Janet Reno vs the ACLU — 1997

Why do you see all that offensive stuff on the Web? Well, it has to do with a pesky little decision by the US supreme court in 1997. The story goes smething like this:

Communications Decency Act of 1996 (CDA) was passed into law by the Clinton administration allowed criminal penalties for anyone who:

“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.”

HOWEVER – the ACLU, representing DOZENS of US organizations (and not all of them part of the adult entertainment industry either) made the case that the CDA was 1) a violation of free speech and 2) so vague as to be either unenforceable, or, too easily interpreted and enforced in ways that could not be predicted – which was also a violation of the 5th Amendment (that’s the one that, among other things, guarantees anyone accused of a crime due process and the opportunity to defend themselves – it’s also the one all those cheesy law shows on TV are referring to when you hear someone say something like “I refuse to answer on the grounds that it might tend to incriminate me.”)

In the end, the 5th Amendment didn’t play a big role in the decision. In a 5/2 vote – the US supreme court decided that rulings that applied to broadcast media (governed by the FCC) did not apply to the internet, the same way they didn’t apply to cable TV. The CDA was overturned.

Even the dissenters – Judges Renquist and O’Conner – more or less agreed. They just wished – as many of us do – that there was technologically feasible way (server side or user side – preferably user side – and if you’ve tried any home filters you know they don’t work very well) to choose what you want to look at – rather than just stumble on it – or have your child stumble on it. Well – over a decade has passed and we still don’t reliable technology for this purpose.

Majority Opinion:

§223(a)(1)(B), §223(a)(2), §223(d) of the CDA are unconstitutional and unenforceable, except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overbroad. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply.

Minority Opinion:

Cyberspace is malleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and consequently, more amenable to zoning laws. This transformation is already underway. Cyberspace is moving … from a relatively unzoned place to a universe that is extraordinarily well zoned.

Too bad that wasn’t true – nor is it likely to be soon. The world is a big place – and people are funnier than anyone. How would we ever get people to agree on what was or was not “offencive” ? What about something obscene? Do you “know it when you see it”? Would the guy next door agree? How about some guy ½ way around the world?

Well – at least child pornography is obvious, right? Is it? How about those “performers” who look 12, but can prove they are 18? What about ANIMATED children? (That’s still being argued last I heard – personally I hope they find a constitutional way to outlaw it)

When it comes to child pornography, who are we trying to protect? It seems that the primary focus has been on potential child performers. But – if the performer is not a child – or not even flesh and blood, well . . .

Please don’t shoot the messenger.

I find this whole issue quite frustrating. So far, our Supreme Court has ruled that the right to free speech supersedes the right of people to not be offended. And – I agree, even when it makes me cringe.