FEBRUARY 15, 1996
The new Telecommunications Bill bans the dissemination of indecent materials to minors. The law requires online publishers make an effort to ensure kids don't receive pornography over the Internet. Opponents of the ban feel First Amendment rights are being violated and say software is already available for parents to block out material they find offensive. Elizabeth Farnsworth moderates a debate between supporters and detractors of the Communications Decency Act.
ELIZABETH FARNSWORTH: Yesterday, Vice President Al Gore celebrated the launch of the computer era by firing up the first electronic computer developed 50 years ago. That project was the spark that ignited today's Internet explosion. But the proliferation of computer services has also led to an explosion of concern over government regulation and free speech in cyberspace. The Telecommunications Bill which President Clinton signed into law last week contains a provision, the Communications Decency Act, which imposes criminal sanctions on anyone who makes indecent material available to children on public computer networks. Penalties range from fines of up to $250,000 to jail sentences as long as two years. Supporters of that provision say it will keep pornographers and pedophiles from preying on children who use personal computers. But some Internet users and free speech advocates say the provision goes too far, pointing out that software is already available for parents who want to block material they find offensive. Last week, users of the World Wide Web, the popular Internet service, protested all over the country by switching to a black background on their Web pages. Also last week, the American Civil Liberties Union filed a lawsuit in Philadelphia, seeking to strike the entire section of the Telecommunications Bill banning dissemination of indecent materials to minors. ACLU Legal Director Stefan Presser explained the organization's objections.
STEFAN PRESSER, ACLU: We as adults in the United States want not, when we want to talk about serious political, or religious, or scientific issues, have to talk in a way that does not offend someone who's under 18. It's that simple.
ELIZABETH FARNSWORTH: And on another front in Congress last week Democratic Senators Patrick Leahy and Russell Feingold filed a bill which, if passed, would repeal the indecency provision. Yesterday, the Clinton administration submitted its arguments against the ACLU suit, saying that the ban on indecent material was constitutional and should be upheld. Late this afternoon a federal judge in Philadelphia issued a temporary restraining order blocking enforcement of the indecency provision of the Telecom Bill. For more on all this, we turn to Jerry Berman, executive director of the Center for Democracy and Technology, a non-profit public policy and research group dealing with interactive media, and Cathy Cleaver, a lawyer with the Family Research Council, a public policy organization that focuses on family issues. Welcome to both of you. Mr. Berman, what does this decision in the court mean? Where is the law right now?
JERRY BERMAN, Center for Democracy and Technology: What the court is saying is this law can't be enforced right now because the ACLU and others who brought this lawsuit have made a prima face case before the judge that it raises significant, that the statute raises significant problems under the First Amendment, and that it has a potential chilling effect on the free speech rights of adults on the Internet.
CATHY CLEAVER, Family Research Council: Well, I think that's going a little too far. What the judge said is that he wants to refrain--have the Department of Justice refrain from prosecuting until he hears oral argument from both sides. There's a lot of material that was filed in this case, inches of exhibits and very long pleadings, and so the judge wants to delve into this and really examine the, the briefs in this case. And so he's going to need some time to do that.
MR. BERMAN: Well, he didn't have to restrain the Act. He could have allowed it to go forward. What he's saying is that it raises significant constitutional issues, and I'm not going to let it be enforced right now. So, in all honesty, I think Cathy raises important points, but the, but the judge, this is the beginning of a long, arduous effort before the courts which we think is going to decide really how the First Amendment applies in cyberspace.
ELIZABETH FARNSWORTH: Okay. Let's go into the issues now. Why do you think this is necessary? What is there in cyberspace on the Internet or on the various computer services that needs to be controlled, regulated?
MS. CLEAVER: Well, there's nothing now before this act that would prevent an adult from spending the equivalent of "Playboy" or "Penthouse" to a child, either through E-Mail or posting it on a teen chat room, sexually graphic material. I mean, we're not talking about, unlike what the ACLU says, political or scientific material. This is patently offensive sexual material.
ELIZABETH FARNSWORTH: And this is material that you couldn't sell to somebody that age in a, in a magazine store?
MS. CLEAVER: Absolutely. In fact, couldn't make available to a child in any other media. The question becomes: Do we exempt adults in cyberspace from the responsibilities they bear to keep pornography from kids in every other media? There's no compelling reason why we should have free reign to do this to kids in cyberspace.
ELIZABETH FARNSWORTH: But it's more than "Playboy." It's even more graphic than "Playboy," right? Some of the material--
MS. CLEAVER: It's awful, and much more graphic.
ELIZABETH FARNSWORTH: --I actually clicked on and looked once. It was pretty graphic stuff.
MS. CLEAVER: That's right. And nobody disputes--even Jerry will admit that it takes a few clicks of a mouse for a child now to get to the most graphic, the most violent, abusive mostly toward women, I might add, pictures of pornography, and it just makes sense, and it is also constitutional, we believe, that adults cannot send this material or make it available to children.
MR. BERMAN: Let me be clear. Obscenity, child pornography, they're illegal under the law. What this statute does is ban the communications of "indent materials."
ELIZABETH FARNSWORTH: Define that, please.
MR. BERMAN: Define that. Well, it's--
ELIZABETH FARNSWORTH: What the law says.
MR. BERMAN: --it's any description of, of sexual organs, any description of sexual activity.
MS. CLEAVER: Not any description, patently offensive descriptions.
ELIZABETH FARNSWORTH: The word is patently offensive--
MS. CLEAVER: Right.
MR. BERMAN: Patently offensive.
ELIZABETH FARNSWORTH: --depictions or descriptions of sexual or excretory activities or organs.
MR. BERMAN: But that has been held to cover the seven dirty words.
MS. CLEAVER: Only repeated.
MR. BERMAN: Please, don't interrupt me. It's held to cover the seven dirty words.
MS. CLEAVER: Got you catch you, Jerry.
MR. BERMAN: It's been held to cover such as "Catcher in the Rye," or "Fanny" or--
MS. CLEAVER: Not true.
MR. BERMAN: --Ulysses--
MS. CLEAVER: Not true.
ELIZABETH FARNSWORTH: Okay. Well, let's stop right there a minute. Catcher in the Rye, a book, could Catcher in the Rye be put up onto the Internet and I could download--a child could download it somewhere? You say this would make that impossible?
MR. BERMAN: This statute would make it impossible for adults to communicate it to adults on the Internet unless they had passwords pinned, credit cards, we don't require credit cards at book stores, we don't require credit cards--
ELIZABETH FARNSWORTH: You mean, unless they had something that would make it impossible for a child--
MR. BERMAN: Impossible for a child to gain access, so the result is to reduce communications on the Net to that which is only fit for children.
ELIZABETH FARNSWORTH: Okay. Ms. Cleaver, do you agree with that?
MS. CLEAVER: Absolutely wrong. Absolutely wrong.
ELIZABETH FARNSWORTH: What do you think the bill says?
MS. CLEAVER: The bill addresses pornography and only pornography. The word "indecent" is--has been a word that's been around in our laws for about 50 years. And it simply means that kind of pornography that it's legal for adults to trade in but it's not legal for adults to give to children. So we're talking about pornography. We're not talking about great literature or Shakespeare, Ulysses, Joyce.
ELIZABETH FARNSWORTH: What about Mr. Berman's point that it would be--how would somebody who is putting something on the Internet meant for adults be sure that it wouldn't get to children?
MS. CLEAVER: Well, good question. In fact, the law doesn't require them to be absolutely sure. The law requires simply that you take a good faith step to make sure that kids do not receive the pornography that you're distributing or that you're creating, good faith. And if you're acting in good faith and a child happens to be particularly industrious and gets through, you're not going to be held liable under the law. It's simply asking for people to be responsible and take good faith steps.
ELIZABETH FARNSWORTH: I'll come back to you. Let me get one more thing straight. How would this be enforced?
MS. CLEAVER: It would be enforced just like--
ELIZABETH FARNSWORTH: Under the law.
MS. CLEAVER: --every other pornography law is enforced. There's not going to be mass prosecutions everywhere. It's simply going to set the ground rules for the protection of children and women, I might add. And the most egregious offenders probably will be those that are prosecuted by the Department of Justice. But there's no new appropriation for cyber police or none of that. That's all scare tactics. This is simply setting the ground rules and saying what adults cannot do, and that's exploit children.
MR. BERMAN: We tried to limit--
ELIZABETH FARNSWORTH: Mr. Berman--
MR. BERMAN: --this statue to obscenity and child pornography. The Christian Coalition pushed for--to reach indecent materials. That can be broadly construed. Cathy is not defining what a prosecutor is going to do around this country. She is not--she does not enforce the law.
ELIZABETH FARNSWORTH: You're saying that some prosecutors, that there is legal precedence for some prosecutor--
MR. BERMAN: There are communities in this country--
ELIZABETH FARNSWORTH: --using indecency in ways that would go beyond pornography.
MR. BERMAN: There are communities in this country which think that Catcher in the Rye is indecent, or that Ulysses should not be available, and Cathy cannot guarantee that they will not be prosecuted. The only way that you're going to find out whether you're going to jail under this statute or protected by the First Amendment is after a jury trial, and it's a jury that decides whether those defenses apply. That's why this judge, I think, has ruled, held up a restraining order here, because it is very difficult. The chilling effect on, on the millions of people who are using computers and putting information out is considerable. They don't know what the state of the law is. They don't know whether they can talk about safe sex or talk about gay--or talk about--
MS. CLEAVER: Well, that is primarily because--
MR. BERMAN: --abortion.
MS. CLEAVER: --groups like yours are spreading this misinformation. They should not talk in a pornographic way or show pornography to kids. If they don't do that, they're relatively safe. Now, the interpretation of this law has to pass the straight-face test, and whether there's going to be some community that wants to ban Catcher in the Rye is irrelevant. The law won't uphold that kind of interpretation.
ELIZABETH FARNSWORTH: What about the filtering system? There were some suggestions that various online services, and I gather that some have it right now, produce software which would allow for filtering.
MS. CLEAVER: Right.
ELIZABETH FARNSWORTH: Parents could put it on their machines and then kids couldn't get it. It'd be a little like the V-chip.
MS. CLEAVER: Right.
ELIZABETH FARNSWORTH: What do you think about that?
MS. CLEAVER: Well, those are certainly helpful, and we encourage that, and parents using any means within their control to try to protect their kids. But the fact is that doesn't mean we absolve adults and say you can make every effort you want to to exploit these children, and we're just going to leave parents to themselves. Frankly, parents have asked us and other groups. We need more than this software; we need government legal disincentive for exploitation of our children through pornography.
MR. BERMAN: We need Congress and our government to find the most appropriate and effective means to help our children.
ELIZABETH FARNSWORTH: What do you think they would be?
MR. BERMAN: Recently, when Congress dealt with TV violence, they didn't pass a new violence statute censoring it. They said put in a V-chip, give parents the option to choose what they think is too violent for their children. What is interesting is that the V-chip doesn't even exist. On the Internet, Surf Watch, Net Nanny, there are a number of technologies which are available. You can get it from Compu-Serve or from America Online.
ELIZABETH FARNSWORTH: That's one of them.
MR. BERMAN: Cyber Patrol. It's given free to any Compu-Serve subscriber. You put it up on your computer, and it blocks all adult sites. In fact, it blocks gambling. It blocks violent material. It blocks how to make a bomb. It has all kinds of--and if you are--it's one click of a button--and if the parent isn't very smart, it's, it errs on the side for the child, because it, it starts out with everything blocked, and if you want to unblock it, a parent has to become a little smart. So I think that's a very important control here, and why we think the statute in this case is unconstitutional, because these technologies are available.
MS. CLEAVER: Well, as I said, I mean, the technology is fine, and it's a good help for parents, but there are also online manuals on how to get around blocking devices. We need a legal disincentive to bring cyberspace in line with every other law that we have that addresses every other kind of media.
ELIZABETH FARNSWORTH: The problem is that the computer is, is print, video--
MS. CLEAVER: Right. Right.
ELIZABETH FARNSWORTH: --a telephone--it's gone beyond one sort of media, right?
MS. CLEAVER: Right. And this law is tailored to address that very issue. This is not a reproduction of the broadcast medium, and people ought to stop talking about that.
ELIZABETH FARNSWORTH: One second.
MR. BERMAN: The indecency standard comes from television, where you have a captured audience, and there are no alternative--
MS. CLEAVER: Dial-a-porn, Jerry.
MR. BERMAN: --no alternative means to, to control content for your children. This is different.
ELIZABETH FARNSWORTH: Thank you both very much.
MS. CLEAVER: You're welcome.