UPDATE June 12, 1996: The “Communications Decency Act” has been declared unconstitutional after a lengthy hearing and review. See the full text (70 pages, 250K) of the opinion at http://www.aclu.org/court/cdadec.html or discussion and analysis at http://www.ionet.net/~mdyer/decision.shtml
What’s Wrong With The Communications Decency Act?
(February 9, 1996) The First Amendment of the Constitution of the United States of America provides that Congress may enact no law which abridges “freedom of speech, or of the press.” The Supreme Court has interpreted this to mean that Congress may not prohibit speech merely because it offends some people; after all, Americans often offend each other, especially when discussing politics. Congress also may not impose restrictions that would reduce all discourse to the level of a child, or to avoid offending hyper-sensitive people.
In February 1996, Congress violated the Constitution of the United States by enacting the “Telecommunications Act of 1996,” which included provisions from the “Communications Decency Act” that outlaw any online communications which might be considered “indecent” or “patently offensive” to someone. (See the excerpts from the Act below.)
The law also expressly authorizes any online service or Internet service provider to censor any communications which it believes might be “objectionable” to someone, and removes all legal remedies otherwise available to those affected by that censorship. This amounts to an unlimited censorship license.
These provisions are designed to undermine free speech. And, although I’d like to blame this misguided law on the Republicans and their “Contract on America,” the truth is that about 90% of Congress voted for the law.
What can we do about it? Not much. Fortunately, theAmerican Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a lawsuit challenging the Constitutionality of the Communications Decency Act in federal court immediately after President Clinton signed the law. But until that suit is resolved, anyone whose message might be “indecent” or “offensive” risks criminal prosecution, and online service providers have unlimited discretion to censor any information which someone might consider “indecent” or “offensive.”
I find this law to be indecent and offensive to the American people, and to the tradition of free speech in this country. I don’t want obscene pornography to be available to children on the Internet, but that’s not what this law is about. The “Communications Decency Act” is about imposing broad restrictions on speech protected by the U.S. Constitution. It’s about stifling public debate on issues like abortion and birth control; it’s about barring access to art and literature. It’s wrong.
Making “Indecent” or “Offensive” Speech Illegal: Section 502 of the Telecommunications Act of 1996 amends Section 223(a) of the Communications Act (47 U.S.C. 201 et seq.) to read:
“Whoever (1) in interstate or foreign communications
“(A) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;
“(B) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
“shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
A new section 223(d) is added, which reads:
“Whoever (1) in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.”
This law appears to prohibit most messages about abortion or birth control.
Authorizing Censorship: Section 509 of the Telecommunications Act of 1996 adds a new Section 230 to the Communications Act (47 U.S.C. 201-230). New section 230(c)(2)(A) provides broad authority for censorship:
“No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”