THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, February 25, 1996 TAG: 9602240055
SECTION: DAILY BREAK PAGE: E6 EDITION: FINAL
SOURCE: BY ANN G. SJOERDSMA
LENGTH: Medium: 94 lines
NO AREA OF constitutional law has been murkier than that dealing with obscenity.
Since the U.S. Supreme Court squarely ruled in Roth v. United States (1956) that ``obscenity'' is not protected by the First Amendment, efforts to define and regulate it, without impinging on protected speech, have yielded much confusion.
It is little wonder then that Congress' attempt to ban smut on the Internet, primarily to protect children, was temporarily blocked Feb. 15 by a federal judge.
And it's only fitting that the ruling by Judge Ronald L. Buckwalter of the U.S. District Court in Philadelphia perplexes everyone, including the American Civil Liberties Union, which led a coalition seeking to enjoin the law.
Not even Solomon can figure this baby out.
By 1968, when Justice John M. Harlan referred to ``the intractable obscenity problem,'' 13 obscenity cases decided by the Supreme Court since Roth had produced 55 separate opinions - an extraordinary divergence of viewpoints.
By 1973, when the Court decided Miller v. California, which yielded the still-prevailing obscenity ``test,'' Justice William J. Brennan, who wrote the Roth opinion, had waffled. He decided that obscenity could not be defined and that people should not be prosecuted for it.
He gave up.
As obscenity prosecutions have progressed from literature (``Ulysses'') to smut (Hustler), and from words to images, the Supreme Court has sought a high road of tolerance for what constitutional scholar Laurence Tribe calls ``the tastefully salacious.''
Meanwhile, the public, reacting to increased violence and perceived declining morals, has sounded an alarm of repression not in tune with an openness of mind.
Only free-speech absolutists, who believe anything goes, and puritanical moralists, who believe nothing goes, now stand on firm ground. Most of us are neither.
And now we have the open roads of the information superhighway. What goes there? And how in the world can it be regulated?
Thanks to an ``on-line'' civil libertarian friend, I obtained a copy of the Communications Decency Act, which is part of the Telecommunications Act of 1996 that President Clinton signed Feb. 8. In crafting its anti-obscenity laws to protect children, Congress borrowed some pat phrases from the Miller decision.
But the words don't cut constitutional mustard.
Why? Because there are no brown envelopes in cyberspace. Children can find objectionable information that was not intended for their eyes.
According to the act, short of threat or harassment, adults may engage in sexual expressions that some may consider erotic, others depraved. The choice is theirs.
The laws designed to shield minors are more confusing.
In blocking enforcement, Buckwalter ruled that the term ``indecent,'' used in provisions protecting adults and children targeted by adult pornographers, is unconstitutionally vague.
I think Buckwalter is wrong on this point. Precedent suggests he is.
But more questionable is the judge's approval of a provision that prohibits using an interactive computer to ``display in a manner available to a person under 18'' any communications that depict or describe ``in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.''
Whew.
The phrases ``patently offensive'' and ``community standards,'' are straight out of Miller v. California. But instead of using Miller language about prohibited ``sexual conduct,'' Congress ventured into ``sexual or excretory activities or organs,'' a phrase that encompasses scientific, educational and otherwise permissible, non-obscene material. Talk about penile implants or ovarian cancer, for example.
Yes, the term ``patently offensive'' modifies it. But does the modifier save the phrase from constitutional challenge? Buckwalter said it did. But the broad language is suspect. (The Supreme Court is currently reviewing similar wording in a cable-TV regulation.)
The bigger problem, though, is that the law applies to anyone who places obscene material in a public place that minors might happen upon. Thus it impinges on adults' free speech, without solving the issue of child access. Short of standing over children's shoulders while they surf the Internet, or electronically blocking them from home, how are they to be prevented from viewing adults-only pornography?
My civil libertarian friend suggests parental controls, not governmental ones. I am inclined to agree. Unless, or until, a transmitter (i.e., the pornographer) can block out children, I can't imagine a constitutional censorship system that does not hinge on parental intervention.
Buckwalter's shaky decision will be reviewed by a three-judge panel - which includes himself. The whole confusing mess will eventually end up at the Supreme Court's door, where I predict Buckwalter's ruling will be reversed.
We may travel in cyberspace, but in some ways we're still stuck in 1956. MEMO: Ann G. Sjoerdsma is a lawyer and book editor of The Virginian-Pilot. by CNB