Revolution

EFF's Analysis of Communications Decency Act

Consitutional problems with the Communications Decency Amendment: A legislative analysis by the Electronic Frontier Foundation

Introduction

On June 14, 1995, the United States Senate approved by a vote of 84-16 an amendment to the Senate's omnibus telecommunications-deregulation bill that raises grave Constitutional questions and poses great risks for the future of freedom of speech on the nation's computer-communications forums.

Sponsored by Sen. Jim Exon (D-Nebraska), the amendment originated as an independent bill titled Communications Decency Act of 1995 (CDA), and is intended, according to its sponsor, both to prohibit "the [computer] equivalent of obscene telephone calls" and to prohibit the distribution to children of materials with sexual content.

As drafted, however, the legislation not only fails to solve the problems it is intended to address, but it also imposes content restrictions on computer communications that would chill First-Amendment-protected speech and, in effect, restrict adults in the public forums of computer networks to writing and reading only such content as is suitable for children.

Specific Provisions of the CDA

The Communications Decency Act would change the language of Title 47, United States Code, Section 223, a section that primarily does two things:

  1. it prohibits "obscene or harassing" phone calls and other, similar, abusive uses of the telephone, and

  2. it imposes regulation (promulgated and administered by the Federal Communications Commission) on telephone services that provide so-called "indecent" content and prohibits those services from providing legally obscene content.

The amending language drafted by Sen. Exon and passed by the Senate substantially restructures and alters the provisions of this section in an effort to bring computer communications under the statute. If the Senate-approved language becomes law, provisions in the amended statute will:

The CDA outlines affirmative defenses for persons or entities who might otherwise be liable under the statute's criminal provisions.

In spite of the efforts of Sen. Exon to address in this revision of his legislation those criticisms and constitutional issues raised by earlier drafts of it, the language of the CDA as passed by the Senate is riddled with flaws that threaten the First Amendment rights both of online service providers and of individual citizens.

The CSA Would Criminalize Constitutionally Protected Speech

None of the CDA's prohibitions of "obscene" communications raise any constitutional issues; it is well-settled law that obscene content is not protected under the Constitution. In contrast, CDA's restrictions on "indecent" speech are deeply problematic.

What is "indecent" speech and what is its significance? In general, "indecent" speech is nonobscene material that deals explicitly with sex or that uses profane language. The Supreme Court has repeatedly stated that such "indecency" is Constitutionally protected. Further, the Court has stated that indecent speech cannot be banned altogether -- not even in broadcasting, the single communications medium in which the federal government traditionally has held broad powers of content control.

The section of the CDA dealing with "obscene or harassing" communications penalizes not only the sending of "obscene" communications, but also those that are "indecent." This prohibition of indecent content, even though limited somewhat in application by the section's intent requirement, is unconstitutional on its face.

In Sable Communications v. FCC (1989), a case involving dial-in phone-sex services, the U.S. Supreme Court held that, even though a ban on obscenity in "dial-a-porn" services is constitutional, a ban on indecency is not. Citing earlier holdings, the Court said that "[t]he government may not reduce the adult population to only what is fit for children."

What are some examples of "indecent" content? The most famous example probably is the George Carlin comedy monologue that was the basis of the Supreme Court case F.C.C. v. Pacifica Foundation (1978). In that monologue, Carlin discusses the "Seven Dirty Words" that cannot be uttered in broadcast media. Other examples of "indecency" could include passages from John Updike or Erica Jong novels, certain rock lyrics, and Dr. Ruth Westheimer's sexual-advice column. Under the CDA, it would be criminal to "knowingly" publish such material on the Internet unless children were affirmatively denied access to it. It's as if the manager of a Barnes & Noble outlet could be sent to jail simply because children could wander the bookstore's aisles and search for the racy passages in a Judith Krantz or Harold Robbins novel.

The Supreme Court has consistently held, both before and after its landmark obscenity decision in Miller v. California (1973), that while sexual material and profane language can be regulated in some specifically defined contexts (e.g., the FCC can require that "indecent" content in broadcasting be limited to certain hours of the broadcasting schedule when children are less likely to be exposed), in general indecency is fully protected by the First Amendment. The Court has even recognized that profane language may be essential to political speech, since the emotional power of particular words may be as important as their intellectual content. As Justice Harlan commented in Cohen v. California (1971), "One man's vulgarity is another's lyric."

It's important to note that not every application of this part of the CDA would be unconstitutional. If the "obscene or harassing" offense language been limited to instances in which the speaker intends to "threaten," it would have raised no constitutional problems. (A threat of blackmail or physical violence, for example, is not protected speech.) But the CDA goes beyond threats -- it criminalizes the use of "indecent" language even when the speaker merely intends for his content to be "annoying," and this prohibition treads squarely on speakers' First Amendment rights. After all, the First Amendment was drafted to protect offensive, annoying, and disturbing speech -- there is little need for protection of pleasant and uncontroversial speech, since few people feel impelled to ban it. As Justice Douglas observed in Terminiello v. Chicago (1949), free speech "may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." For example, a citizen offended by the passage of the CDA who shouts an indecent comment at his U.S. Senator may very well intend to annoy the Senator -- nevertheless, such expression is protected under the First Amendment. It is constitutionally absurd that speech that would be protected if shouted on the street would turn the speaker into a felon if sent by e-mail.

By Granting the FCC Regulatory Control Over the Content and Availability of Computer Communications, the CDA Violates the First Amendment.

Is it constitutional for Congress to declare that computer communications are a medium like broadcasting, where it is allowable for the FCC to impose content-related regulations? Clearly not. Prior to Sen. Exon's proposed changes to Section 223, the FCC has had content control over only two specific types of communications media:

In no other communications medium does the government have the constitutional authority to impose broad regulation of indecent content.

The justification for the federal government's special role in regulation of broadcasting is twofold. The first rationale for such a broad regulatory role was the "scarcity of frequencies" argument, which appears the Supreme Court's decision in Red Lion Broadcasting Co. v. FCC (1969). In that case, the Court held that there is a finite number of workable broadcasting frequencies, and that the scarcity of this important public resource entails that the airwaves be allocated and supervised by the federal government in order to best serve the public interest. The second rationale for a special government role in broadcasting appears in FCC v. Pacifica Foundation (the "Seven Dirty Words" case discussed above). In this case the Court argued that broadcasting is an especially "pervasive" medium that intrudes into the privacy of the home, creating a constant risk that adults will be exposed to offensive material, and children to indecent material, without warning.

The justification for regulation of the telephone-based services is grounded in the government's special role in supervising common carriers. Since the telephone systems of this country, many of which amount to monopolies, are common carriers, they are appropriately under the jurisdiction of the FCC. It makes sense for phone-sex services, which rely on the cooperation of common carriers, to fall under FCC jurisdiction as well.

Neither the broadcasting rationales nor the common-carrier rationale support government content control over computer communications.

First of all, the new medium of computer-based communications -- which may take place over everything from large-scale Internet access providers and commercial conferencing systems to the PC-based bulletin-board system running in a hobbyist's basement -- isn't afflicted with "scarcity." Computing hardware itself is increasingly inexpensive, for example, and one of the basic facts of modern computer communication is that whenever you add a computer to the Internet, you increase the Internet's size and capabilities.

Secondly, computer-based communications aren't "pervasive" as that term is used in the Pacifica case. In the world of broadcasting, content is "pushed" at audiences by TV and radio stations and broadcasting networks -- audiences are primarily passive recipients of programming. In computer communications, in contrast, content is pulled by users from various locations and resources around the globe through the Internet or from the huge data servers maintained by services like Prodigy and American Online. Exposure to content is primary driven by user choice. For users with even minimal experience, there is little risk of unwitting exposure to offensive or indecent material.

Finally, online service providers aren't common carriers and don't want to be -- it is the nature of this kind of service that providers must reserve the right to make certain basic choices about content. In contrast, a common carrier like AT&T or BellSouth has to "take all comers." (If online service providers were treated as common carriers, we might imagine a day when the FCC requires that an NAACP-sponsored BBS carry hateful messages from members of the Ku Klux Klan.)

In sum, the narrow constitutional justifications for content regulation of two specific types of media do not extend to the traditional print media, films or oral conversations. Clearly, there is no Constitutional rationale for extending intrusive content-regulatory control to online communications. This means that the CDA's "shoehorning" of online communications into the jurisdiction of the FCC is itself unconstitutional.

It is clear that Congress could not constitutionally grant the FCC the power to tell The New Yorker not to print profane language -- even though children might come across a copy of The New Yorker. Surely it is equally clear that Congress cannot grant the FCC the authority to dictate how providers like Netcom and CompuServe handle content that contains such language.

Computer Communications Pose Different Problems and Require Different Solutions From Those of Other Media

Even if the federal government had the constitutional authority to regulate indecency in computer communications, it would be required by the First Amendment to employ only the "least restrictive means" in doing so. In the Sable case, Court noted that there are less restrictive means than a total ban for protecting children from indecent content on phone-sex services. These include such measures as requiring various procedures to verify customers' ages and to deny services to minors.

The Exon language creates an affirmative defense for online service providers who implement the same types of procedures that the FCC now requires of phone-sex services. But what works for phone-sex services clearly would not work for computer-communications services. In this fundamentally different medium, those FCC-enforced procedures are not a "least restrictive means" -- in fact, they are potentially among the most restrictive.

The language that penalizes anyone who "makes or makes available" indecent content to a minor would require an access provider like Netcom to cease carrying the entire alt.sex.* hierarchy, the great majority of which is First-Amendment-protected speech. Suppose Netcom tried to avail itself of legal immunity for transmitting indecency by, say, limiting subscriber access to the "indecent" Usenet newsgroups to Netcom subscribers age 18 or over. Since Netcom, like all Internet access providers, is also a Usenet distribution node, *the company would still be liable*, since, by passing "indecent" Usenet traffic through, it would "make available" that indecent content to minors elsewhere on the Net who aren't Netcom customers.

Note: this analysis is not meant to imply that no government regulation of computer communications would meet the "least restrictive means." As a practical matter, this medium is uniquely suited to measures that simultaneously protect sensitive users and children from offensive content and allow the full range of constitutionally protected speech on the Net. Since both the computers that users employ to read the Net and those that providers use to administer the Net are highly intelligent and programmable devices, it is relatively easy to design tools that individuals can use to filter offensive content and that parents can use to screen content for their children. The government's promotion of the development and implementation of such tools, if done in a way consistent with First Amendment guarantees, would likely qualify as a "least restrictive means."

Furthermore, there are constitutional reasons for favoring policies that empower individuals and families to make their own content choices. In Wisconsin v. Yoder (1972), the Supreme Court acknowledged that the right of parents to determine what is appropriate for their children is constitutionally protected. Filtering tools could be the fundamental means of preserving family values while exploring global computer networks.

Adults Should Not Be Limited To Only What Is Appropriate For Children

The effect of the CDA's provisions regarding indecent content and minors would be both dramatic and disastrous. If enacted, the CDA would effectively turn all the public areas of the Net -- and all of the distributed global conferencing system known as Usenet -- into the equivalent of the Children's Room at the public library. Traditionally, every large public library has a Children's Room -- a confined area of the library with content deemed safe for children. Outside of the Children's Room, the rest of the library is geared toward, and available to, adults.

The Exon language would turn the Net as a whole into the inverse of the public library -- the public spaces, including Usenet, would be regulated as safe for children, while adults would have to talk about adult content (detailed discussions of sexual content in the work of James Joyce, explanations of Shakespeare's bawdy puns, or descriptions of proper techniques for safe sex, to name some examples) in confined, nonpublic (and probably non-global) subforums or "rooms." There would be no more wide-ranging debates with the full set of potential international participants about the merits of The Satanic Verses -- after all, that book has indecent content. We'd have to be content with the narrower range of participants we could lure to an "adult" room on CompuServe or AOL -- a small group of paying subscribers rather than a large population of discussants from commercial and noncommercial systems alike. The CDA would diminish and perhaps destroy the intellectual diversity and vibrancy of the Net.

Conclusion

The CDA represents the kind of "top-down," government-centered attempt to regulate the content that demonstrates a lack of understanding of the nature of this new medium. Legislation like the CDA -- particular when based on regulatory approaches for wholly different media -- are certain to create more practical and constitutional problems than they solve. It is especially ironic that the Exon amendment, which would chill the development of online services and communities and "dumb down" the content of the Net's public spaces to a grade-school level, has been attached to a bill deregulating communications infrastructure. This deregulation has been presented as a boost to the pace of development of the very technology to support these services and communities.

EFF believes that parents, not Congress or the FCC, have the primary right and responsibility to determine what is appropriate for their children to see. Furthermore, it is clearly wrong for Congress to attempt to make outlaws out of adults for engaging in public speech that may not be suitable for minors. As Supreme Court Justice Felix Frankfurter ruled in Butler v. Michigan (1957):

"The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children."

And a legislative approach that was bad for the adult population of Michigan nearly 40 years ago is surely just as bad for the adult population of the Net today.