Free speech is under attack -- again

Why we're challenging the new net censorship law.

By Salon Staff
October 22, 1998 11:00PM (UTC)
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The last time Congress tried to censor the Internet, via the Communications Decency Act (CDA) two and a half years ago, it banned people from transmitting "indecent" or "obscene" material to minors on the Net. That law was both impractical and unconstitutional in myriad ways, as the Supreme Court recognized when striking it down last year.

The CDA's demise marked a historic recognition on the part of the U.S. judiciary that the Internet is a powerful new medium whose uniquely democratic and participatory traits deserve the highest levels of First Amendment protection. In other words, the Supreme Court got what Net activists had said all along: This ain't TV, folks.


Now Congress has done it again. Buried among the thousands of pages of the omnibus budget bill President Clinton signed Wednesday is a little law called the Child Online Protection Act -- better known as CDA II. The Child Online Protection Act makes it illegal to distribute material that is "harmful to minors" on the Web without screening the age of site visitors. That sounds reasonable enough -- but we believe that the new law contains many of the practical inconsistencies and constitutional violations that doomed its predecessor. They are fewer and more complex than in the original CDA, though. That means the fight to defeat the new law -- in court, on the Net and in the press -- will be tougher.

The "harmful to minors" legal standard the Child Online Protection Act relies on is a narrower category of speech than the original CDA's "indecency." But, as defined in the House of Representatives' report on the bill, it still depends on "the average person applying contemporary community standards." On the Internet, this begs the question -- what average person, where? Whose community? In a medium as widely geographically distributed as this one, the moment you start relying on local community standards you risk letting the most conservative locale's standards dictate the rest of the nation's discourse.

In Reno vs. ACLU, the decision that struck down the original CDA, the Supreme Court ruled that efforts to regulate constitutionally protected online speech on behalf of a legitimate government interest -- like protecting children -- need to be pursued by the "least restrictive means." The text of the CDA II simply declares that its solution is just such a "least restrictive means" without exploring any alternative. It's stealth legislation that was simply tacked on to this week's voluminous budget package without benefit of extensive public debate.


Given the wide availability of Internet filtering software that individual users and institutions can install on their computers to screen out material that they deem objectionable or inappropriate for minors, it's hard to understand how lawmakers can argue that daily $50,000 fines and six months' imprisonment are "the least restrictive" approach. Filters aren't a perfect solution, either, but at least they go at the issue by leaving choice in the hands of individual users. (The law complains that such filters "have not provided a national solution" to the problem. Conservative legislators are typically all for individual rights and local control -- but when it's their pet issue that's at stake, some quickly find that only a "national solution" will do.)

Rather than relying on users to choose software that suits their filtering needs, Congress now wants information providers to screen users by age. The law's attitude is that this is a piece of cake -- but in truth the distributed structure of the Internet and the anonymous nature of most online information exchanges makes such screening both a difficult problem and a huge burden. A great many commercial pornography sites on the Web already attempt to screen visitors by requiring every user to pay a fee to a service like "Adult Check." That's good business for those services, all right, but it doesn't do a very good job of keeping clever kids away from porn sites. To require such screening outside of the porn business, as CDA II does, would inevitably reduce the variety of information available on the Internet -- and probably drive a host of smaller publishers out of business.

Nor will CDA II achieve its goal of making the Web pornography-free for kids, since it specifically exempts noncommercial sites from its rules. Vast troves of noncommercial dirty pictures have always been available on the Internet, placed there by individuals for their own private reasons rather than for profit. Furthermore, CDA II will have little ability to restrict the availability to U.S. Net users (and minors) of pornography distributed by people and companies abroad.


If the law isn't aimed at commercial porn publishers (who mostly obey its rules already) or at noncommercial sites, who's left? The main target appears to be commercial publishers of free-access Web sites that present sexual material some prosecutor somewhere might deem to be "harmful to minors." That includes -- among many others -- us here at Salon. We do not publish pornography. But we believe that sex, like the other subjects we cover, is an essential part of life, and as such deserves to be written about with honesty, humor and passion.

We know that the lawmakers who drafted the Child Online Protection Act say that their law is only aimed at honest-to-god pornography, and that all anyone has to do to comply with it is to collect a credit-card number from each visitor. Unfortunately, the law has no clear definition for pornography, and "we know it when we see it" isn't good enough.


If this law stays on the books, sooner or later some enterprising district attorney in a conservative community will go after a Web site with birth-control information, or a publisher of nonpornographic information for teens about homosexuality, or a Web magazine like ours that chooses to publish personal essays about sex (as in our new department, Urge). Meanwhile, these free sites will be required to build gates that demand a credit-card number to gain entry, even though they don't charge anything for access. The consequence will quickly emerge: a drastic curtailment of the Web's ability to function as an open marketplace of ideas.

For these reasons -- and because we hate seeing legislators waste their time trying to muzzle the Net when they should be attending to the economy, reforming campaign finance and otherwise cleaning up their own acts -- Salon today joins the American Civil Liberties Union, along with other Web publishers and online rights organizations (including the Electronic Frontier Foundation and the Electronic Privacy Information Center), in filing a challenge to the CDA II in federal court. You can find the full text of the complaint, and more detailed legal information, at the ACLU site.

We don't expect this court battle to be as straightforwardly won as the last round. The proponents of censorship have learned their lessons, and they have a better chance of achieving their goals this time. Alas, they won't accomplish a whole lot in the way of reducing the availability of pornography to children online. But they stand a good chance of spreading a big chill across the entire Web, muting the vast spectrum of voices that animates this still-evolving new medium.

Salon Staff

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