The Ethical Spectacle, July 1995,

The Communications Decency Act

The Communications Decency Act, recently passed by the Senate (and condemned by Speaker Gingrich) was a blatant act of political grandstanding by people who do not understand the Internet and who do not care.

No new laws are needed to govern pornography on the Internet. (New clarification of jurisdictional rules and the applicability of local standards may be.) The same material that is obscene in print is obscene in a GIF file; no more and no less.

Suppose that, when cars were invented, laws already existed forbidding the interstate transportation of pornography by any conveyance (they probably did.) The introduction of automobiles would not have required any new laws pertaining to pornography, even though there was a new kind of conveyance to carry them.

Now suppose that Congress chose to pass such a law, including in it a substantive standard completely inconsistent with prior law, so that materials which could be legally transported by horse or railroad were illegal if carried by car. This is exactly what the Communications Decency Act will do, with its loose inclusion of "indecent" materials in its prohibited list. If I exclaim "fuck this shit" on my Web pages, am I being indecent? Whose standards do we apply? One commentator noted that the racier passages from Mr. Gingrich's forthcoming novel 1945 will probably be prohibited on the Net under the Communications Decency Act.

One justification used by the Act's supporters is that it purports only to extend to cyberspace the special restrictions applied to broadcast media. This is a false road. Courts long ago approved the idea that ordinary First Amendment protections may be bypassed for broadcast media where, due to limited bandwidth, the government has a more legitimate role in monitoring speech which is somehow associated with its role in allocating bandwidth. The Internet is a totally different kind of animal more analogous to print media; bandwidth is limited only by the number and power of the computers attached, much like a proliferation of printing presses using up newsprint accross the land.

Speaker Gingrich's declaration this week that the Communications Decency Act was overkill is a promising sign that it will not clear the House. It should not.