What Does the Supreme Court's Decision on the Communications Decency Act Mean to You?
Recently, in a long-awaited, 7-to-2 decision, the United States Supreme Court ruled that parts of the Communications Decency Act of 1996 (CDA) which banned "indecent" and "patently offensive" speech from the Internet infringed on the First Amendment right to free speech. First Amendment advocates have hailed the decision as a victory, but what does it all mean?
Put simply, it means parents have to do their jobs.
Two parts of the CDA sought to protect our children from "obscene," "indecent" or "patently offensive" material on the Internet. The Court allowed the ban on "obscene" material to continue, but ruled that the ban on "indecent" or "patently offensive" material unconstitutional.
To fully understand the Court's ruling, you need to know a bit about some prior cases. The Supreme Court has long made it clear that while obscenity is not protected by the Constitution, sexual expression which is indecent, but not obscene, is protected by the First Amendment.
The definition of obscenity is a complex legal morass of unclear standards. For those of you who must know, I'll paraphrase it. If you'd rather skip the dry legalese, just skip the next paragraph.
There are three basic parts to the definition of obscenity. First, whether the average person, applying contemporary community standards, would find that the material, taken as a whole, would appeal to the prurient interest. (One dictionary definition of prurient is "having lustful ideas or desires.") Second, whether the material shows or describes, in a patently offensive way, sexual conduct as defined by a state law. Finally, whether the material, again taken as a whole, lacks serious literary, artistic, political or scientific value.
This definition raises many questions. For example, who or what's an average person when it comes to judging Internet material? Is it an average Internet user? And what's the applicable community and what are its standards when we're talking about the Internet, which has a worldwide reach? Is it a particular county, state, region, country, the community of cyberspace or what?
Over the years, the Court has carved narrow exceptions that permitted regulation of material on radio and television that might not be obscene to adults. The government relied on these exceptions in arguing to uphold the constitutionality of the CDA. The Court didn't buy in.
Like a Radio or Newspaper?
Conceptually, probably the most important aspect of the CDA decision is that it finally answered the question of whether the Internet will be treated like broadcast radio and television, or like newspapers. This is an important distinction because the government has highly regulated broadcasting, while newspapers have enjoyed the maximum protection from the First Amendment. The answer-the Internet will be treated like a newspaper.
The Court discussed some of the reasons why it had permitted broadcasting to be highly regulated but found these reasons didn't apply to the Internet. First, the Court noted that there was an extensive history of government regulation of broadcasting. Another factor was the scarcity of available frequencies when radio and television began which required the government to allocate that finite resource. Finally, radio and television came into families' living rooms and parents didn't have any reasonably effective way to pre-screen what their children watched.
Parents are Responsible
The Court was quick to acknowledge the government has a legitimate interest in protecting our children from potentially harmful materials and the Internet certainly has stuff that's clearly not appropriate for children. This ranges from things like adult pictures to chat areas where the conversation gets quite sexually graphic and where pedophiles have been known to lurk. (A chat room is a place where you can converse using typed messages to others who are online. These messages appear almost instantaneously, thus allowing for conversation.)
There's no question that the CDA sought to protect children from inappropriate material. The problem was the CDA did it in a way that prevented adults from sending and receiving large amounts of material that they were entitled to see.
One big reason the CDA was shot down was that it sought to regulate the content of speech with a very broad stroke. The court emphasized that adults have a constitutional right to send and receive "indecent" and "patently offensive" material.
The Court was troubled that: "Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. . . . Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise."
The Court also noted that currently available software suggests a reasonably effective method for parents to control what their children can access on the Internet will soon be widely available. What this means is you and I are responsible for screening, judging and controlling what our children see. That's really not a novel concept.
What it all Means
Reduced to its essence, the Court's ruling means that we will accord the Internet the same degree of First Amendment respect as this column. It means that I can say indecent things here and on the Internet and be judged by the same legal standards. If I cross the line into obscenity, all bets are off.
It means that we are recognizing the Internet and cyberspace as major providers of legitimate and important information for the next century. The Internet will be to the 21st Century what the printing press was to earlier ones.
Increasingly, we will turn to our computers first for information. This trend is already developing, and it will escalate as the technology evolves and the distinction between our basic information sources-computer, television, radio, and newspaper-blur.
Today, for example, CNN has a great Web site with in-depth information and even video about breaking events. The New York Times makes its content available on the Web, including its entire front page. Soon, your computer will be your television. Or is that your television will be your computer?
The point is that shortly these distinctions will have no more meaning than the difference between VHF and UHF television. (Assuming that your age is thirty or forty something, remember those funky special UHF dials on our TVs that made it almost impossible to tune into channels 14 and up?) Over time, the technology evolved to where, today, televisions handle the basic 81 broadcast channels seamlessly.
This is what will happen to the Internet and television very quickly. Soon, you won't really distinguish between Internet, newspaper and television content. The same appliance will deliver their content to you: your computer.
This is all the more reason for us, as parents, to assume responsibility for our children and what they view. Though, technology that helps us filter what our children see on the computer will become increasingly available and more effective at doing its job, parents should participate. What amazes me is how often my generation displays its unwillingness to supervise its children.
The Internet can and should be something you share with your kids. Find Web sites that you both enjoy, and enjoy them together. Sports, games, news, politics, and almost every other category of human thought are on the Web. If you don't know how to get there, let the kids teach you. They know.
The computer is not an electronic baby sitter. You shouldn't tuck it away in a child's bedroom, behind closed doors, where the kids can surf to their hearts' content in areas of the Net where they don't belong.
Don't you dare say, "But my VCR constantly flashes '12:00' because I'm electronically challenged and can't possibly learn how to use the Internet."
I don't buy it. It's your responsibility to learn. Would you let your children participate in a sport that you know nothing about? Would you let them play without taking the time to understand the risks and learning enough so that you know what safety equipment to require? I would hope that the answers to these questions are no.
Likewise, you must learn enough about the Internet so that you can supervise your children. It's, simply, your job, and "I'm electronically challenged" won't cut it.
You have no choice because the Supreme Court's decision on the constitutionality of the CDA means the government is not going to do your job for you.