Commentary and hyperbole concerning the recently enacted Communications Decency Act of 1996 (CDA) fill the media. You may have heard that you can no longer talk about breast cancer or birth control on the Internet. You may have heard that the CDA is a law that protects our children from pornography.
You may have heard many of these things and much more.
This article is a little different from most of the other material available on the CDA. It will walk you through part of this complex statute and discuss some constitutional issues that arise. Consider it a CDA primer for non-lawyers by a lawyer. As a primer in an intricate legal area, this article raises more questions than it answers. My intent is to stimulate your thoughts regarding some of the relevant constitutional and legal issues.
The First Amendment to the United States Constitution Is the Beginning of the Legal Analysis
Congress shall make no law...abridging the freedom of speech, or of the press...
That is all that our Constitution says about freedom of speech and the press; just fourteen words. And, of course, "no law" means "no law." Right? Wrong! Allow me to explain.
The First Amendment has no exceptions for laws against yelling "fire" in a crowded theater or inciting a riot. Yet, you instinctively know that you can't do these things. If you think of law as common sense, as modified by the legislature and courts, you're probably half way to a law degree. Yelling "fire" and inciting a riot are crimes because common sense says they MUST be crimes. Our society generally values life and safety (and what other things?) even more than freedom of speech.
When placed in the role of Constitutional interpreter, the courts act as lawmakers. Like legislators, courts make judgments that balance competing interests. Is the First Amendment or another competing interest of higher value? In the case of yelling "fire," the First Amendment is clearly not a defense to a charge of reckless endangerment. Society deems public safety more important than an individual's right to speak freely; most Americans are comfortable with this judgment, thus removing Americans from Mill's state of nature. The enforcement of the CDA and the Telecom Bill specifically hinges on this agreement between society and government. After all, if the theater is not on fire, it is impossible to think of any reasonable defense for anything positive coming from yelling "fire."
It is not, however, always so clear cut. Is the dissemination of graphic and explicit information about birth control to fifteen year olds always bad? No matter what your answer to this controversial question, one thing is clear-both affirmative and negative opinions are held by intelligent Americans. So do we pass a law that limits the right of Planned Parenthood to distribute their information? Does the First Amendment permit that law? Do Americans want still another exception to "Congress shall make NO Law...?" The next step then, is to deconstruct the CDA.
Some Problematic Statutory Language or You Can't Analyze a Statute Without Reading It
The CDA contains several principal criminal provisions which are the subject of the most controversy and constitutional scrutiny. If you violate any of them, you could be jailed for two years and fined.
This article only quotes portions of the statute for the sake of brevity and readability. The full text is in Title V of the Telecommunications Act of 1996. You can read it HERE.
One section prohibits and criminalizes the use of a "telecommunications device" to initiate "the transmission of any" material "which is obscene or indecent, knowing that the recipient of the communication is under eighteen years of age."
Another section makes it a crime to use "any interactive computer service to display in a manner available to a person under eighteen years of age, any" material "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs..."
What is "obscene or indecent" material? What is a "patently offensive" description of a sexual organ? Undoubtedly, you have your personal answer to each of these questions, but the second quoted section of the CDA requires that you measure your answer by your community's standard. Is your idea of patently offensive the same as your community's standard? How do you know?
And, not so incidentally, what is your "community?" Is it your school district, county, city, state or the usenet group you subscribe to most frequently? The CDA answers none of these questions. Is the CDA too vague? Is it constitutional to criminalize conduct when you cannot define what the crime is or how to measure a law's standard?
You now have some of the tools that you need to answer the first question raised by this article. Does the CDA prohibit the discussion of breast cancer or birth control on the Internet? Can you transmit a picture of a breast over the Internet as part of an educational piece on breast self-examination? Would that photograph of a breast be "patently offensive as measured by contemporary community standards?"
If you can answer these questions, then consider this: if you transmit an image of a breast from a place where you do not offend the community standard, and the person who receives the image is in a state where the contemporary community standard deems all nudity offensive, can a prosecutor from that state prosecute you because the image offended his community's standard?
It is a truism to say that the Internet knows neither political nor geographic boundaries. It sends requested information throughout the world. Must, then, all Internet information be acceptable to all possible users?
Proponents of the bill point out that many of the CDA's prohibitions apply only if a child receives the information. So maybe the CDA makes it acceptable to transmit information about breast self-examination to an adult, but not to a child. But how do you make information available to adults and not children on the Internet? The Internet information provider has no way to know who requests and receives information.
In the CDA's defense, it gives the information provider measures which it can use as a legal shield even if a child accesses information that is inappropriate for children. For example, the required use of an adult access code shields the information provider from liability. This still begs the question: Should the American government be in the business of regulating speech online and requiring adult access codes?
Let's go back to the birth control question raised earlier. Let's say you want to provide birth control information to teenagers. Further, you want to illustrate it with graphic pictures. Should that be illegal? Is it constitutional to make it illegal? Again, we come full circle. "Congress shall make no law..." What is your "contemporary community standard?"
And on and on it goes.
Yes, yes, I know that I haven't given you any answers. That's because the answers are not there to give. The CDA is on the books because a congressional majority and the President think that it's worthwhile policy, and that the courts can sort out the constitutionality and specifics.
The Supreme Court will ultimately settle the difficult questions raised by the CDA and its application to the Internet, but your informed answers are as valid as the Supreme Court's. After all, their answers are not divinely inspired; and you've probably been online longer!
The competing interests go right to our core-protecting our children from inappropriate material versus the First Amendment. Each individual needs to think long and hard about how much of the First Amendment they are prepared to relinquish. Remember, it started with "Congress shall make no law..." At least have an informed opinion before you agree to give up a piece of your freedom to speak. If this article gets you to think and read more about the Communications Decency Act and your individual rights, then visit the Web-life Forum or e-mail me.