The Internet Censorship FAQ


The Internet Censorship FAQ was created by Jonathan Wallace and Mark Mangan, co-authors of Sex, Laws and Cyberspace, a new book on Internet censorship from Henry Holt. Some of the material in the following is taken from the book. The Table of Contents and internal links were added by August Brunsman.

Please redistribute this FAQ freely in relevant forums.


Table of Contents

#1: What threats of censorship exist for the Internet?
#2: What is the Communications Decency Act (CDA)?
#3: Is the CDA unconstitutional?
#4: What rationales are advanced by the supporters of the CDA?
#5: Is the CDA necessary to protect children?
#6: Is regulating the Net similar to regulating the telephone, radio or TV?
#7: Doesn't the CDA merely attempt to channel indecent speech on the Internet?
#8: What about the argument that the Internet is "pervasive"?
#9: What is being done to combat the CDA?
#10: Has a federal court restrained enforcement of the CDA?
#11: What is the relationship between the CDA and obscenity laws?
#12: Is it true that the CDA outlaws putting abortion information on the Internet?
#13: Where can I go for more information?

What threats of censorship exist for the Internet?

The principal threat of Internet censorship today is the Communications Decency Act, a law passed by Congress and signed by the President in January, 1996 which would apply quite radical regulations to speech on the Internet.


What is the Communications Decency Act (CDA)?

The CDA criminalizes "indecent" speech on the Internet. One section of the CDA defines indecency as speech depicting or describing sexual or excretory acts or organs in a patently offensive fashion under conetmporary community standards. Each of these clauses--indecent, depicting or describing, patently offensive, and contemporary community standards--hides a landmine threatening the future of freedom of speech in this country.


Is the CDA unconstitutional?

Yes. The basic U.S. rule on freedom of speech is the First Amendment to the U.S. Constitution, which says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Supreme Court cases, notably including Butler v. Michigan (1957), have held that indecency standards cannot be applied to printed matter (that case overturned a law which banned books unfit for children). The extremist rationale of the CDA is that censorship which would be impermissible for the printed word is appropriate for the electronic word, and that works which are protected on paper are subject to censorship on a computer screen.

There is no justification for treating the printed and electronic word differently. The consequences of doing so will become most apparent in the next century, as printed books and magazines continue to decline in importance compared to the sheer volume of words available online. If the full protection of the First Amendment applies only to books and magazines printed on paper, then the First Amendment will become a historical curiousity.


What rationales are advanced by the supporters of the CDA?

The CDA's supporters advance two significant reasons for the law: it is necessary to protect children; it is constitutional because the Internet is no different than the telephone or broadcast media and may be regulated similarly. We will deal with each of these individually.


Is the CDA necessary to protect children?

First, and as a dispositive matter, the constitutionality of the CDA cannot turn on whether it protects children, despite the emotional appeal of this issue. The Supreme Court in Butler v. Michigan did not spend a lot of time considering the state of youthful minds and the measures available to protect them; it held, instead, that setting all public discourse in Michigan at the level acceptable for children would be "burning down the house to roast the pig." A law banning books by Miller, Joyce, Burroughs and Nabokov might also protect children who might get hold of them, but would be completely unconstitutional under the First Amendment.

Proponents of the CDA have completely ignored the fact that no child can connect to the Internet without the help of an adult. Signing up for an Internet account typically involves presenting a credit card to an ISP. Adults who wish to allow their children to surf the Net unsupervised can sign them up through a child-safe service like Prodigy. Childhood specialists universally criticize parents who allow their children to vegetate in front of the TV unsupervised; the Net raises the same issues of parental responsibility. Ironically, the same Congress that mandated the V-chip--which would allow parents to stop undesirable broadcasts at the TV--passed the CDA which addresses the same problem by eliminating undesirable speech from the entire Internet.

A mature, measured approach to the problem of explicit online speech would involve parental supervision and local screening, not wide-ranging censorship. See the Voters' Telecommunications Watch Parental Control FAQ.


Is regulating the Net similar to regulating the telephone, radio or TV?

Not at all. The telephone and the broadcast media are all government-supervised monopolies, and Congress and the courts have recognized the government's right to supervise content as a result. However, the right of government intervention to ban indecent language recognized for these other communications media, though cited as a precedent for the CDA, is actually far less than the profound censorship the CDA envisions.

The government and the phone company itself can play no role in regulating the contents of private conversations. In fact, the phone company, as a common carrier, is legally required to carry any kind of private communications without making any distinctions. In the 1980's, disturbed by the growth of adult 900-line services, Congress tried banning them; the Supreme Court held that indecent speech could not be banned from phone lines. Instead, Congress passed a law, which the Court upheld, mandating that 900-line services require credit cards or, if billed by the local phone company, be "reverse blocked" (you can't get access unless you request it from the local phone company in writing.) These regulations have allowed 900 line services to exist, while significantly blocking access to minors.

By contrast, government involvement in radio and television is based on the "scarcity" doctrine, which holds that government censorship of content is justified by the government's role in assigning broadcast frequencies on a scarce spectrum. The Supreme Court, in the famous Pacifica (seven dirty words) case, held, as with the telephone, that indecent language cannot be completely banned from radio and television. Current FCC regulations allow indecent speech on broadcast media after ten o'clock at night.

The Internet is not a "scarce" resource and anyone can attach a computer to it without asking the government's permission. Nor is it a government-licensed common carrier like the phone company. Moreover, the regulations which have been held constitutional for telephone, radio and TV merely seek to shift ("channel") explicit speech to a time or place where children cannot access it, but not to ban such speech entirely.


Doesn't the CDA merely attempt to channel indecent speech on the Internet?

The CDA is extremely ambiguous on this point--with the result that the only safe thing to do is to avoid controversial speech entirely, as many users are already doing.

Unlike laws pertaining to telephone, TV and radio, which clearly spell out what is safe (take a credit card, broadcast after ten p.m.), the CDA as written gives absolutely no guidance.

None of the methods of channeling decreed for other media works well, or at all, on the Net. The only rational solution for channeling speech on the Net is the parental control solution the Congress rejected even as it was mandating the V-chip: promote the use of child-safe ISP providers and local software to screen undesirable speech.


What about the argument that the Internet is "pervasive"?

Ithiel de Sola Pool, who in 1983 published a really prescient book called Technologies of Freedom, predicted that the doctrine of "pervasiveness" would someday be used to justify quite "radical" censorship. That day has arrived.

"Pervasiveness" is an ill-thought out doctrine that has been around since the 1880's, when a court allowed a local phone company to deny service to a subscriber on the grounds that he used foul language. The court's reasoning was that the wires might get crossed, and another family might pick up its telephone to hear this man cursing!

The "pervasiveness" of radio was frequently cited by Herbert Hoover and others to justify the FCC's role in the 1930's in censoring the contents of radio broadcasts. The concept simply describes the fact that a communications technology reaches into the home; radio, said Hoover, must be "clean and safe for home consumption". However, courts, which have frequently mentioned the pervasiveness argument in media cases, have never used it as a basis for upholding a scheme of censorship unless "scarcity" (see above) was also present.

If pervasiveness, standing alone, justifies censorship, then it is hard to see why the Supreme Court overturned the state law in Butler v. Michigan, which outlawed books unfit for children. One would hope that books are also pervasive, with at least one or two of them invading most houses.

Proponents of the CDA would argue that books must be brought into the house, while the Internet somehow comes in unbidden. The courts have given some credence to this argument, holding that broadcast waves pass the walls of your house whether you want them to or not. However, the Supreme Court has most recently suggested that the "pervasiveness" argument would not be valid for cable televsion, which it characterized as an invited guest in the home. This suggests that the Court would also find (as it should) that the Internet is also invited into the home and is not "pervasive."


What is being done to combat the CDA?

The American Civil Liberties Union, Center for Democracy and Technology, and other organizations have filed lawsuits to hold the CDA unconstitutional. One of these lawsuits is scheduled for a hearing in federal court in Philadelphia at the end of March 1996, during which a three-judge panel will determine if the CDA is unconstitutional under the First Amendment. One of the authors of this FAQ, Jonathan Wallace, is a plaintiff in that lawsuit.


Has a federal court restrained enforcement of the CDA?

Only in part. The Philadelphia court said that one section of the CDA, which refers to indecency without defining it, is vague. However, upon a first look, the court did not think that the companion section, referring to "sexual or excretory acts or organs", was too vague. The court will take a more detailed look at the constitutionality of the CDA after the preliminary injunction hearing, which begins on March 21.

In the meantime, the government has agreed not to bring any indictments under the CDA--but behavior that is occuring now may still be prosecuted after the court reaches its decision, assuming it leaves the CDA alive.


What is the relationship between the CDA and obscenity laws?

Prior to the CDA, federal obscenity law already applied to material distributed on the Internet, as the Amateur Action case illustrates. Under that law, as interpreted by the 1973 Miller case, obscene materials are those which are (i)prurient and (ii)patently offensive under contemporary community standards and which (iii) lack significant scientific, literary, artistic or political ("SLAP") value. Cases in recent decades have indicated that only visual images--photographs and films--will be held obscene under this standard, as pure text is always found to have at least minimal literary value.

The CDA makes illegal a large zone of speech which obscenity laws don't touch--material depicting or describing sexual or excretory acts or organs, which is not prurient, but is patently offensive to somebody, even though it has SLAP value.


Is it true that the CDA outlaws putting abortion information on the Internet?

It's true. One section of the CDA confirms that the federal postal obscenity law, first passed in 1873, applies to cyberspace. That law included a section which hasn't been enforced in decades, but which is still on the books, making it illegal to pass abortion information across state lines. Congressional backers of the CDA claim they didn't intend to outlaw the communication of abortion information on the Internet, and President Clinton has said that he will not allow the Justice Department to enforce it. Nevertheless, the law is on the books, and could be enforced in a future presidential administration, if it is not thrown out by the federal court.


Where can I go for more information?

Check out the following organizations:

The American Civil Liberties Union

Voter's Telecommunications Watch

Electronic Frontier Foundation

Center for Democracy and Technology

The Ethical Spectacle


The Internet Censorship FAQ was created and distributed by Jonathan Wallace, jblumen@spectacle.org, and Mark Mangan, markm@bway.net. The Table of Contents and internal links were added by August Brunsman, ab4@ganet.net. ------------------------------------------------------------------------------ First Amendment of the Constitution of the United States of America: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.