Pervasive Problem

The 1978 Supreme Court decision allowing censorship of dirty words on radio threatens free speech in cyberspace.

Jonathan D. Wallace from the October 1998 issue

(Page 2 of 3)

As it happens, the Catholic Church and the governments of many European countries were terrified by the introduction of the printing press. In France during the 1530s, King François I banned printed books and ordered the burning of printers, along with the works they had published. In 1559 Pope Paul IV established the Index of Prohibited Books. The grave danger presented to established authority by the printing press was that controversial speech could be disseminated more rapidly to a wider audience. In other words, print made such speech pervasive.

In the United States, courts and legislators have willfully failed to see the analogy between each new communications medium and print, the ancestor of them all. Sometimes discriminatory treatment of a new medium was based on a tautology, a finding that "it is different, therefore it is different." For more than 30 years, movies were denied First Amendment protection because the Supreme Court, in a 1915 case, refused to see any similarity between cinema and "the press." First radio, then television was held to be subject to a higher degree of censorship than books and periodicals because of "spectrum scarcity."

That argument does not apply to cable television: There is no firm upper limit on the number of channels that can be delivered to your house, as long as the company lays a powerful enough cable. But is cable TV, available in more than 60 percent of American homes, nonetheless "pervasive"? In the 1994 case Turner Broadcasting v. FCC, which dealt with the issue of whether cable companies could be required to carry broadcast stations, the Supreme Court said cable is not like broadcasting because it "does not suffer from the inherent limitation that characterizes the broadcast medium." This comment appeared to be a sign that the Court intended to keep cable free from the oppressive regulatory scheme applied to broadcast television.

But that did not happen. In the 1996 case Denver Area Telecommunications Consortium v. FCC, the Court ruled that cable television, though not "scarce," is "pervasive." The case involved a federal law requiring cable providers either to ban indecent programming or to block it, delivering it only to viewers who request it. Justice Stephen Breyer, writing for the plurality, approvingly summarized Pacifica's finding that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans" and that "patently offensive, indecent material...confronts the citizen, not only in public, but also in the privacy of the home." Such exposure, he said, was "generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears." Several other justices relied on Pacificain their concurring opinions. Only Justice Clarence Thomas took a clear stand against differentiating cable from print media. "The text of the First Amendment," he noted, "makes no distinction between print, broadcast, and cable media."

Commentators had long wondered why cable TV should be treated differently than broadcast TV, when the experience of watching them is essentially the same. Why should it matter, for First Amendment purposes, if the image is delivered to the house via the airwaves or over a cable? Denver seemed to give the Court's answer: It doesn't.

But this meant we were now facing the possibility of the "quite radical censorship" de Sola Pool had predicted. The next logical question was why it should matter if the same images or words are delivered to the house via the Internet. Congress did not think it should. With the Communications Decency Act of 1996, it applied the FCC's indecency standard to the Internet, establishing a penalty of up to two years in prison and a $100,000 fine for each violation. The law's proponents relied heavily on Pacifica and the pervasiveness argument to justify the legislation. Sen. Dan Coats (R-Ind.), one of the CDA's main sponsors, said during congressional debate in June 1995, "The Internet is like taking a porn shop and putting it in the bedroom of your children and then saying, `Do not look.'"

But pornography was not the only kind of speech that could be covered by the law's broad definition of indecency: "patently offensive" language describing sexual or excretory acts or organs. Consider a passage from Robert Jay Lifton's book The Nazi Doctors, a history of human medical experimentation in Auschwitz: "Experimental subjects--relatively healthy young men and women in their late teens or early twenties, who had been obtained by a previous day's order from the camps--were lined up in a waiting room.... Women were put between plates that pressed against abdomen and back; men placed penis and scrotum on a special plate....Not long after the x rays, the women's ovaries were removed surgically, often in two separate operations."

In June 1995, I placed this excerpt on the Internet as part of a compilation called An Auschwitz Alphabet (www.spectacle.org/695/ausch.html). In the three years since, I have received hundreds of e-mail messages from strangers around the world, including many teachers and schoolchildren, thanking me and describing their own responses to the Alphabet. The same year I published the Alphabet, Congress passed the CDA, which arguably made the Lifton passage illegal on the Internet. Because of my work on An Auschwitz Alphabet, I became one of 20 plaintiffs represented by the ACLU in ACLU v. Reno, the case that tested the CDA. Other plaintiffs included Critical Path AIDS Project (www.critpath.org), which provides information about safer sex, and Biblio Bytes (www.bb.com), which sells electronic books, including romance, erotica, and horror, over the Web.

A special three-judge federal panel in Philadelphia conducted a trial on the law's constitutionality in the winter and spring of 1996. One of the plaintiffs' witnesses was Scott Bradner, a senior technical consultant at Harvard University and a member of the Internet Engineering Task Force, who educated the judges about the nature and architecture of the Internet. During cross-examination on the first day of the trial, Justice Department attorney Jason Baron noted that Bradner had said in a deposition that the Internet was "becoming pervasive." Bradner explained that "by `pervasive' I mean omnipresent. It is available anyplace."

Throughout the trial, the Justice Department sought to prove that children could unwittingly stumble on indecent Internet content. Baron read an excerpt from a deposition by Donna Hoffman of Vanderbilt University, the leading expert on commercial use of the Internet: "Individuals must seek out the information they wish. Information doesn't suddenly appear, surprising them." Baron then described a hypothetical situation: Your child has been assigned to write a report on the book Little Women and wants to surf the Web for information. Refusing to take the bait, Hoffman said that a child who was competent in using the Web would use "Alcott" and "Little Women" as keywords for the search, rather than the book title alone. Baron handed her a government exhibit--the results of an Infoseek search on "Little Women"--and asked her to read the fifth item: "See hot pictures of naked women."

I later e-mailed Hoffman and asked her to comment on Pacifica'sapplicability to the Internet. She responded, "In contrast [to broadcast media], users of the Internet are active participants in the media consumption process. It would be extremely unlikely for a child --or any user not paying attention--to `stumble' upon indecent speech simply by clicking the mouse. Users must read streams of content and make informed choices about the links they want to follow. I am aware of no `trick' links on the Internet--that is, links that [claim] to offer one type of content but in fact deliver quite another, indecent type."

The three Philadelphia judges were unanimous in deciding that the CDA was unconstitutional and that the Internet was entitled to extensive First Amendment protection. Each wrote a separate concurring opinion. In his, Judge Stewart Dalzell addressed the question of whether Pacificaapplied to the Internet. The Supreme Court had not issued its Denver decision labeling cable TV "pervasive," which came only days later. Dalzell read the ambiguous pro-cable language in Turnerto mean that the Court, in the absence of "scarcity," would not find a medium to be pervasive. He concluded that "time has not been kind to thePacifica decision. Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against overreading the rationale of its holding."

But in a footnote, Dalzell wisely offered a second, independent argument against applying Pacifica to the Internet: "Operation of a computer is not as simple as turning on a television, and the...assaultive nature of television...is quite absent in Internet use....The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks."

A year later, the Supreme Court agreed that the CDA was unconstitutional--and that the Internet is not pervasive. Quoting the Philadelphia opinions, the Court noted that "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial." The Court added that "the Internet is not as `invasive' as radio or television."

It was the right result, but it was based on unstable ground. In future trials, the supporters of censorship will do everything they can to show that indecent Internet content can spring out at unsuspecting children. (Consider www.whitehouse.com.) And as the boundaries between the Internet and television continue to erode, with more and more people getting wired and increasingly high-quality video programming available online, the analogy between the media will become harder to resist. The Court has not overruled its ill-considered holding in Pacifica. It has simply found a flimsy technical excuse for not applying it to the Internet.