ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, December 12, 1996 TAG: 9612120039
SECTION: EDITORIAL PAGE: A-10 EDITION: METRO
THE COMMUNICATIONS Decency Act of 1996 was conceived in ignorance, born of cynicism and now lurks as a threat to the freedoms of all Americans. May the beast finally be slain by the U.S. Supreme Court, which last week agreed to put on its docket a case challenging the act's constitutionality.
Passed by a Republican Congress, signed and now defended by a Democratic president, the act is currently on hold. Federal judicial panels in separate cases in Philadelphia and New York have found, with good cause, that it blatantly violates the First Amendment's free-speech guarantees. The high court will hear the Clinton administration's appeal of the Philadelphia decision; the court's ruling then will presumably cover the more narrowly decided New York case as well.
Like many another bad law, this one's origins lie in legitimate concerns - in this case, the fear that children, unbeknownst to their parents, might download pornography or even meet molesters via the Internet.
Unfortunately, the response was political pandering rather than realistic and liberty-respecting legislating. The act would impose a broad ban on "indecency" - which, unlike the more strictly defined "obscenity," is protected by the First Amendment - if presented "in a manner available to a person under 18 years of age." The latter clause apparently would put under government review virtually anything that moves over the Net, even E-mail.
At the cost of suppressing adults' free speech, the act would add virtually nothing to the legal tools already available for law-enforcement authorities to go after child pornographers and molesters. That the act would be impossible to enforce in any comprehensive way might seem a mitigating factor, until you consider the potential for selective enforcement - including, say, of computer users harboring inconvenient political opinions. Why should American bureaucrats be defining what's "indecent" amid millions of communications among computers across the world?
Initially, the act appeared to reflect ignorance of the new technology on the part of older generations that tend to populate the corridors of governmental power. For years, on the grounds that they are uniquely intrusive into homes with children, over-the-air broadcasters have been subject to closer governmental regulation than has been deemed constitutionally permissible for other forms of communication. Because TV screens look like computer monitors, many lawmakers seemed to think of television and the Internet as analogous.
They're not. Television is one-way and intrusive; the Internet is interactive and unintrusive. A click of the button brings up a TV program; Internet users must go through a series of affirmative steps to get something up on the screen. Over-the-air TV choices are limited and rigidly channelized; Internet choices, and sources, are vast. Television is a product beamed to an audience; the Internet is a huge complex of multilateral conversations. What's more, the act ignores the ready availability of software by which parents can block sexually explicit material on the Net.
Of course, even Congress has a learning curve. It jettisoned, for example, a provision that would have made Internet providers liable for what went out over the linkage, which would have been like holding the phone company responsible for obscene phone calls. And in the end, Congress and the administration knew full well they were on shaky constitutional ground. Otherwise, they wouldn't have included a provision mandating Supreme Court review of their own legislative offspring.
If it's the court that must stop this pernicious folly, so be it. But the court might not - and even if it does, the folly shouldn't have made it this far.
LENGTH: Medium: 66 linesby CNB