Decency laws have a long, disreputable history in this country, beginning with the Civil War, when shock over obscene photographs (the camera was a new technology) sent to soldiers at the front led to the passage of the first laws and the formation of the infamous New York Society for the Suppression of Vice. Anthony Comstock, its chief enforcer, travelled the country as an unpaid special agent of the Post Office, destroying the lives of scores of essayists, journalists, and sex educators while banning novels of Balzac, Tolstoy and Zola from distribution in this country. Ida Craddock, author of Advice to a Bridegroom was one of fifteen women who Comstock bragged he had driven to suicide in a forty year career.
In short, decency laws, originally passed to target sexual photographs, were soon used to bar all kinds of literary and political speech in this country, which is the inevitable result of laws pertaining to speech.
Over the decades, the Supreme Court has all but gutted decency (as opposed to obscenity) as a permissible area of legislation. In Cohen v. California, the Court overturned the conviction of a protestor who wore a "Fuck the Draft" t-shirt into the Los Angeles county courthouse. (Using the word "fuck" is a crime under the Internet indecency law described above, even though I used it in a dry and informative context to describe a court case. The Internet law, like indecency laws in general, makes absolutely no exception for speech with scientific, literary, artistic or political value.) Similarly, it intervened on behalf of people who had been convicted of using four letter words at school board meetings or to police officers. In short, the Court had now established that indecent speech could not be prohibited in print media or in everyday life. Finally, in Pacifica Foundation v. F.C.C., the Court considered the seminal question of indecency in broadcast media.
Broadcast has always been considered a special exception to free speech laws, for two reasons. The more important one is the scarcity of spectrum. Because since the 1920's the government has intervened to assign frequencies to broadcasters, a corresponding responsibility to monitor the content of broadcasts has been recognized. The second, subsidiary reason that is always mentioned in the cases--it has never yet been used by itself to justify censorship--is the pervasiveness of the medium. Because radio and TV come into the house, and may be heard or seen by unsupervised children, the government has a special responsibility, as Herbert Hoover said, to "doubleguard" them. Since far more people get their information about the world from radio and TV than from newspapers or magazines, most of us learn everything we know from a censored medium, without ever stopping to think about the implications.
The F.C.C. case involved a broadcast by public radio of George Carlin's "Seven Dirty Words" monologue, about the seven dirty words "you definitely couldn't say on the air, ever." The monologue was replayed as part of a serious show about broadcast censorship, at three o'clock in the afternoon. The Court held that indecent language could not entirely be banned from radio and television but could certainly be regulated in various ways, including a requirement that it only be broadcast late at night, when children are not listening. The Court upheld a fine for Pacifica for broadcasting dirty words in midafternoon.
In case you're interested, the dirty words banned by the F.C.C. regulations mocked by Carlin were shit, piss, fuck, cunt, cocksucker, motherfucker and tits. By listing them for you in the context of a serious discussion, I have again violated the Internet indecency law.
One of the reasons the Court declared itself comfortable with the seven dirty words ban was that any idea could be expressed by the use of alternate words. After all, no one needs to say "shit" when the same concept can be expressed by a variety of synonyms. Ironically, the F.C.C., goaded by Congress, threw out the seven dirty words ban a few years later and replaced it with the "sexual and excretory functions" standard. (Congress is now borrowing this standard to apply it to the Internet.) Note the inevitable creep of censorship, from banning words to banning ideas. The government was perturbed by the ability of popular broadcasters like Howard Stern to say quite filthy things without using any of the seven words.
A number of court battles have been fought since then pertaining to cable and telephone indecency, and here's where things stand today. The Supreme Court has stood firm that indecent speech cannot be completely banned from any regulated medium. The act of regulating indecent speech by moving it into a corner where minors cannot easily get to it is commonly referred to as "channeling". Three main forms of channeling have been applied in the regulated media: reverse blocking, time channeling, and the use of credit cards to get access. Reverse blocking is governmentese for a form of censorship in which you have to write a central office asking for indecent material and then wait a few weeks before you can get it. In the '60's, the Supreme Court held that the Post Office could not legally engage in reverse blocking of Communist publications. Appeals Courts have twisted the facts around to distinguish cable and telephone blocking from the Post Office case. The Supreme Court has agreed to hear an appeal of a cable case and will rule on reverse blocking sometime this year.
Current FCC regulations allow indecent speech only after ten o'clock at night on TV and radio. Telephone sex lines can avoid reverse blocking if, instead of appearing on your local phone bill, they take a credit card from users, as this is considered a way to keep minors away.
Note that Congress has regulated cable without the justification of scarcity. Cable does not use the broadcast spectrum and is not scarce by any definition. The tortuous rationales used by courts to justify cable regulation include statements like "television is television," no matter how it comes into the house. Worse, Congress has hypocritically made cable indecency laws apply only to people who lease channels or use public access channels, but not to the cable providers themselves who own both the wire and most of the content that enters your house. It is hard to tell whether it was more important to attack indecency or to restrain competition for the cable providers. In the meantime, the F.C.C. and the Supreme Court have both said the scarcity rationale is not a strong one even for broadcast media any more. Technological improvements have allowed many more stations to share the spectrum; ironically, broadcast stations far exceed newspapers in this country.
What Congress has done by applying this standard wholesale to the Internet is insidious. First, the Net is not scarce in any sense--there is no limit to the number of computers that can be attached to it. Secondly, it is not pervasive in the usual sense of the word. Courts have drawn a distinction between broadcast media, whose waves enter the house uninvited, and cable, which is invited in. The Net falls into the latter category. Unmentioned in Congress during the debate on online indecency is the fact that no child can get access to the Net unless a parent has set up an account and given the child the password. In other words, channeling is already occuring.
As we enter an era in which electronic print is increasingly supplanting paper, the Internet must be treated as a constellation of printing presses and bookstores. Thus, indecency laws applied to online speech should be wholly unconstitutional, as any attempt to regulate paper would be. Indecency regulation for the Net can only succeed if its proponents succeed in demonizing the Net and convincing legislators and judges that it is something different, more dangerous than print. Well, forces such as the Christian Coalition have successfully confused the Congress; it remains to be seen if the judges are more clear-headed. I (and scores of other people) have volunteered to be a plaintiff in the lawsuit that will soon be brought to challenge the new law.
Even if a court determines that the Net can be regulated like broadcast media, the Internet indecency legislation goes far beyond existing FCC regulations because it provides no definition of channeling. All prior laws contained clauses explaining how to comply with them--by reverse blocking, credit cards or shifting bad speech to a late hour. The Net legislation contains no advice on channeling and therefore effectively bans indecent speech entirely-- something the Supreme Court has said that Congress cannot do.
Can the Net be channeled? As I mentioned a moment ago, it already is, via the credit card most of us use to set up an account and the password that must be used to log on. If further channeling is needed, three alternatives are on the way to becoming a reality. To preserve the diversity of speech on the Net, channeling should either occur on the user's own machine, or as close to it as possible. Software like "Surfwatch" installed on the home PC can screen out speech unfit for children. Users can subscribe to the Net via services like Prodigy or Bessnet which screen out indecent speech for them. A self rating system, coupled with browsers set to screen out material with adult ratings, is also under development.
Congress, despite Senator Leahy's brave efforts, would not wait to allow us to define channeling for the Net. Apparently, a few lives must be crushed to make a point. The impact of the indecency laws is that no speech may be uttered online that would offend a member of the Christian Coalition. No matter that your standards may be different. Personally, I raised a completely moral child-- now employed, engaged to be married, and a model citizen--who was allowed to read anything he wanted and to hear and say the seven dirty words while growing up. We taught him respect for human beings rather than fear of words.
A few readers may be asking why we should care about indecent speech. To answer the question, try the following thought experiment. Stand in your neighborhood bookstore and look at the shelves packed with books. Now imagine that every book disappears which flunks the "sexual or excretory acts or organs" test. The shelves are suddenly two thirds empty. Not only steamy trash bestsellers are gone. You have lost Balzac, Zola, Hemingway, Joyce, Rabelais, but also books on AIDs, safe sex, rape, domestic violence, Our Bodies Ourselves, Freud and even the Bible.
The way in which we are born is indecent under the standard. Acts we perform every day are indecent. Men do not simply exist from the waist up, and women from the shoulders. All of our discourse, our art, our analysis of ourselves and our world must take into account the complete human being. If you give our artists, novelists, scientists and commentators only half the human being to work with, you give them nothing.
Decency is a Victorian standard. It is an exploded category, like "phlogiston". It has nothing at all to do with morality. A terrible human being can be thoroughly decent, never mentioning sexual or excretory matters in public, and a human brimming with altruism, self sacrifice and other wonderful qualities may be thoroughly indecent. Hitler was reportedly quite decent to guests, while Gandhi sometimes spoke of physical functions to interviewers and even to the world.
Indecency laws prevent speech against as well as for the banned ideas. Canadian customs routinely prevents the import into that country of explicit, anti-pornography feminist work by authors like Andrea Dworkin. A preacher thundering against abomination may use explicit phrases to describe that which is forbidden. We are not simply ruling some over-charged words out of our vocabulary; we are placing an entire world of ideas, the principal though not the sole subjects of moral discussion, off limits. But, if we cannot speak of these ideas, how can we formulate our values or know ourselves? Here is the promotion of "mass ignorance" which Charles Beard said could never happen again now that we have mass media to disseminate information.
Yeats spoke of the "foul rag and bone shop of the heart" from which the artist climbs the ladder to his art. Indecency laws deny the existence of this level of human experience, put it off limits to us entirely. The most complete censorship is the one that denies you the ability to form a vocabulary. By aiming Internet indecency laws at ideas, rather than already formed words, Congress has instituted absolute silence. Can a preacher condemn evil without telling what it is? How do you formulate "thou shalt not kill" if the word kill and the idea of killing are forbidden?
"Ignorance is bliss" was of course one of the tenets of the exaggerated world George Orwell portrayed in 1984. Our democracy, as part of the liberty granted, gives each of us the latitude to decide, for ourselves, and for our children, how ignorant to be. You have the right to declare all books sinful and refuse to permit them in your house. But you cannot ban books or ideas from entering my house. Indecency laws take choice away from the head of household who does not want his children to be ignorant of life. "Silence is golden" may be Pat Robertson's or Senator Exon's rule, but it is not mine.