Censorship in the Most Dynamic Forum

Why Giving Congressional Republicans Control of the Internet Is Big Mistake

The past few years have witnessed the phenomenal growth of perhaps the most open, egalitarian and powerful public forum history has ever known the Internet. Now, in an unsurprising reaction to its popularization, questions are arising as to what degree of free expression is to be allowed on the net. Two recent occurences have brought this issue to the forefront on a national level, and to a lesser extent on a collegiate one as well.

First of all, Congress is in the midst of developing legislation to regulate what can be said on the Internet. Last Wednesday a House-Senate conference committee agreed on the content of a new bill which would impose tough prohibitions against transmitting obscenity and "indecent" material over computer networks. The bill would include fines and prison terms for people who make "indecent" material available to minors. "Indecent" material is a step removed from explicitly sexual and pornographic material, and covers four letter words and sexual material deemed "patently offensive" by local community standards. (For those of you hissing "Newt" between clenched teeth, be reassured; he actually opposes these measures.)

Secondly, a few weeks ago several Cornell freshmen raised an uproar on the college scene by composing an email message that was offensive to women and that included curse words. The email, which was widely distributed, led many to call for official action to be taken against the authors. In the end, Cornell's administration didn't punish the four freshman, but it perhaps would have been forced to if the indecency bill had been law at the time of the incident. In addition, the four authors might have faced federal charges for writing what was essentially a private communication between them and their friends. The reason for this is that the amazingly fast and undirected manner in which information spreads on the Internet makes almost any piece of information potentially available to millions of people on-line; including many minors. Thus, the act of making indecent material available to minors, which the bill is trying to prevent, is basically indistinguishable from simply posting such material on the Internet in any shape or form.

This is not only a blow to freedom of expression, but a dangerous violation of the right to privacy. Since a simple email message can wind up on databases worldwide, the indecency bill would essentially limit people in what they can write to their friends or associates, for fear of incurring an indecency charge as their email unintentionally makes its way into the public forum. It can be argued that those using email must be sensitive to the fact that it is not secure and therefore shouldn't write things that will get them into trouble. However, if I were to write a physical letter to my friend in which I describe women in terms of a lot of nasty four-letter words, and he were to hang the letter on a local bulletin board, I certainly wouldn't and shouldn't suffer any legal repercussions. By analogy, if this indecency bill were to be applied to the U.S. Postal Service, I would face five years in prison and $100,000 in fines. Email is still essentially mail, regardless of how easy it is to pass along, and should enjoy the same protections from censorship.

Another major problem along the same lines is that the bill targets not only those who originate indecent material but those who carry it, however unsuspectingly. Thus, all the commercial on-line service as well as universities and businesses would be require to monitor the information passing over their lines and stored on their computers, and would be responsible if anything "indecent" found its way into the hands of a minor. (To continue the previous analogy, the man whose store the bulletin board hangs in would also face legal trouble.) The responsibility of content-monitoring is an unreasonable burden to place upon network providers whose systems handle a vast flow of information.


Unfortunately, a recent libel case brought against Prodigy in the New York State Supreme Court resulted in a ruling that the on-line service was responsible for a comment posted by an anonymous user. Part of the rationale for the decision was that Prodigy does do some monitoring of its content and therefore, like a publisher, is liable. This decision leaves such companies in the awkward position of having to either leave their content entirely unabridged, or monitor it with a ridiculous degree of stringency. However, there was another, more heartening legal precedent set recently. Federal judge Leonie M. Brinkema, in a case brought in Virginia by the Church of Scientology, admonished the Church for using copyright law to silence on-line critics. He called this motivation "reprehensible". Essentially, what the Church had been trying to do was to use intellectual-property law to restrict the expression of those who disagreed with it.

Thus, while the Prodigy decision may bolster the attempt of the indecency bill backers to hold Internet providers responsible for their users' postings, the Scientology case upholds the broader and more important theme that it's wrong to use the law to restrict freedom of expression. (In cases where neither libel nor intellectual property violations have truly been committed.)

Republican Representative Henry I. Hyde, who is leading the charge of the indecency brigade, ought to realize that his motivation is essentially the same as the Church of Scientology. The only ostensible difference is that the church is trying to protect its own interests, while Mr. Hyde has a much more lofty goal: to protect the nation's children. What he doesn't seem to realize is that his conception of what children should or shouldn't read is as arbitrary as what the Church of Scientology thinks the public should or shouldn't read. This all assumes, of course, that those in favor of the indecency bill are honest about their intent and aren't using children as a lever to restrict expression of ideas they simply don't like. After all, a frank discussion of AIDS or homosexuality--anathema to family-values Republicans--might be rendered "indecent" and therefore banned by this bill.

Up to now this piece has focused on the indecency bill's sweeping and unacceptable repercussions for those who unintentionally make "indecent" material available to minors. What about individuals or companies that deliberately post such material in a way that can reasonably be expected to reach children? Even if it wasn't apparent that it will be almost impossible to differentiate between intentional and unintentional postings on the dynamic medium that is the Internet, punishing deliberate posters is a dubious matter. To begin with, the definition of indecency currently in place is way too open ended and is arguably unconstitutional. There is simply too much valid discourse that can be rendered technically obscene by this bill. For example, since I'm now going to mention the word "penis" as an example of something that can easily be considered indecent, this piece would not be allowed on the Internet if the bill became law. It's pernicious that under this bill, documents describing what the bill prohibits would not be allowed on the internet.

There's no doubt that many Americans are concerned that their children will be exposed to unsavory language and ideas. The indecency bill is simply not the solution, however. Even if it were possible to come to a national consensus about what is obscene and damaging to our children, the cost of preventing it on the immense and open public forum that is the internet would still be prohibitive. And considering the vague nature of indecency and its even more vague effect on youngsters, the price we would pay in freedom for supposedly protecting our children is simply unacceptably high. One alternate solution might be a software equivalent of the proposed V-chip, which will allow parents to block violent television programs. For instance, network software such as Netscape might allow parents to content-regulate their children's browsing on a private and individual basis. Additionally, we must not forget that the American people always have the option of asking individuals and private companies to voluntarily regulate what they post.

And finally, we must remember that at the heart of the indecency bill is an arbitrary moral judgment of what is good speech and what is bad speech. It's disturbing that 200 years of democracy have not properly instilled the sentiment that the market place of ideas, and not a heavy-handed government ordinance, should regulate how people express themselves.