Cyberchaos: Not First Amendment's Promise

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 a 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 American Civil Liberties Union and its cyberclones, followed by CompuServe, America Online and others with a huge financial stake in the unenforceability of the CDA, such as 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, such as 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 online 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 that 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 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 work only 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 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 locate, evaluate and 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. vs. 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 that 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 online? 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 online -- in effect, to preserve the pornographers' newfound sanctuary known as cyberspace.

Cathleen A. Cleaver is director of Legal Studies at the Family Research Council, a Washington-based research and educational organization. She has extensive experience in pornography litigation and legislation. http://www.eff.org/~declan/fight-censorship/