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FRC's Cathy Cleaver bashes CDA ruling, online "anarchy"
---------- Forwarded message ----------
Date: Mon, 30 Sep 1996 07:49:55 -0700 (PDT)
From: Declan McCullagh <[email protected]>
To: [email protected]
Subject: FRC's Cathy Cleaver bashes CDA ruling, online "anarchy"
This is a wonderful article by the Family Research Council's Cathy
Cleaver. Her stategy: Rant about porn, rant about children. But ignore
that the Internet is not radio or television so different standards
should apply. And ignore that another three-judge panel in NYC came to
similar conclusions as the Philly ones did.
Obviously, the largely Bush- and Reagan-appointed Federal judiciary
has been brainwashed by computer geeks. Or perhaps the judges, unlike
Ms. Cleaver, actually logged on once or twice.
-Declan
************
http://www.frc.org/townhall/FRC/perspective/pv96i3pn.html
CYBERCHAOS: NOT FIRST AMENDMENT'S PROMISE
by Cathleen A. Cleaver, Esq.
The Department of Justice has announced that it will appeal to the
Supreme Court the recent Philadelphia federal court's ruling against
the Communications Decency Act. That appeal is the right thing to do,
and here's why.
Not long ago I debated Bob Guccioni, publisher of Penthouse, on the
merits of restricting computer pornography and the Philadelphia
ruling. Not surprisingly, he was elated by the three-judge panel's
decision to strike the indecency provisions, the effect of which was
to give a computer pornographer more "free speech" rights than any
other speaker in any other forum. For the first time in the history of
our country, a porn purveyor may intentionally show sexually explicit
pictures to a child without legal jeopardy -- provided the purveyor
uses the Internet. First in line to challenge the CDA was, of course,
the ACLU and its cyberclones, followed by CompuServe, America Online,
and others with a huge financial stake in the unenforceability of the
CDA, like Playboy and Penthouse. Guccioni may finally claim the
consumer market share which he has heretofore been denied.
Not only did the Philadelphia panel strike provisions prohibiting
adults from posting sexually explicit materials in public areas of the
Internet that children frequent -- like teen chat rooms -- but it also
struck the prohibition on e-mailing a Penthouse centerfold (or the
like) directly to a specific child who is known by the sender to be a
child. In the words of the Department of Justice: "Never before in the
history of telecommunications media in the United States has so much
indecent (and obscene) material been so easily accessible by so many
minors in so many American homes with so few restrictions."
To say the ruling is flawed is a double understatement. Not only is
the decision based on legal theories directly contrary to Supreme
Court precedent and incorrect assumptions about the capabilities of
Internet technology, but it is less a ruling than a trio of separate
opinions. Each judge took his turn chiding Congress for daring to
inhibit the liberty of cyberspace pioneers, however ruthless, in the
interest of children and the greater cybercommunity. Highlights from
the lengthy trilogy include conclusions that it is "either
technologically impossible or economically prohibitive" to comply with
the CDA, that the term 'indecent' is altogether too vague, and that,
"just as the strength of the Internet is chaos, so the strength of our
liberty depends upon the chaos and cacophony of unfettered speech."
These conclusions defy fact, law, and logic, respectively.
Given that some on-line pornographers currently screen and restrict
children from their sites, it cannot be said that compliance is
impossible. Moreover, new technology is being developed at dizzying
speed to address a variety of Internet challenges, such as consumer
transaction security and the protection of property rights of amateur
musicians who exchange their songs, making it all the more evident
that it is really lack of will and not ability which makes Internet
advocates cry "foul." As to expense, this callous court complains
about the economic burden the CDA would impose on distributors of
pornography, while finding it good and proper for parents alone to
incur the costs, however great, of protecting their children. Outside
the sacred realm of cyberspace, distributors of pornography routinely
incur expenses to shield children. To cite just one example, "blinder
racks" must be purchased and installed at newsstands so that children
do not see offensive sex magazine covers. This economic burden flows
directly from the legal responsibility these distributors bear to
shield this material from minors. Software blocking programs, on the
other hand, are initially expensive for parents, need frequent
updating (at considerable expense), are easily circumvented by
computer-savvy kids, and are simply incapable of screening much of the
pornography. Surfwatch, the leading software blocker, admitted in the
CDA hearing to missing up to 800 sexually explicit sites each month!
Moreover, it goes without saying that a software blocking program can
only work on a family's home computer where it is installed. What
happens when the kids go next door or, for that matter, to the public
library? The American Library Association proclaimed in the
Philadelphia court that, as a matter of solemn principle, it will
never employ software screening programs in its libraries' computers
-- not even when children use them. This to-hell-with-children
sentiment is reflected by the judges and echoes throughout their
opinions.
Chief Judge Sloviter's opinion even concludes that for "content
providers . . . to review all of their material" to determine
which of it is sexually explicit is surely "a burden one should not
have to bear." What? The content provider is in the best position
to determine whether his material contains patently offensive
depictions of sexual or excretory activities, and that is why our laws
have always required him to do just that. The allocation of this
burden to the speaker, as opposed to the consumer of the speech, not
only carries the weight of unanimous legal precedent, but also has the
benefit of being practical. It is virtually a truism to say that, as
between speaker and consumer, the speaker is in the better position to
know the content of his speech. Judge Sloviter would remove a
reasonable burden from content providers and replace it with the
enormous and nearly impossible burden on parents to first locate, then
evaluate, and then block pornographic material in an effort to protect
their children.
Their quarrel with the indecency standard reveals that the judges are
either ill-informed or ill-intentioned. An indecent communication is
one "that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards, sexual or
excretory activities or organs." This definition has been consistently
upheld in every case in which it has been reviewed, including at the
Supreme Court, which, most recently in the cable pornography case of
Denver Area Educational Telecommunications Consortium, Inc. v. FCC,
held the standard to be "not impermissibly vague." As if to justify
their awkward conclusion, the court lists as examples of "threatened"
speech material which simply could not fall within the definition of
indecency, such as discussions of recent movies or ancient Indian
statues or articles about human rights violations. To serve their end,
the judges conveniently, but not subtly, ignore the requirement that
the materials be evaluated "in context." No court has ever construed
this standard to encompass, without any consideration of context, all
material of literary or artistic value that is somehow related to
sexuality.
Not to be topped, Judge Dalzell proclaims: "Any content-based
regulation of the Internet, no matter how benign the purpose, could
burn the global village to roast the pig." Really? What about fraud --
may we not protect consumers in cyberspace? May we not ban child
pornography or enforce copyright violations on-line? Would these
content-based regulations burn the village, too?
If the First Amendment's promise to this new technology is indeed
chaos and anarchy, then perhaps Judge Dalzell is right. But before we
too quickly agree with this visionary from the federal bench, we ought
to ask ourselves how we have survived and thrived as a democracy for
two centuries upon the bedrock of ordered liberty, the enemy of chaos
and anarchy.
The Supreme Court ought to roundly denounce this federal panel's
decision. To affirm it would be to rob our children of the opportunity
to participate in this great new communications medium, or worse, to
sacrifice them to perversions and excesses for the convenience and
pleasure of the worst malefactors on-line -- in effect, to preserve
the pornographers' new found sanctuary known as cyberspace.
-- 9/9/96
Cathleen A. Cleaver, Esq. is Director of Legal Studies at the Family
Research Council, a Washington, D.C.-based research and educational
organization. Miss Cleaver has extensive experience in pornography
litigation and legislation.
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