A postal inspector, a stockbroker, an obnoxious radio personality, a United States senator, a fringe church, an FBI agent, a thirty-year old college student....
These are the self-appointed censors of the Internet. Each of them has used the civil and criminal laws of the United States to try to silence speech or has given others the ammunition to do it.
History is repeating itself. During the Civil War, a new technology, photography, led to the creation of nude photographs which were sent to soldiers at the front via the U.S. mails. The postal obscenity law, which is being used to prosecute computer pornographers today, was passed by Congress in 1873. Immediately, volunteer censors such as Anthony Comstock came forward to enforce the laws by mercilessly hounding not only pornographers but sex educators and novelists whose output they believed to be indecent.
Comstock was the founder of the New York Society for the Suppression of Vice. The U.S. Postal Service designated him an unpaid special agent, giving him the right to go into any post office in the nation and open mail he believed to be obscene. Comstock would lobby Congress by entering its halls with a sack, the contents of which he would dump on the table: obscene photographs, abortion aids, aphrodisiac powders, all of which had passed through the U.S. mails.
The new Anthony Comstock is Senator James Exon, and instead of a sack, he prowls the halls of Congress with his Blue Book, a collection of obscene and indecent materials he has downloaded from the Internet. "Click, click, click," says Senator Exon. "Page after page... pornographers, predators and pedophiles." He and others like him appear to think that the Internet is a million-armed hydra, reaching into every American household to strangle the children.
There is pornography on the Internet. There is explicit but legal sexual material , which Senator Exon would outlaw with the vague provisions of his Communications Decency Act. There are bomb recipes, militia materials, hate speech of every stripe---mixed in in small amounts with the political, legal, medical, technical and sports-related resources, the rock music fan pages, the science fiction resources, the Fish Cam and the Magic Eightball.
Free speech is sloppy. The reason the First Amendment protects almost all speech is that, with very limited exceptions, we have never succeeded in agreeing which speech is good and which is bad. Therefore, the First Amendment says, we will not make content-based distinctions; there should not be censorship; the cure for bad speech is to overwhelm it with good speech, but not to silence it.
For these reasons, hate speech is legal in the United States--the Nazis were permitted to march in Skokie, Illinois. Pornography which falls short of the legal definition of obscenity may be freely distributed. Many grotesque thing--denials of the Holocaust, catalogs of S&M materials, a talk show host's advice on the best way to shoot federal agents--are all protected by the First Amendment. If these materials are legal off the Internet, what is the justification for treating them differently on the Internet?
Well, says Senator Exon, they are pervasive. They come into the house. Ten year old children who understand the computer better than their parents do, will find them.
But we have crossed this bridge before. In 1957, the Supreme Court held that the state of Michigan could not set the acceptable level of public discourse at what was fit for children. Opponents of the Communications Decency Act point out that parents cannot abdicate their responsibility to know, and regulate, what their children are doing with the computer, any more than they can ignore the movies their children are seeing. New software will help parents to lock pornography and violence out of their children's computers when the parents themselves cannot be there to monitor.
The first chapter of this book tells the story of a pair of computer pornographers from Milpitas, California who were indicted and convicted in Memphis, Tennessee. Robert and Carleen Thomas are married and have two sons. Together, they ran the Amateur Action Bulletin Board, from which they distributed GIF images that are explicit and in some cases, repellent, violent and grotesque.
Today, they are both in prison. When you have read their story, you may conclude that they deserve it if you believe that obscenity laws should exist, you will certainly believe that some of the material they distributed (involving rape and torture) was obscene. So why should we care about them?
For two reasons. First, the obscenity laws mandate that local community standards the standards of the community where the jurors reside must be applied to the material in question. This rule, promulgated by the Supreme Court in 1973, made minimal sense then. Today, as you will see from the Thomas case, it permits Memphis, Tennessee to set itself up as the arbiter of all cyberspace.
Secondly, there really is a slippery slope; it is not just a fantasy of the ACLU, the NRA and other organizations who would have you believe that a little regulation (of speech, guns, whatever) will lead to total prohibition. The proof is in the story of the original Anthony Comstock. His mission began with obscene photographs; but in his forty year career, he prevented the publication in this country of novels of Zola and Balzac , and drove an early sex educator, Ida Craddock, to suicide.
Yes, you say, but those were the wild old days; we know better, and it can't happen now. Wrong: the new Comstock and his colleagues will do everything the old Comstock did, if permitted. In the last few years, the curator of an art museum has been indicted for displaying the explicit works of a respected art photographer. A rap group has been prosecuted for its lyrics. Cyberspace presents a new playground, a new field of endeavor, for censorship as it does for speech. If Senator Exon succeeds in getting his Decency Act adopted as law, new and extraordinarily vague rules will allow him to go after anything "indecent". If you think Zola, Balzac, James Joyce, Henry Miller, Lenny Bruce could never be prosecuted again, think twice. To paraphrase Pastor Niemoller: First they come for Robert and Carleen Thomas, then they come for you.
Why do the would-be censors find the Internet so frightening? Because it is a cheap, easily accessible means of communication almost free of social control.
If you have an idea good, bad, indifferent that you want to communicate to 250 million Americans, your choices are very limited. To get your idea into the New York Times, Time, 60 Minutes, the Rush Limbaugh Show, a movie from Paramount, or a book from Henry Holt and Company, you will have to convince someone usually an older white male in an office in Manhattan or Los Angeles that your idea has merit. He will examine it from two perspectives: first, to see how it fits with his own preconceptions and prejudices; secondly, to determine if it has commercial appeal and is likely to attract an audience or sponsors and make money for his company. Government censors sift out the limited types of speech obscenity, fighting words, threats which are illegal under the First Amendment. But the vast remaining mass of speech, ostensibly free and protected, is in reality controlled by the preconceptions and commercial judgments of the people who stand as gatekeepers to the means of communication.
The Internet is a forum without gatekeepers. Anyone with a computer and a SLIP account can be a publisher. On the Net, you can reach tens of millions of potential readers at low cost and without having to persuade anyone, editor, publisher, reporter, producer, that your stuff deserves the light of day.
This panics the censors. Phrases like "sink of depravity" are being tossed around a lot. If you can't institute your own social controls, we are told if we can't make the Internet and all of cyberspace more sedate, more "decent", more like older, mainstream forms of publishing and communication the government will have to step in and do it for us.
In this atmosphere, the would-be censors have an opening. They are lining up at the courthouse doors to try to chase from cyberspace the forms of speech that irritate them most. Everyone has a bogey-man who "doesn't deserve" First Amendment protection. For postal inspector David Dirmeyer, it was on-line pornographers. Stockbrokerage Stratton Oakmont was upset by postings about its public offerings on Prodigy. Radio personality Howard Stern went after Delphi Internet Services. A grand jury is investigating cryptographer Phil Zimmerman for a real Catch-22--writing software that he should have foreseen someone else would upload to the Internet. The Church of Scientology is unhappy that some of its internal documents wound up in Usenet and on the World Wide Web. The FBI didn't think college student Jake Baker should be posting violent fiction to the alt.sex.stories newsgroup. College student Marty Rimm saw an opportunity to profit from the hype and make himself famous with some "statistics" on on-line pornography.
Marty Rimm was a long-time member of the Thomases' Amateur Action board. His "research" wound up in a cover story in Time Magazine that Senator Exon waved around on the Senate floor. In the wide ranging debate in the Senate, the Thomas and Prodigy cases came up repeatedly. Other legislation has been introduced dealing with the Zimmerman case and with bomb recipes. The varied strands are all beginning to be woven together in Congress; the resulting tapestry will determine the future of the Net. Will it continue to be a wild frontier of ideas, some good, some grotesque, competing for attention? Or will it become an intellectual wasteland like broadcast television, subject to the regulations of the F.C.C.?
In the following chapters, we study several cases of attempted and successful censorship, by government agents and self-appointed citizen censors alike. Along the way, we review the forms censorship takes in cyberspace the seizure of computers, gag orders, damage awards, prison terms, and the FUD (fear, uncertainty and doubt) spread by all of the above. In the final section, we make our own recommendations for sensible solutions that will allow society to exclude the truly illegal forms of speech on the Net, while allowing the Net to remain what it is, and what makes it most valuable, today: a wild medium in which everyone can be publisher, reader, distributor of information without requiring the permission of anyone in authority.
Chapter 1--Memphis Rules