Protecting the Worldwide Conversation:
CDA Decision is a Sweet Victory

Part II

by Jonathan Wallace

Laying the Ghost of Pacifica

In 1978, the Supreme Court issued the F.C.C. v. Pacifica ruling, holding that George Carlin's "Seven Dirty Words" routine was indecent when broadcast on public radio in mid-afternoon. Ignoring a long string of cases from N.B.C. v. U.S. (1943) to Red Lion Broadcasting v. FCC (1969) which had clearly established scarcity of the electromagnetic spectrum as the sole underpinning of government content regulation of broadcast, the Court referred to "the uniquely pervasive presence" of broadcasting as a rationale for regulation. "This aberrant approach," said communications scholar Ithiel de Sola Pool in 1983, "could be used to justify quite radical censorship."

This is the year that what Pool feared happened. The CDA, with its wholesale adaption of broadcast language, was, by its supporter's admission, an attempt to extend the Pacifica holding to cyberspace. Since there is no scarcity of bandwidth on the Internet--you don't need the government's permission to attach a server to it, the way you need to obtain a license to start a radio station-- the pro-CDA forces relied on an argument that the Net is "pervasive", comes into your home unbidden, and can assault your children with pornography. A porn shop in your child's bedroom, as Senator Dan Coats said.

"Pervasiveness" is actually an empty phrase, even applied to broadcast. You choose to have a television in your house and to allow your child to watch it. The fact that broadcast waves pass through your house whether you want them to or not is a distinction without a difference, if you do not choose to have the hardware necessary to interpret them. On the other hand, if TV is "pervasive", it is hard to see why the Bible would not be. There is a copy in almost every American house and a child idly flipping pages might easily happen upon scenes of fornication, rape, and incest.

No-one really knows if the Pacifica court--or rather, the one judge who wrote the pervasiveness language--intended to divorce broadcast content regulation from scarcity and found it solely on pervasiveness. Perhaps it was just careless drafting. In the eighteen years since Pacifica, the religious right and political conservatives have made numerous attempts to extend the Pacifica rationale to other media, including cable, telephone porn, even the U.S. mails.

"Time has not been kind to the Pacifica decision," Judge Dalzell wrote. "Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against over-reading the rationale of its holding." (p. 184). Happily, he did not stop there, but went on to plug the hole in First Amendment law that has existed since the Pacifica court first uttered the word "pervasiveness": what does the phrase really mean and what is its applicability to other media? Dalzell's answer, which he reaches by a cleverly reasoned pathway, is that "pervasiveness" has no meaning outside the broadcast context. He gets there by way of a 1994 Supreme Court case, Turner v. FCC. An unusual case with a lot of philosophy and no holding, in Turner the Supreme Court considered the "must carry" rule under which cable providers are required to provide broadcast channels to their users. The Court remanded the issue to the Court of Appeals for further consideration, after stating that cable is not like broadcast because it "does not suffer from the inherent limitation that characterizes the broadcast medium," namely scarcity.

Dalzell's brilliant insight is based on the fact that cable and broadcast are equally pervasive. If a child turns on a TV set and is surprised by a porn film, it is not really relevant whether the image entered the house via broadcast waves or a cable. While the pro-CDA forces would use this argument to support the proposition that cable (and much else) should be regulated, Dalzell reaches the opposite conclusion. If the Supreme Court declined to apply full broadcast-style regulation to cable, he says, it is because "pervasiveness" is not an independent basis for regulation, if there is no spectrum scarcity.

Even if you accept pervasiveness as a separate ground for government interference in content, Dalzell is careful to point out that the Net is not pervasive under any definition:

Was Socially Valuable Speech Ever in Danger?

When I first read and understood the language of the CDA, I felt very frightened for my own speech on the Internet. The CDA criminalized speech depicting or describing sexual or excretory acts or organs, which in context was patently offensive under contemporary community standards. Following Pacifica, the speech could be found indecent even if it had significant social value. Among others, the obscenity case U.S. v. Thomas had established that what is acceptable in New York or California may be patently offensive in Memphis. Worse, U.S. v. Thomas had held that the defendants violated Tennessee standards simply by making their material available on a bulletin board elsewhere in the country. The language of the CDA, and statements of its proponents, made clear that I might be held to violate local standards somewhere simply by posting material on the global Internet that might be accessed by someone in a disapproving jurisdiction.

Since January 1995, I have published The Ethical Spectacle every month--and I could immediately think of two issues that might be considered indecent by someone somewhere: one on pornography, in which I described the contents of some pornographic photos and videos, including the pictures for which the Thomases were convicted; and one on the Holocaust, where I had reprinted survivor's testimony about human medical experiments involving sterilization and castration. I responded to Ann Beeson's request for plaintiffs for the upcoming case--in retrospect, I practically hounded the ACLU to include me--and was gratified when the ACLU determined I had standing to sue and invited me to join the case.

However, in the months since then, I have had many conversations with otherwise intelligent and reasonable people who were shocked that I felt threatened by the CDA. "The CDA is aimed at smut," goes a typical argument. "Its proponents are constantly talking about porn and smut. What makes you think anyone would ever prosecute you for posting Holocaust testimony on the Internet?"

The answer is, that this is the plain meaning of the CDA. It doesn't refer to porn; it bars the depiction or description of sexual or excretory acts or organs in a patently offensive manner. The material I posted describes sexual organs and acts; whether or not it is patently offensive to someone, somewhere, who can say? Everything is patently offensive to someone; for each of us, there is some speech we really hate. The argument that no-one would ever prosecute me for intellectual, socially useful discussions of pornography or the Holocaust really boils down to a statement that prosecutors would have too much integrity or common sense ever to try such a thing.

But we know they really don't. Some are fanatical, and some are ambitious, and there is a prosecutor somewhere who will prosecute you for anything that he thinks the law will allow.

Moreover, we know (despite what they say on TV or in briefs filed with the Court) that the CDA proponents clearly intended to reach socially valuable material. One of the Senators commented the day the CDA passed that portions of Catcher in the Rye, posted on the Net, should be considered indecent. The conference committee considered, and rejected, an exemption proposed by Congressman Rick White for material with scientific, literary, artistic or political value.

The Justice Department, faced with the thankless task of trying to save a statute that was clearly overbroad, argued prosecutorial discretion to the Court: using what one of the judges correctly characterized as a "circular argument", DOJ said that the CDA should be held constitutional because the U.S. attorneys would not seek to apply it in an unconstitutional fashion.

The panel didn't buy it. Said Chief Judge Sloviter:

Did the CDA Apply Local Community Standards?

The CDA barred explicit material that was patently offensive under "contemporary community standards." In so doing, it staked out a position halfway between obscenity law, which clearly applies local community standards, and the broadcast laws it was otherwise emulating, which refer to contemporary community standards for the "broadcast medium." Had the CDA referred to such standards for the "online" or "Internet medium", it would have been clear that a national standard was meant, as with broadcast. Because there was no such reference, many commentators, including me, simply assumed that the CDA was meant to apply local standards, as with obscenity laws. Some well-respected people took a public position that the CDA clearly referred to a national standard. While this might have been a good fallback position for us in the event that the CDA was held constitutional, I had serious doubt whether it was what the CDA proponents really intended.

The ACLU v. Reno court did not have to reach this issue to hold the CDA unconstitutional. But Judge Buckwalter took a look at community standards in passing. He pointed out that the Conference Report for the CDA states that it is "intended to establish a uniform national standard of content regulation." However, since indecency begins where obscenity leaves off, and obscenity is defined by shifting local standards, Buckwalter implies that the task may be impossible. '[W]hat constitutes indecency must be as open to fluctuation as the obscenity standard and cannot be rigidly constructed as a single national standard if it is meant to function as the Government has suggested." (p. 140) These shifting sands mean that Internet users, uncertain as to the applicable standards, will steer wide of the unlawful zone, censoring themselves even beyond what is necessary. "The chilling effect on the Internet users' exercise of free speech is obvious." (p. 141)

In the end, the question of a national vs. a local standard may be more semantical than practical. Juries apply their own standards, whether they dress them up as "national" or "local." In fact, there is really no precedent in free speech law for a jury struggling to apply the standards of any community other than its own. By contrast, the national standards applied in broadcast laws are decided by administrative officials comfortable with such determinations (and result in sanctions or fines, not jail time.)

[Part I reviewed ACLU v. Reno's rulings on the controlling metaphor for the Internet; the correct constitutional test; the question of whether there will be more attempted regulation by Congress of Internet content; whether the government has a "compelling interest" in protecting children from Internet content; and whether the CDA was vague or overbroad.]

[Part III will examine the court's review of the CDA's statutory defenses; the meaning of the words "in context"; and the role of parental responsibility.]

Jonathan Wallace

The Ethical Spectacle
ACLU v. Reno plaintiff
Co-author, Sex, Laws and Cyberspace (Henry Holt, 1996)

Free speech absolutist--and proud to be