Censorship Of The Net Essay
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As a professional Internet publisher and avid user of the Internet, I have become concerned with laws like the Communications Decency Act of 1996 (CDA) that censor free speech on the Internet. By approving the CDA, Congress has established a precedent which condones censorship regulations for the Internet similar to those that exist for traditional broadcast media. Treating the Internet like broadcast media is a grave mistake because the Internet is unlike any information medium that has been created.
My concerns about Internet censorship prompted me to write "Internet Censorship is Absurd and Unconstitutional." In the essay, I outline why I believe that the Internet should not be censored in any way for two reasons. First, any law advocating censorship of the Internet is too broad and unenforceable on this global information medium. Second, Internet censorship is a breach of First Amendment rights for those users residing in the United States. The essay will provide insight into why self regulation is the only viable solution to the problems that have and will be presented to the Internet.
Should it be illegal to publish literature with "indecent" content on the Internet but perfectly legal to publish that same work in print? This question has spawned the debate over Internet censorship, which is currently raging in the United States Congress as well as in other political forums around the world. The question as to whether the Internet should be censored will continue to be debated for many years to come. As with any political topic, the debate over Internet censorship has its extremes. Many proponents of Internet censorship want strict control over this new information medium. Proponents of Internet censorship such as Senator Jim Exon (D-NE), co-author of the Communications Decency Act (CDA), are in favor of putting strict laws into place regulating the Internet in order to protect children: "The Decency Act stands for the premise that it is wrong to provide pornography to children on computers just as it is wrong to do it on a street corner or anywhere else" (Exon). These proponents suggest creating laws for the Internet similar to those now in place for television and radio. Those strongly opposing Internet regulations, such as the Citizens Internet Empowerment Coalition (CIEC), assert that the Internet is not like a television and should not be regulated like one. Both sides base their respective arguments on how they view the new information medium. Though the laws that Congress are proposing to regulate the Internet are well intentioned, I strongly believe that the Internet should not be censored because any law encroaching on the people’s right to free speech is a obvious breach of First Amendment rights and because laws limiting Internet speech are too broad and unenforceable on this global medium.
To understand why legislators are attempting to censor the Internet despite the fact that it is absurd and Unconstitutional, one must first understand how the Internet came to be and how it conceptually works. According to Internet historian Dave Kristula, the first inklings of the Internet began in the United States in 1969 as a network of four servers called the APRANET. ARPA (the Advanced Research Projects Agency), a division of the Department of Defense, created the ARPANET for military research so that the information on the network would be decentralized and could survive a nuclear strike. The network continued to grow in size and speed as technology increased over the next two decades. Standards began to set in such as the TCP/IP protocol for network transmission of data. By 1990 the HyperText Transfer Protocol (HTTP) had been created to standardize the way in which Internet documents are sent and received (Kristula).
By 1994, the APRANET was disbanded, and the Internet became a public network connecting more than 3,000,000 computers together worldwide. Commercial organizations began to offer services over the Internet such as online ordering of pizzas (Kristula). At present, millions of companies are now online offering products and services such as software, hardware, books, games and adult oriented photographs. Though estimates vary, the consensus is that the amount of providers and users of the Internet has nearly doubled each year since 1987 (Kristula). Since the Internet grew into the public eye so fast, many people were caught off guard and concerns began to mount.
The unregulated flow of information that the Internet provides created concerns with parents and politicians beginning in the early and middle 1990’s. Adult oriented web sites such as the Playboy web site prompted organizations such as Enough is Enough, a non-profit, non-partisan women’s organization, to lobby Congress for legislation protecting their children from adult oriented content. Bills such as The Protection of Children from Computer Pornography Act of 1995 (PCCPA) began to appear before the House and Senate. In her testimony before the Senate, Dee Jepsen, Executive Director of Enough Is Enough, explained why her organization feels that pornography should be censored on the Internet through the PCCPA:
…women speak with a special authority on the issue of pornography—for we, and our children are its primary subjects…and its primary victims. Pornography demeans and degrades women, victimizes children and ruins men. It contributes to domestic and spouse abuse, rape, incest and child molestation. And a great share of it is not protected speech, any more than libel, slander or false advertising are protected speech; therefore, it is not a 1st Amendment issue. It is not legal material. Many Americans do not realize this fact. (Jepsen)
It should be noted that Jepsen’s intentions are much broader than just censorship of pornography on the Internet. She wants to see pornography censored on a much broader spectrum, including traditional print. Jepsen and her organization are attempting to use the Internet as their model for pornographic censorship.
Though the PCCPA was not realized itself, the organization was successful in lobbying for another similar bill co-authored by Senator Exon named the Communications Decency Act of 1996 which passed as part of the Telecommunications Act of 1996 (Telcom Act) and was signed into law by President Bill Clinton. The CDA allows the government to regulate and censor speech on the Internet as explained by James Plummer, writer for the Consumers’ Research Magazine:
The CDA penalizes not only people who transmit or "make available" "indecent" and/or "patently offensive" material to minors, but also those who "knowingly permit any telecommunications facility under [his] control to be used for any activity prohibited." What does this mean? In effect, it means that your Internet Service Provider (ISP) is legally liable for anything you email, post to a newsgroup, or put on a web page. (Plummer 33)
The passage of the CDA inspired new organizations such as the Electronic Frontier Foundation (EFF) and the Citizens Internet Empowerment Coalition (CIEC) to form in order to protect free speech and commerce on the Internet. The CIEC challenged the CDA on the grounds that "the Internet is a unique communications medium, different from traditional broadcast mass media, which deserves broad First Amendment protections" ("The Internet Is Not A Television"). In conjunction with the ACLU and a breadth of companies representing the computer industry such as Microsoft and America Online, the CIEC challenged the CDA in federal court on the basis that it violates First Amendment rights and is unenforceable:
By imposing broadcast-style content regulations on the open, decentralized Internet, the CDA severely restricts the first amendment rights of all Americans and threatens the very existence of the Internet itself. Although well intentioned, the CDA can never be effective at controlling content on a global medium, where a web site in Sweden is as close as a site in Boston. The CIEC case is based on the argument that the only effective and constitutional way to control children’s access to objectionable material on the Internet is to rely on user control. ("The Internet Is Not A Television")
As defendants in the CDA case, the Justice Department argued that the CDA is necessary because "The Internet threatens to give every child a free pass into the equivalent of every adult bookstore and every adult video store in the country" (Mattos). Other proponents of the CDA such as President Clinton believe the bill is Constitutional: "I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this Act to prevent children from being exposed to objectionable material transmitted through computer networks" (Clinton). The three judge panel that heard the CDA case unanimously disagreed. In a 175 page decision, the federal judges of the U.S. District Court for the Eastern District of Pennsylvania found the CDA Unconstitutional on the basis that it violates the First Amendment right to free speech and the Fifth Amendment right to due process. In the written decision, Judge Ronald L. Buckwalter asserts that:
It is, of course, correct that statutes that attempt to regulate the content of speech presumptively violate the First Amendment…That is as it should be. The prohibition against Government's regulation of speech cannot be set forth any clearer than in the language of the First Amendment. ("American Civil Liberties Union et al v. Janet Reno")
Concurring with Judge Buckwalter that the CDA is Unconstitutional, Judge Stewart Dalzell wrote:
…the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. ("American Civil Liberties Union et al v. Janet Reno")
In response to the decision, the Justice Department immediately appealed the decision to the Supreme Court where arguments were heard in March of 1997.
The cause of the confusion over whether the Internet should be censored was fully demonstrated in the Supreme Court hearing on the CDA. The confusion is caused by a general ignorance of what the Internet actually is. This general ignorance regarding the Internet was noted by Time reporter Jenifer Mattos in her article on the CDA Supreme Court hearing in which the nine justices were constantly searching for a real-world analogy that they could use to justify their decision. For example, Justice Sandra Day O’Connor attempted to quantify the Internet with a real-world analogy by calling it a public arena "much like a street corner or a park." (Mattos). Justice Stephen Breyer asserted that the Internet "is very much like a telephone" and that the CDA could "make large numbers of high school students across the country guilty of federal crimes" for having online conversations about their sexual experiences (Mattos). Though these analogies are roughly accurate, the Justices are going about quantifying the Internet in the wrong way.
The Internet is unlike any information medium in history. Though there are many similarities between the Internet and other means of communications, the free flow of information that the Internet provides makes it a completely unprecedented information medium. Unlike television and radio, the Internet affords users the capacity to access a breadth of information beyond just a channel-changer with only a limited number of stations. The capacity of the Internet is only limited by those who use it. Unlike traditional print media like the newspaper, the Internet is relatively cheap and widely accessible with no red tape. With a computer, network connection, and the proper software, anybody can become a web publisher. There is virtually no limit to how much content can be published on the Internet, whereas newspapers are limited by physical costs such as the cost of paper. The Internet is truly an unprecedented information medium and should be treated like one.
It is apparent with the passage of the CDA that many legislators do not realize that laws which already exist also apply to the Internet. For instance, child pornography laws that exist on the federal, state and local levels also apply to the Internet. One such example occurred when America Online user John Delmarle was sentenced to three years’ probation and six months of home confinement for distributing "sadistic conduct" of young children through the Internet (Whitmer). In a similar case, Bently Ives, president of Webb World was arrested and charged with possession of child pornography. Ives was charged under the following state law:
Under Texas law, it is a felony to knowingly possess pornographic pictures, videos, slides, or negatives featuring minors. It is also a misdemeanor to promote or possess "obscene" material, which is defined as "patently...
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