Policing the Net
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JIM LEHRER: Now the battle over what is legal or illegal to post on the Internet. Elizabeth Farnsworth begins our coverage.
ELIZABETH FARNSWORTH: The Supreme Court explored cyberspace today. The nine justices heard oral arguments over whether the Communications Decency Act is constitutional.
The Act, called the CDA, was passed by Congress in 1995 and signed by the President in 1996 as part of the telecommunications reform bill. The CDA makes it a crime to transmit indecent material in cyberspace unless appropriate actions are taken to prevent access by anyone under age 18. Penalties range from fines as high as $250,000 to jail sentences of two years. Indecent is understood to mean patently offensive as measured by contemporary community standards.
The primary sponsor of the law, now retired Senator James Exon, wrote it after discovering what types of material were being transmitted on the Internet.
SEN. JAMES EXON, (D) Nebraska: I had a remarkable demonstration of what is readily available to any child with the basic Internet access. It is not an exaggeration to say that the worst, most vile, most perverse pornography is only a few click-click-click away from any child on the Internet.
ELIZABETH FARNSWORTH: Sen. Exon was talking mainly about sexually explicit pictures and stories. They’re available, along with a wide range of other material, on the Internet, the global network connecting millions of home and office computers. People with access to the Internet can see just about anything these days, from information about the re-release of “Star Wars” to the centerfold in the current “Playboy.”
Advocates of the law say the centerfold and even more sexually explicit material are easily accessible by children. While there are warnings visible to anyone, a few clicks of a mouse allow a youngster to surf in an adult world. Opposition to the law comes from a coalition of at least 46 groups, including the American Civil Liberties Union and the American Library Association.
They contend the law restricts freedom of speech and argue that parents can monitor their children’s Internet use with filtering software. Cyberguard or Surf-Watch are two examples. They block out sites not appropriate for children under the age of 18. The day President Clinton signed the Act, the American Civil Liberties Union filed suit to strike it down. Last June, a three-judge district court panel sided with the ACLU and ruled the Act unconstitutional.
The ACLU and others celebrated the decision in rallies across the country. Back in Washington the Clinton administration filed an appeal to the Supreme Court where the case was argued today.
ELIZABETH FARNSWORTH: Now we get two views on the Communications Decency Act. Cathy Cleaver is director of legal policy for the Family Research Council. She co-authored a friend of the court brief in support of the Act on behalf of 26 members of Congress. Jerry Berman is executive director of the Center for Democracy and Technology.
He organized the coalition opposing the Act, including online service providers, newspaper editors, and libraries. Ms. Cleaver, why do we need this Act? We’re not talking about obscene materials here. We’re talking about indecent materials, which would be allowed, am I right in, in newspapers or–where would they be allowed, and what are we talking about, and why do we need it?
CATHY CLEAVER, Family Research Council: As a matter of fact, there’s never been a First Amendment right for adults to give indecent material to children in any medium. We’re talking about sexually explicit material.
ELIZABETH FARNSWORTH: But they would be allowed for adults.
CATHY CLEAVER: But they would be allowed for adults, absolutely. And so that’s why the CDA is so narrowly tailored to simply say–and it regulates conduct, not contents. And the Act it regulates is the act of an adult knowingly giving, showing, or selling pornography to a child. So adults should not have that right in cyberspace where they have that right nowhere else. And while it is a restriction on freedom, it’s a restriction that we embrace because kids are that important.
ELIZABETH FARNSWORTH: Why should it be struck down?
JERRY BERMAN, Center for Democracy and Technology: The law has to pass two tests. First of all, it has to protect the free speech rights of adults in any medium, and No. 2, it has to protect children. This law fails on both tests. Because of the way information is a slave on the Internet children are exposed to it. And you would have to really re-alter the Internet in order to keep it away from children. The problem with that is that 40 percent of this content is coming from overseas.
The Internet is a global medium, so that even if this law is upheld and we alter the Internet, children are going to have all of this pornography coming into their home. So the only effective solution, the only effective solution is for parents and institutions to adopt filtering technology which keeps it out of their homes and institutions. That is clearly the case. And we make that argument. If the statute is ineffective in protecting children, it falls on constitutional grounds.
CATHY CLEAVER: I would certainly agree with Jerry that filtering software should be used by parents.
ELIZABETH FARNSWORTH: Does it exist?
CATHY CLEAVER: It does exist. It’s faulty now but it’s improving. But the question is: Should we as a society give up the right to prosecute the worst offenders online? Should we not identify conduct that we find reprehensible, like adults knowingly e-mailing a minor a centerfold from “Hustler” or what have you?
So we want parents to use software absolutely, but should we give up that right to prosecute, to press charges? I know I talk to parents almost every day who really want the right to let their local police know if their children are being harassed and exploited in this way. And we have a right to have that kind of criminal law. Cyberspace should not be exempt from the same sorts of laws against bad conduct that we have in other media.
ELIZABETH FARNSWORTH: What about that, Mr. Berman?
JERRY BERMAN: Well, some of the judges today were raising the question if they allowed their child, a 17 year old, on a computer to look at “Playboy” or to download “Ulysses,” would they be subject to prosecution as parents?
ELIZABETH FARNSWORTH: “Ulysses,” the book by James Joyce.
JERRY BERMAN: The book by James Joyce. And I think they were really concerned that this law went too broadly.
ELIZABETH FARNSWORTH: Your concern is that this will actually make unlawful books like “Ulysses” or other books that might be considered by some indecent?
JERRY BERMAN: It would make it prosecutable or at least would convince a lot of people who–because many, many people publish on the Net, but they shouldn’t take the chance of putting marginal material up because they don’t have the lawyers, they don’t have the experience.
They would be chilled in exercising their free speech rights. So in the end I think we will have a statute which commercial pornographers can live with, fat cats can live with, and the great democratic potential of the technology will be squandered, and we still won’t protect children because half of this adult bookstore is overseas. We take out half of the books and let children romp around in it. That is not protecting children. So we need this screening software, and if the screening software works, why do we need an over-broad statute?
CATHY CLEAVER: I feel like we’re not arguing, Jerry. We do need a screening software, absolutely. And that would be effective on the foreign porn. But, look, our country still has the unfavorable top ranking position in the world of pornography distributors. We produce and distribute more pornography than any other country, including on the Internet. So it’s entirely appropriate for us to start here to identify conduct that should not happen on the Internet. And that’s giving, selling, or showing pornography to children.
ELIZABETH FARNSWORTH: Let me interrupt one second. What about the argument, Ms. Cleaver, that information about preventing AIDS would be unlawful under this law because there would be sexually explicit material, or that information about testing for breast cancer would be illegal, what about that?
CATHY CLEAVER: Well, actually, the indecency standard is not new, and it has never been applied to serious literary, artistic, political, medical, or scientific information. In fact, there has been–it has been evaluated in the context of teen sexual AIDS prevention and contraception information, and it was found not to be indecent. It was not indecent to broadcast over the radio the John Gotti trial, even though he used every expletive in the book. But it was found indecent to have on a cable show couples get up on stage, strip, and have sex. So those are the things that the indecency definition has addressed in the past, and they won’t address serious literary or medical or scientific programs or pictures. It never has, and it never will.
JERRY BERMAN: Let me make–in this new media–in the broadcast media we’ve struggled for that definition, and big broadcasters who tried to figure out with the FCC, it has cost our coalition over a million dollars to challenge the statute. Most of the people coming on Internet, a little Web operator cannot afford the lawyers and the legal bills to try and sort this out from district to district. We need a statute which protects their free–they will just stop operating on the Internet. And the pornographers, they’ll continue to operate. So that’s an ineffective statute which does damage to free speech, doesn’t protect children. I think Congress really rushed to judgment here. It needs to start again. We want to work with the Family Research Council, and enough is enough to find the solution that meets these two goals: free speech and protecting children.
ELIZABETH FARNSWORTH: Is a major decision being made here about whether or not cyber–the computers and the Internet are more like newspapers and magazines and books, or more like radios and TV’s which come into your home and are less easily restricted, is that what’s really happening here?
CATHY CLEAVER: There was a discussion about that this afternoon in a court. And you could tell that the justices were struggling for an analogy. And there really isn’t one other medium that it can be compared to. It can be compared to several mediums in one but the point here that I keep stressing is that in no medium are we allowed to give, sell, or show pornography to children, period. So pick a medium, and we can use that as an example, and we look at the history, and the First Amendment jurisprudence, and we say, it’s never been allowed in any medium, so pick your medium.
JERRY BERMAN: Pick your medium, but every medium has had a fight over trying to find the right balance here. And we just haven’t found it for the Internet. And we’re going to have to try again.
ELIZABETH FARNSWORTH: Well, thank you both very much.
CATHY CLEAVER: You’re welcome.