
One of the drawing features of the young
Internet was its freedom. It’s “…a rare example of a true, modern, functional
anarchy…there are no official censors, no bosses, no board of directors,
no stockholders” (Sterling). It’s an open forum where anyone can say anything,
and the only thing holding them back is their own conscience.
This lawless atmosphere bothered many people,
including Nebraska Senator James Exon. Exon proposed in July, 1994 that
an amendment be added to the Telecommunications Reform Bill to regulate
content on the Internet. His proposal was rejected at the time, but after
persistence and increased support, his proposal evolved into the Communications
Decency Act (CDA), part of the 1996 Telecommunications Reform Act The Internet
has changed the world by creating advertising, information, and businesses.
However, there are the few bad apples in the Internet that have information,
literature, graphics and images that have been deemed inappropriate for
minors. Therefore, many people feel the Internet should be censored by
the Government. The Government owns and operates the Internet and its agencies
are responsible for what is on the Internet. However, for the parents with
minors that are concerned about what their kids see- they should go out
and get software to censor the Internet. Don’t ruin everyone else’s fun.
Why should I have to be a peasant of the Government tyranny over the Internet?
The people that worry about their kids and make the Government worry about
it and pass legislation on censorship are the people that are too damn
lazy to buy Internet Censorship software programs for their PERSONAL computers,
NOT the entire United States’. The Government wants censorship, but a segment
of the Internet’s population does not.
The Communications Decency Act is an amendment
which prevents the information superhighway from becoming a computer “red
light district.”
Thursday, February 1, 1996, was known as
“Black Thursday” on the Internet when Congress passed (House 414-9, Senate
91-5) into legislation the Telecommunication Reform Bill, and attached
to it the Communications Decency Act. It was then signed into law by President
Clinton one week later on Thursday, February 8, 1996 known as the “Day
of Protest” when the Internet simultaneously went black from hundreds of
thousands of Internet citizens turning their web pages black in protest
of the Communications Decency Act.
The Communications Decency Act which is
supposed to protect minors from accessing controversial or sexually explicit
material, outlaws “obscene…”, which already is a crime, and therefore
the CDA is not needed, but also “…lewd, lascivious, filthy, or indecent”,
and even “annoying” “… comment[s], request[s], suggestion[s], proposal[s],
image[s], or other communication “using a “…telecommunications device”
all of which are protected by the First Amendment and therefore cannot
be banned.
The Act is also unconstitutional because
it does not follow the Supreme Court’s decision in Sable Communications
Vs. FCC. requiring that restrictions on speech use the “least restrictive
means” possible. The Court also stated that restrictions on indecency cannot
have the effect of “reduc[ing] the adult population to only what is fit
for children.”
We start with the federal Communications
Decency Act of 1996, apiece of legislation signed into law by President
Clinton on February 8, 1996, and now under legal challenge by the American
Civil Liberties Union and others. The Communications Decency Act bans the
communication of “obscene or indecent” material via the Internet to anyone
under 18 years of age. (Telecommunications Act of 1996, Section 502, 47
U.S.C. Section 223[a].)
We all know that this new law resulted
from a complex meshing of political forces in an election year during which
family values will continue widely to be extolled. But, is this part of
the new federal law legal? All of us have heard of the First Amendment
to the United States Constitution. It states in pertinent part that “Congress
shall make no law. . . abridging the freedom of speech . . . .” If those
words are to be read literally, then the knee-jerk answer would be that
this new law is illegal. But, the First Amendment, while historically read
fairly broadly, has never been interpreted literally. Even Thomas Jefferson,
when he served as President, tried to prosecute conduct that he viewed
as seditious speech. The U.S. Supreme Court also consistently has ruled
that pornography and obscenity fall outside the First Amendment, along
with a variety of other seeming “speech.”
At the same time, adult conduct which includes
sexually oriented conduct that some (perhaps even arguably a majority)
might consider immoral has been considered protected by the First Amendment
when it takes place in a private setting. Perhaps the outmost reach of
that theory of constitutional “privacy” manifested itself in “Roe v. Wade”
and the right to an abortion (itself now a controversial proposition).
Surely, though, it can be said, Internet surfers who find “indecent” material
(whatever that is) as a result of their inquiries from home (or the office)
fall well within the outer reach that Roe demarcated? Or is that true?
Then, we come to the question of “children,”
the stated objective of the new Congressional ban. Anyone who watches the
news or reads newspapers knows that the courts frequently hold that government
can legitimately try to protect the well-being of children. At the same
time, how parents rear their children has generally been left to the parents,
although perhaps because of publicized parental lapses more governmental
activism seems to exist in that arena too. But it seems fair to say that
few parents, irrespective of their political or religious views, would
agree that the federal government should intercede in how they raise their
own children. In general, parents have access to a wider variety of Internet
access controls than controls over cable television or the movies. Additionally,
most children who live in environments in which their parent slack access
to Internet protection likely also lack the resources to acquire computer
technology and Internet access. Is Congress intruding into the parental
sphere in banning “indecent” Internet communications?
Proceeding further, the courts have generally
given the federal government wide latitude to control what can be said
or shown over the commercial television “airways.” We have all probably
heard of the FCC’s ban of “indecent” speech and the “seven dirty words”
of George Carlin or the antics of Howard Stern. But, the commercial television
airwaves flow almost inexorably into everyone’s home, with little more
effort than the flick of a dial. The Internet is something that most of
us must buy access to and which we then choose to surf on our own. And
does the government really have the right to tell parents what books and
magazines they can let their children read at home or what television programs
or motion pictures they should let their children watch?
If the answer is, “yes,” then how much
stretching does it take to extend government control so as to encompass
notions of social or philosophical or religious tutelage?
A complex legal and societal problem indeed!
To recap, if the Internet is akin to commercial network television and
if the government can constitutionally restrict the menu of offerings there,
then why not the Internet? But, the Internet is different, in lots of ways.
And, what does “indecent” mean anyway? “Pornography” and “obscenity” are
difficult enough concepts in their own right. Justice Potter Stewart of
the United States Supreme Court wrote in 1964: “perhaps I could never succeed
in intelligibly” explaining what it is. “But I know it when I see it”.
“Indecent,” whatever that means (Congress
itself did not define the term) must surely be something less offensive
than “obscenity.” Is it just, fair or even wise to penalize someone from
making available information which some would label “indecent” but which
few of us can even define?
These are among the issues that the courts
must decide in ruling on the legality of the Communications Decency Act
of 1996. Only time will tell the outcome. At least, though, the courts
are not quite as immediately influenced by current political trends as
legislators and their final decisions may be less emotionally passionate
and more deliberative.
We have the technology today to filter
access to users on interactive media. One simple way to is to put information
in the header describing the information that is contained in the transmission.
There would be standards for how the information would be described. The
application used to receive the transmission can be set to screen the unwanted
transmission based on the information in the header. The settings can be
protected by passwords. Using this technology the user would exercise control
of the information available on interactive media instead of the government
or network operators.
The CDA criminalizes “knowingly transmit[ing]
or mak[ing] available” information on interactive media that can be accessed
just as easily by wondering the isles of a book store. It also criminalizes”indecent” speech that is transmitted electronically between two consenting
adults. i.e. Email. The punishment for such a “crime” can be up to 2 years
in prison and/or a $250,000 fine.
The Communications Decency Act is unconstitutional
by banning speech that is protected by the First Amendment in a medium
in which the user is giving the ability to select what he or she does or
does not want to receive.
The government gives citizens the privilege
of using the internet, but it has never given them the right to use it.
If we have a “Constitution” and, supposedly,
a “First Amendment”- why is the Government using legislation to stop us
from expressing ourselves? We seem to be a ironic and paradox country.
We didn’t want to be the first to use nuclear weapons and the atomic bomb,
but were the first and, so far to present day, the last to use them.
