TOPICS > Politics

Virtual Victory?

June 26, 1997 at 12:00 AM EDT


ELIZABETH FARNSWORTH: Cathy Cleaver of the Family Research Policy–Research Institute–coauthored a friend of the court brief in support of the Communications Decency Act on behalf of 26 members of Congress.

And Jerry Berman of the Center for Democracy and Technology organized the coalition opposing the act, including online service providers, newspaper editors, and libraries. Thanks for being with us. Jerry, are you satisfied with this ruling?

JERRY BERMAN, Center for Democracy and Technology: We have to be satisfied. There’s a fundamental victory for free speech, for the Internet, and for Internet users. It is the bill of rights for the Internet and for the medium in the 21st century. What is incredible is that all nine justices said this was a new medium, not to be treated like radio, not to be treated like television.

They’re saying it’s not pervasive; it doesn’t come into the home the way television does. The user goes to and picks their site. Contrary to your setup piece that says that this is easily available, the court found and we agree that you have to go places and pick sites and there are–many times they have warnings or they have identification.

The court also, I think, by giving such a clear ruling creates some breathing room for the Internet and allows us to focus on the real solutions.

They point out that these technology solutions also mentioned in your setup piece, the blocking technologies, the Surf Watch, the Cyber Patrol, are less–more effective, less restrictive, and we think that they’re out there and that we should be really moved in that direction to give users, empower users to protect and enforce their own family values consistent with the First Amendment.

ELIZABETH FARNSWORTH: And, Cathy Cleaver, what’s your reaction to the court’s action?

CATHY CLEAVER, Family Research Council: Well, obviously, we’re very disappointed that the court found fault with the provisions of the CDA, especially in the–in its practical results, what this means, of course, today, pornographic sites like Penthouse and Hustler can open their doors to children, with no legal ramification. In fact, they can even invite children into their sites and the law says nothing about that. So that is a terrible result.

But I want to say that, you know, we didn’t hate everything that happened today. One of the things that is a wonderful thing that happened is that the court reaffirmed the principle that Stuart mentioned that government does have a legitimate, important interest in protecting children from this kind of harmful material.

And any time the court says the government has this legitimate interest, what they’re talking about is this interest as expressed through laws. So what the court didn’t do–but the ACLU urged it to do–was to say that the only answer is software blocking devices; the court did not say that, in fact, came back again and again saying, in essence, if this law had been more carefully tailored, had been more narrowly drafted, then it could be constitutional; so, in essence, giving kind of a blueprint for the next round of legislation that we’re likely to see.

ELIZABETH FARNSWORTH: Let me just get one thing clear. You said it would open the door to these–Penthouse and other magazines, being on the Internet, that they’re already there, right?

CATHY CLEAVER: Well, I meant–

ELIZABETH FARNSWORTH: So it doesn’t change anything.

CATHY CLEAVER: –open their doors to children. Some of them–some of them and at some times, and this varied–decided to check I.D.’s and decided not to give free pictures away, or not to allow people to see free pictures, but, you know, there’s no incentive now, none at all, for them to be responsible and just to show their girly pictures only to adults.

JERRY BERMAN: I think that it is not a free-for-all on the Internet. Yes, there’s a red light district, but most of the commercial pornographers use credit cards and they’re charging for that, and so they’re there blocking. It is–these technologies are–go ahead–

ELIZABETH FARNSWORTH: Let me ask you about that. You said that it gives people time now to come up with other ways of dealing with this.



JERRY BERMAN: Well, there is, for example, Netscape is putting a–the PIC platform, which is a technology which allows for content to be labeled and for users to be able to screen out and choose content. That’s going into the Netscape browser, which means that 98 percent of people who surf the Web will be able to use a whole new technology.

ELIZABETH FARNSWORTH: Would that be–excuse me for interrupting–what–would it be sort of like a V-chip, where somebody could program a computer not to get certain kinds of information?

JERRY BERMAN: Yes, but unlike the V-chip, it doesn’t need to support one set of labels. It could be multiple labels all developed by the Family Research Council. If they wanted to put out a labeling system, and then I wanted to lead those labels at my home and get that material, I could.

I wouldn’t have to follow the Motion Picture Association labeling system or their labeling system. The PTA could have a labeling system. This is really out there. And today the administration announced that they are going to try and work with industry and our coalition, and we want to work with our coalition and work with the family organizations to make these–these user empowerment strategies very effective and user friendly.

That’s where we should be going, rather than spending another year in the trench, posturing about pornography on the Internet. The court really says get serious, hold hearings, get–and really focus on a solution. And I think the solution lies along these technologies.

ELIZABETH FARNSWORTH: What do you think?

CATHY CLEAVER: Well, Jerry, I’m glad you mentioned hearings because that is what I hear is going to be the next step; that Congress is going to conduct extensive hearings into this whole issue, and I think that the only result of these hearings can be the realization that contrary to my dear friend, Jerry, it’s very easy for children to get this material, and they are, in fact, sent the material unsolicited. I hear from parents all the time. So the issue is a little more complex than it’s presented.

ELIZABETH FARNSWORTH: Let me just ask you. So you would rather now try to have another law crafted, rather than do what Mr. Berman’s talking about?

CATHY CLEAVER: Well, I’ve always said why don’t we do both. We can empower users without giving up the right as a society to pass laws to ensure that pornographers are going to act responsible. They don’t have incentives to act responsible when there’s no law there.

Their incentives are money driven, and if they can make money off the children, they’re going to do it. We know that. So laws need to be in place to impose the kind of responsibilities these people aren’t taking on their own, and you know, technological advances can only help. Absolutely, they can help parents, and they can help industry.

JERRY BERMAN: We think these hearings will be very helpful because we did not have them with the Communications Decency Act–just ran through the Congress. This time around I think the industry will be able to show that there are many products available to users, that Internet service providers are bundling it with their service and giving it to users; that computers are shipping it with their product; that there’s a whole range of things that are going on while the V-chip is vapor-ware. It doesn’t–in computer parlance, it doesn’t even exist yet. So we think that there are real solutions out there.

ELIZABETH FARNSWORTH: What do you mean? I didn’t follow that.

JERRY BERMAN: Vapor-ware–people talk about having the V-chip for television, but Internet already has–


JERRY BERMAN: –blocking technology that works; that works on these sites; and the V-chip is–they’re still talking what will the rating system be and it isn’t built in anybody’s television set.

ELIZABETH FARNSWORTH: Okay, Ms. Cleaver, just specifically on technology for people out there looking for something, is there anything that you think really does help people deal with this problem now?

CATHY CLEAVER: Well, I hesitate to recommend specific brands, but I do always encourage parents to investigate. There are places they can go. The Enough is Enough Campaign has a wonderful site that they can give recommendations about what software is better than others, and they always are improving and changing. So that needs to be looked into by all parents, but the fundamental principle that I’d just get out here is the fact that the First Amendment has never stood for the proposition that adults have a right to speak pornographically, to show pornography to children.

That’s never been part of our First Amendment rights. I was happy to see the court not change the First Amendment and maintain that barrier, and laws can be built upon that, can be built upon government’s legitimate interest, interest in protecting kids, and upon the foundation that the First Amendment does not include this kind of right.


JERRY BERMAN: The court was very clear; regulation is not the way to go. They thought that regulation was the wrong way to solve the children’s–

CATHY CLEAVER: Except more narrowly tailored regulations.

ELIZABETH FARNSWORTH: Just before we go, Stuart Taylor, what’s your view on what the legal options are now?

STUART TAYLOR: Well, they did say–the tone of this is hostile to regulation; however, if for example Congress passes a narrow law that says commercial pornographers that are taking credit card numbers anyway ought to do their best to screen out minors to the extent that it’s feasible, I think that would probably be upheld. And somewhat more might be upheld.

The reason they may not go all the way to the Jerry Berman, let the parents and the private sector control, is concern that not all parents are resourceful and smart about it, and we need to protect kids against their parents too.

ELIZABETH FARNSWORTH: Okay. Stuart, thank you both very much too.