Indecency Standards on the Internet - Essay Example

Indecency standards Lawmakers and legal scholars generally use legal precedents from broadcast media decisions as the model for definitions of indecency and obscenity when developing regulations governing the Internet. The Communications Decency Act (CDA) of 1996 made it a federal crime to display ‘indecent material’ on any computer network unless the website owner utilizes ‘effective’ techniques to control access of that material to minors. This law appears to be a reasonable compromise that protects free speech and prevents children from accessing objectionable material, but in practice and effect, outlaws free speech from the Internet. The Internet allows everyone the freedom to connect with other people and suppliers worldwide but an economical means for individuals to restrict their art or thoughts to the eyes of children is yet to be developed. Because of this lack of security technology, across the board prohibition is justified under the law, a concept that is in itself considered unlawful by a strict definition of the First Amendment of the Constitution which unambiguously guarantees the right to free speech (Pilon, 1994). Supreme Court decisions have consistently found that the First Amendment does not apply to obscene communications and have allowed communities to establish their own restrictions regarding what is obscene. The court in Miller v. California explained that if the ‘average’ person would describe the work as obscene or if it showed or expressed patently offensive sexual conduct without ‘serious literary, artistic, political, or scientific value,’ the material is correctly defined as obscene (Mason, 2000). The community of the World Wide Web has combined to establish what is and what is not acceptable. Neither a single government alone nor the coalition of all can hope to effectively restrict such a universally encompassing phenomenon such as the Internet. In addition, the associations and comparisons made of the Internet to the broadcast media when formulating laws is flawed as is the perceived right to restrict its content. Before cable and satellite television brought effective child protection techniques within a click or two for parents, children could access the network television stations at will and censorship was widely accepted as a necessary governmental responsibility. However, Internet access is not as universally accessible in the same way radio airwaves are. A person does not accidentally look up a Web site the way they might accidentally hear something on network television or radio. No law regarding internet indecency passes constitutional inspection no matter how vigilantly crafted or well intended. “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding.” Supreme Court Justice Louis Brandeis (“Olmstead”, 1928). The term indecent is vague, confusing and destined for continual debate and evolution. Local judiciaries that try to define it and build moral parameters excluding what is currently perceived indecent from a source based on a worldwide scale is impossible and unwarranted. The biggest casualty to free speech is the individual citizen’s right to make morality decisions and be able to speak freely to others in all regions of the globe. The CDA cannot legitimately allege any jurisdiction over the Internet as it might the broadcast media because software has enabled controlled access to minors. Most Internet service providers offer inexpensive or free access to child protection filters. Just as the government was publicizing the possibilities of the information superhighway, it was also moving to censor it. The Internet, at least for a short time, had provided many peoples of the world, including the U.S., genuine freedom of speech. About the time the internet became widely popular, the U.S. Senate voted for an amendment to the Telecommunications Act of 1996 (Weingarten, 1996) which would have made it unlawful to produce indecent material on any computer network (Corn-Revere, 1997). The House offered its own amendment encouraging private solutions to the problem of indecency in an effort to counteract the censorship attempts approved by the Senate. A compromise that restricted speech considered ‘harmful to minors’ was worked out between the houses of congress. Under the bill, “sexual imagery on private computer networks would be governed by a standard like that usually used for public display of print media. House conferees, however, again with little discussion, substituted broader language regulating ‘indecent’ material” (Weingarten, 1996, p. 68). This language was enacted into law along with the Telecommunications Act of 1996 and became integrated into the CDA. Communicating via the computer allows everyone to create any type of subject matter and to distribute it instantly on a global scale. This remarkable progression in the ‘marketplace of ideas’ is a result of the ease of access to the author. Laws that increase regulations and its associated costs to the common webmaster jeopardize this developing modernization and globalization of public dialogue. The CDA will add to the cost of internet speech which, in effect, prohibits the freedom of speech. Government cannot legitimize exercising control over internet content which its users are able to control. The FCC has yet to shape a rational and consistent standard defining broadcast indecency. According to the FCC’s broad definition, indecency in the broadcast media is ascertained according to the discernment of the ‘average broadcast viewer’ but this is a meaningless concept. The tastes of the average viewer in Nebraska hardly correlate to the tastes of the average viewer in Las Vegas. In other words, the FCC determines what is indecent. The crafters of the CDA were influenced by legal precedence regarding FCC broadcast interpretations to craft its indecency standard. “It is possible for any court to string together words in an important sounding way, crafting phrases such as ‘prurient interest,’ or a mythical national consensus, and claim to have created a uniform definition of indecency. What it will have done, in effect, is to impose its tastes on the rest of the nation.” (Huber et al, 1996, p. 385). The CDA’s version is no clearer than the FCC’s definition of indecency and applies similar reasoning to a different set of circumstances. The Internet, as discussed, is not the same form of communication as the broadcast media. No court – whether federal, state or local – can clarify or fully rationalize this Act that suppresses the freedom of speech on the internet by referring to a theoretical ‘average’ computer user. If the First Amendment protected only speech that was acceptable to the ‘average’ person, it would be rendered useless as it would provide no protection to unpopular minority opinion which is clearly not as the founders of the country intended. The Internet is a much different form of communication than broadcast media outlets as it enables an exceptional range of people from varied communities to voice their opinions and share their knowledge. The indecency judgments of the ‘average’ user are not simply difficult to distinguish, but should be of no significance. If FCC regulations meant to address the definition of indecency regarding the broadcast media to determine the future of internet communications, the damage to the truly free speech it has fostered will be severe. “Works of considerable literary, scientific, and artistic merit might be ‘patently offensive.’ In some contexts, ordinary cuss words might be considered indecent” (Huber et al, 1996, p. 385). To censure or prohibit free speech on the Internet is a violation of law, the highest law, the Constitution of the United States. Works Cited Corn-Revere, Robert. “New Age Comstockery: Exon vs. the Internet.” Cato Institute Policy Analysis No. 232. (June 28, 1995). Huber, Peter W.; Kellogg, Michael K.; & Thorne, John. “Joint Explanatory Statement of the Committee of Conference.” Special Report: The Telecommunications Act of 1996. Boston: Little, Brown & Co.,(1996), p. 385. Pilon, Roger. “A Modest Proposal on ‘Must-Carry’, the 1992 Cable Act, and Regulation Generally: Go Back to Basics.” Hastings Communications and Entertainment Law. (1994). Journal 41. Mason, Jeffrey D. “Mason Miller v. California (1973): The Court Confronts Obscenity.” The Millennium Fool. (November 27, 2000). “Olmstead v. United States.” Decided June 4, 1928. Supreme Court Collection. Legal Information Institute, Cornell University. October 28, 2009 Weingarten, Fred W. “Debate over Indecency on the Net Reveals Deep Divisions.” Computer Magazine. (February, 1996), pp. 68, 73. Read More