THE COMMUNICATIONS DECENCY ACT (CDA) CHAPTER 15.
In the past the internet has been the most expansive medium of communication. The use of the internet is growing exponentially as time goes by. Over forty million users log in to the internet monthly. Law makers are not able to make regulations due to the fast growth of the internet. The communications decency act has brought a change to this. This article describes the developing of the CDA, the legislative history of the CDA and potential fate of the CDA according to law.
It also addresses how first amendment issues were addressed and how its seen upon by the courts. Some of the suggestions by the articles are that it should not survive the constitutional challenges currently before the high court and all other possible alternatives which are less intrusive upon an individual’s freedom of speech.
On eighth February 1996 President Clinton signed into law the telecommunications competition and deregulation act 1996. The act regulates most telecommunication media. The act provided a worldwide service for all residential consumers by ensuring that people in rural areas get equal access to broadcast media as those in metropolitan areas.
The act also attempted to force large telecommunications companies especially network providers and television companies to allow competition by small firms. These objectives were applauded by local supporters. Government control on media was loosened.
The act contains the Communication Decency Act 1996 which restricts distribution of indecent, obscene and pornographic materials over the internet. The CDA was written by Senator James Exon. This act regulates speech over the internet. The act was supposed to protect children from accessing obscene materials. Preventing children from accessing indecent materials was an important goal.
Despite opposition by most senators, Senator Exon eventually convinced his colleagues that CDA was appropriate and a vital measure to cub pornography in the internet. But due to constitutionally protected and upheld rights to free speech and freedom to access to information, this law appears that it will not last for long. ACLU held that CDA did not uphold the constitution and rejected its enforcement.
Shea court agreed that the injunction was inappropriate under constitutional circumstances. The case was filed to the Supreme Court by ACLU. The case determination will be a landmark decision for the growth and development if the internet.
The CDA does not uphold freedom of speech and this is too great for the law to stand or either be upheld for long. The law of CDA is overbroad and infringes upon constitutionally protected freedom of speech. The supreme court should discover this and uphold its decisions at the court’s first impression.
Statement of the problem.
Senator Jim Exon made a failed attempt in 1994 to pass an amendment restricting indecent material on the Internet. That failure followed a preemptive move by Senator Patrick Leahy to persuade the Congress that there was no need for government’s regulation of the Internet. His demand for studying the issue instead of regulating the Internet gained President Clinton’s support. Leahy’s delaying tactics did not prevent the Senate to pass the CDA in July 1995. The Act carried fines up to $ 100,000 and two years of prison for Violations. Moreover, it held Internet access providers liable for offensive material posted by users.
Representatives Chris Cox (R-California) and Ron Wyden (D-Oregon) succeeded in introducing the Cox-Wyden Amendment, which passed the House, 420 to 4. The amendment – known as the ‘Internet Freedom and Online Family Empowerment’ amendment- “prohibited the Federal Communications Commission from regulating the Internet, and relieved access providers form liability regarding the material their customers posted”(Bruce, 1996,p.1). The Conference Committee convened and reconciled the Senate’s CDA and the House’s bill. But, the Senate made a major change on the Cox-Wyden Amendment. It was “switching the specific and more liberal term, ‘harmful to minor’, to ‘indecency’, which is very vague and left open to much interpretation”(Bruce, 1996,p.2).
On February 1, 1996, the Congress passed the Telecommunication Reform Bill, which included the CDA. President Clinton signed the Bill into law on February 8, 1996. This took place after debates between the proponents and the opponents of the CDA. Cannon (1996) asserts that the most significant changes in the CDA In its final version included:
(1)virtually eliminating FCC jurisdiction over the content of on-line computer communications, (2) replacing The word ‘indecency’ in the CDA with the definition of indecency from Pacifica, (3) couching the language aimed at the Internet in its own subsection governing ‘interactive computer services,’ and (4) specifically targeting the CDA at content providers. P.92
The provisions of two sections of the CDA became controversial and received elaborate debate. One is “Section 223 which applies to ‘telecommunications devices’ and makes it a felony to transmit an ‘indecent’ communication ‘knowing that the recipient of the communication is under 18 years of age'”(Biegel, 1996, p. 1).
The second, Section 223(d) which applies to “interactive computer services.” Section 223 (d) makes it “a crime to ‘use an interactive computer service to send such material to a specific person or persons under 18 years of age’. Section 223(d) (1)(B) makes it a crime to ‘display such material in a manner available’ available to any person under eighteen” (Biegel, 1996, p.1). Under the CDA, violators are subject to penalties of up to $250,000
This paper has the objectives to answer the following research questions:
1. How do politicians and entrepreneurs look at the Internet?
2. What are the arguments for and against passing the First Amendment to protect indecent speech on the Internet through the CDA?
3. What should parents do to prevent kids from accessing indecent materials?
4. What other options are available to substitute the CDA?
The paper uses historical research as a method for the study. To contextualize the controversy surrounding the CDA, it was important to examine various historical documents containing pertinent statements about the CDA. To answer research questions, library archives, newspapers, journals, court as well as Congress hearings were used as sources of information. Moreover, online publications containing insightful statements were considered vital data sources for this research. The time frame chosen for this study extended from 1995 to 1997. This period of time was chosen because it witnessed the rise and demise of the CDA.
The rationale for regulating indecency on the Internet
Senator Exon and the advocates of the CDA relied heavily on the Pacifica case, to boost their case for regulating the Internet. They -including the government- preferred to view the Internet as a broadcast medium. According to Biegel (1996), “The Justice Department’s depended largely heavily on FCC v. Pacifica, 438 U.S. 726 (1978) In Pacifica, the Court found that ‘broadcasting has the most limited First Amendment protection'” (p.2). Basing its argument on this decision, the government asserted that it could regulate online speech because there can be unintentional exposure of minors to indecent material on the Internet.
The supporters of the CDA reasoned that the Act did not violate freedom of speech. They referred to the
Government’s concerns, and reached an agreement that individuals should exercise freedom intelligently and responsibly. They added that parents could not be around their children all the time. Moreover, children could have access to the Internet at other places, like schools, at friends places . Thus, “Even if the parents install protection software to keep their kids from accessing obscene material, the kids will eventually find a way to access the obscene material. ” (“The Communication 1996).
Senator Exon made interesting comments during his statement before the Senate on June 9, 1995. He compared the Internet to a printing press. Referring to pornographers, Exon argued that “what they do is to use free access, without charge advertising with the best of some of their pornographic, obscene material, and they put it over here on the Internet with their printing press. That is a printing press and everybody has one” (Congressional Record Online, 1995, p. 5). He also compared these sites on the Internet as an adult bookstore. Exon argued that his bill was aimed against pornographers who profited from selling smut. He added, “People on this pornography bulletin board, not unlike the Library of Congress, if I dare use that example, have a complete library of anything and everything that you could possibly imagine that you might see in an adult bookstore” (Congressional Record)
The views of the opponents of CDA
On February 9, 1996, Senator Leahy addressed the Senate and presented a bill to repeal the amendments made by the CDA of 1995. He argued that the CDA would not pass the First Amendment challenge because many its contents “are fatally flawed and unconstitutional”(Leahy, 1995, p.1).Showing that the CDA violated adults First Amendment rights, Leahy added that, “No literary quotes from racy parts of Catcher in the Rye or Ulysses will be allowed. Certainly, online discussions of safe sex practices, or birth control methods, and of AIDS prevention methods will be suspect. Any user who crosses the vague and undefined line of ‘indecency’ will be subject to two years in jail and fines”(Leahy, 1995, p.2).
Leahy’s argument alluded to alternative options, including blocking technologies, which were “less restrictive.” Many civil rights groups and powerful companies and corporations rallied behind
the American Civil Liberties Union (ACLU) to protest against the CDA. The major companies opposing the Act were America Online and Microsoft Corporation. These civil rights and corporate groups opposing the CDA, strongly argued that the First Amendment guaranteed freedom of speech. They criticized the CDA for “vagueness and over breadth”. They suggested that, “‘Idecency’ and ‘patently offensive’ – have never been positively defined by the courts or the Congress, and so create uncertainty as to the scope of the restriction, necessarily resulting in a ‘chilling effect’ on protected speech”(“Electronic…,” 1996, p. 6). Thus, speech protected by the
First Amendment was to be compromised in compliance with the CDA. They made it clear that, “To restrict what the governments see as indecent to protect the kids also means it is restricting the rights of adults to these material which is unconstitutional” (The Communication…,” 1996, p. 1).
The supreme court and CDA
The U.S. Supreme Court heard oral presentations in Reno v. ACLU on March 19, 1997. The hearing was crucial for the proponents of the CDA, because it was the first time for the Court to consider issues concerning users’ rights and responsibilities in cyberspace. Appellees in the case included 19 plaintiffs led by the ACLU and 27 plaintiffs organized as the Citizens Internet Empowerment Coalition (Biegel, 1996, p. 1 ) In the court, Washington, D.C. Attorney Bruce J. Ennis who represented the plaintiffs faced Deputy Solicitor General Seth P. Waxman who represented the government. According to Greenhouse (1997) “the Justices appeared less interested in constitutional theory than in learning about the available technology by which those who post material on the Internet and those who receive it on their computer screens can filter or mark the portions not suitable for children”(p. B 10). Some interesting analogies for the Internet were presented during the oral presentation. Waxman’s presentation depicted the Internet as a library. Accordingly, indecent material should be shelved in a “different room.” Waxman suggested that “the Internet is more like a city, with obscene and pornographic material equivalent to adult stores and video stores” (Biegel, 1996, p.1)
. Having in mind the case of Renton v. Playtime Theatres, he wanted the dispute to be viewed as a “zoning issue.” In Renton, 475 U.S. 41 (1986), theater owners argued, in vain, that their First and Fourteenth Amendment rights had been violated by a “zoning regulation” that prohibited the building of X-rated theaters near residential areas, schools, churches and parks. The court emphasized the ‘secondary effects’ of pornographic theaters, and decided that quality of life issues were in jeopardy. If such a frame of reference was accepted, “By analogy the quality of life online users can be seen as being affected by the presence of obscene and pornographic material” (Biegel, 1996, p. 2). Justice Breyer suggested that the Internet was analogous to a telephone. He wondered whether high school students’ conversations about their sexual experiences be criminalized.
Constitutional Challenges to the CDA
1) the CDA fails to differentiate between the legal definitions of obscenity and indecency,
regulating both equally;
2) the CDA fails to recognize the uniqueness of the Internet as a medium of communication;
3) the CDA is overbroad in its language and application.
Each of these issues presents a valid constitutional challenge to the CDA, and, in itself, may render the law unconstitutional. This shows that the CDA is wrongly written.
As the trial courts recognized in ACLU and Shea, the CDA is not constitutional. Its main objectives are not achieved and its survival is not based at a strict scrutiny review. Preventing kids from accessing indecent and obscene materials from the internet is a compelling goal under the circumstances. There are less restrictive ways to allow a person to privately view and screen his or her private materials with no government interference into a person’s privacy. These options should be publicized so that the general population of internet users is aware through public awareness methods.
The CDA is currently awaiting the Supreme Court review. If the courts decisions are understood then the rulings will probably be affirmed. The CDA is a poorly written law. This has been recognized by the ACLU and Shea courts. These courts have taken steps to conquer this form of injustice displayed in the Communications Decency Act.
What happens to guardians who want their children to learn using internet? And does it imply strict supervision to prevent children from accessing xnxx.com? Parents and guardians need to educate themselves to ensure the awareness of their children and then teach their kids the internet skills they have learnt. This is probably the most appropriate medium to travel on the information lane.