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The Communications Decency Act

FOI Alert Volume 2 Issue 5

Note: the next series of alerts will focus on issues discussed at SPJ's National Convention in Crystal City, Va.

The highest court in the land will have to unravel the issue of how the Internet can be controlled--if at all--for content.

The Communications Decency Act, a law challenged successfully by more than 50 plaintiffs including including the Society of Professional Journalists, was partially struck down by a panel of federal judges on June 12.

The panel called the restrictions on the Internet a "profoundly repugnant" violation of the First Amendment ruling that the global computer network must have the broadest possible protection from government intrusion.

An injunction against the law continues to be in effect.

Under the law, making "indecent" or "patently offensive" material available to minors on the Internet would be punishable by $250,000 fines and two-year jail terms.

"We don't consider this material to be protected by the Constitution," said Donna Rice Hughes, marketing director for Enough is Enough.

Enough is Enough was launched in November of 1992 to "educate the public about the existence, availability and dangers of illegal pornography."

The group has offices in both Fairfax, Va., and Santa Ana, Calif.

Hughes said the CDA was never designed to keep pornography away from adults, only to "segregate it from children."

She claimed that groups such as hers are having "a difficult time getting obscenity laws enforced," but she provided no statistics.

On-line journalist Brock Meeks said less than three percent of the material on the Net could be considered obscene even by community standards. "Nobody disagrees that obscene materials should be kept out of the hands of kids," he said.

But Meeks, chief Washington correspondent for Wired magazine said the job of screening material should fall to a parent--not the government.

"What's indecent? That's why this bill is so ambiguous. When you start to try and regulate this thing, where does it stop?"

Distribution of child pornography by computer is already illegal, he said.

Bruce Taylor, president and chief counsel of the National Law Center for Children and Families, countered Meeks.

"The question isn't whether you're a responsible parent but whether you're technologically savvy enough to operate a computer," Taylor said.

The center worked closely with bill sponsors, Jim Exon, D-Nebraska, and Dan Coats, R-Indiana, to get the measure passed.

Certain kinds of speech are not protected by the constitution including obscenity, child pornography, fighting words that cause imminent harm, libel and slander.

Robert Lystad, First Amendment counsel for the Society of Professional Journalists, said the act "is so overreaching it would effectively ban free speech."

"Who is to determine what's indecent? "I know it when I see it"--is too difficult a standard for the average American," Lystad said.

Taylor said that obscenity laws can't be used to bar political or controversial speech. "It cannot be expanded even to serious sex education in schools. Court cases go back 200 years that say that," Taylor said.

That hasn't stopped Congress from passing unconstitutional laws subject to challenge, Meeks said.

He said there were efforts this year in Congress to make it a crime to publish the "Anarchist Cookbook" on the Internet. The controversial 40-page book instructs readers how to build bombs.

Meeks said computer hackers have discovered that there are "censored" that promote political speech including topics on feminism and AIDS.

(The Freedom Forum sponsored this and many other FOI panels at national convention. This panel was moderated by Paul McMasters, First Amendment ombudsman for the Freedom Forum.)

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