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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.




   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  
   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  
   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.