Todd Lappin

WIRED Magazine
Spring, 1996


THE FIRST AMENDMENT, NEW MEDIA, AND THE SUPREME COURT
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Here's the basic deal:

The First Amendment is NOT an absolute.

For example, "obscene" speech does not enjoy First Amendment protection.

Period.

But what constitutes "obscenity?"

According to a three-part legal test laid out in the Supreme Court's 1973
decision in Miller v. California, "obscene" material a) depicts sexual or
excretory acts listed in a state obscenity statute, b) depicts those acts
in a "patently  offensive" manner, appealing to the "prurient interest," as
judged by a  reasonable person applying the standards of the community, and
c) lacks "serious" literary, artistic, social, political, or scientific
value.

Laying aside obscenity, the free speech provisions contained within the
First Amendment otherwise hold sway EXCEPT in cases where the state has a
"compelling government interest" in limiting citizens' rights of free
expression.  Protecting children from exposure to content which is
"indecent" is recognized as one of those compelling interests. As it so
happens, that's also the alleged "justification" for passage of the
Communications Decency Act.

The Communications Decency Act which President Clinton signed into law on
February 8, 1996 defines "indecent" material as:

"any comment, request, suggestion, proposal, image, or other communication
that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs."

Notice how broad this definition is, and how it makes no exceptions for
sexually-explicit material with redeeming social value.

Fortunately, the Supreme Court has also decreed (repeatedly) that the
State's compelling interest in protecting children from "indecent" material
MUST be exercised through the "least restrictive means possible."

Here's an example of how that comes into play:

In the case of Federal Communications Commission v. Pacifica Foundation
(1978), the Supreme Court ruled that the FCC was NOT violating the First
Amendment when it complained about a radio station's decision to broadcast
a recording of George Carlin's "Filthy Words" monologue at 2 PM in the
daytime.

Why did the court uphold the "indecency" standard as it applies to
*exclusively* broadcasting?  Here's what the court said:

"Of all forms of communication, broadcasting has the most limited First
Amendment protection.  Among the reasons for specially treating indecent
broadcasting is the uniquely pervasive presence that medium of expression
occupies in the lives of our people.  Broadcasts extend into the privacy of
the home and it is impossible completely to avoid those that are patently
offensive. Broadcasting, moreover, is uniquely accessible to children."

NOTE: The full text of FCC v. Pacifica is available at:
http://www.eff.org/pub/Legal/Cases/FCC_v_Pacifica/fcc_v_pacifica.decision

It's worth checking out.  (Ironically, because the document contains the
full text of Carlin's monologue as an appendix, online publication of this
Supreme Court decision could be punishable under the terms of the
Communications Decency Act.)

While fighting the censorship legislation in court, the ACLU will need to
prove that there are other, "less restrictive means" available to protect
minors from indecent content, short of broad government censorship.

Filtering software such as SurfWatch or Net Nanny, for example, seems to
fit the bill.  These tools accomplish the "compelling interest" of
protecting minors by allowing adults to choose for themselves what is and
is not appropriate for their children to see WITHOUT requiring
government-imposed censorship.

In addition, given the criteria established above, the ACLU will want to
demonstrate why online media is NOT the same as broadcast, and thus should
not be subject to the same restrictions. With the First Amendment, context
is king.

Such arguments have proven effective in the past.  In 1989, for example,
the Supreme Court ruled (in Sable Communications v. FCC) that a flat-out
ban on dial-a-porn services was unconstitutional.

Here's a great passage from "Sable," in which the "least restrictive means"
test is clearly laid out:

"Sexual expression which is indecent but not obscene is protected by the
First Amendment; and the federal parties do not submit that the sale of
such materials to adults could be criminalized solely because they are
indecent.  The Government may, however, regulate the content of
constitutionally protected speech in order to promote a compelling interest
if it chooses the least restrictive means to further the articulated
interest.  We have recognized that there is a compelling interest in
protecting the physical and psychological well-being of minors.  This
interest extends to shielding minors from the influence of literature that
is not obscene by adult standards. The Government may serve this legitimate
interest, but to withstand constitutional scrutiny, 'it must do so by
narrowly drawn regulations designed to serve those interests without
unnecessarily interfering with First Amendment freedoms. It is not
enough to show that the  Government's ends are compelling; the means must
be carefully tailored to achieve those ends'"

Nicely said.  And with all this in mind, the Court concluded:

"Because the statute's denial of adult access to telephone messages which
are  indecent but not obscene far exceeds that which is necessary to limit
the access of minors to such messages, we hold that the ban does not
survive constitutional scrutiny."

Given the state's "compelling interest" in protecting minors from
inappropriate media content in the absence of other, "less restrictive
means," these issues will be central to the question of whether or not the
Communications Decency Act is unconstitutional.

One thing we all can do right now is help make sure that people on and
offline understand that TOOLS NOW EXIST which will allow parents to take
responsibility for what their kids see on the Net.  In other words, we
don't need Uncle Sam to protect the kids.  We can do it ourselves, using
less restrictive means

One final note.  The Supreme Court has also upheld the ideal that you
CANNOT dumb a medium down to the level of children if less restrictive
means exist to achieve the goal of sheltering minors from inappropriate
material.

In Butler v. Michigan (1957), a unanimous Court reversed a conviction under
a statute which made it an offense to make available to the general public
(printed) materials found to have a potentially harmful influence on
minors.  The Court found the law to be insufficiently tailored since it
denied adults their free speech rights by allowing them to read only what
was acceptable for children.  As Justice Frankfurter said in that
case,"Surely this is to burn the house to roast the pig."

Sadly, Congress and the President have decided to hold a pig roast, and
they're burning down the house in the process.

--Todd Lappin-->
WIRED Magazine

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