Tags: broadcast, indecency, internet, law, media law, regulation
I hate law. But I put a lot of effort into this position paper for my Electronic Media Law & Regulation class. So here it is.
The advent of the internet allows people to globally “communicate with one another effectively and inexpensively” (Internet, 2007). Being a medium that is growing rapidly as a vast plethora of information, it is inevitable that a government would attempt to regulate its content. In 1996, the United States Congress passed the Communications Decency Act (CDA), which is Section 502(1) of the Telecommunications Act of 1996 in Title V, intending to control pornographic content on the internet (McMurdo, 1997). Section 502(2) criminalizes the use of “interactive computer service” to “send” or “display in a manner available” to a person under age 18, any material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs”. This was the first attempt to regulate the internet by a government.
The American Civil Liberties Union (ACLU) challenged the statutory provision and brought the case to the Supreme Court. In June 26, 2007, the United States Supreme Court ruled the CDA as unconstitutional, stating that its enforcement would violate the First Amendment (Judges Rule, 1996). Due to the fact the terms “indecency” and “patently offensive” was not clearly defined, the CDA is unconstitutionally overbroad and even vague (Lewine, 1996). According to the judges, “the Internet deserved as least as much, protection under the First Amendment as printed material received, if not more” (Lewis, 1996). This was the first major Supreme Court ruling on the regulation of indecent material on the internet in history.
In 1998, six college professors challenged the constitutionality of a Virginia Code that prohibits them, along with other state employees, to “access, download, print or store any information infrastructure files or services having sexually explicit content” ¹. The resulting case in a district court, Urofsky v. Allen , 995 F. Supp. 634 (E.D. Va. 1998), led to a decision that the Act did not deal with the indecent internet content issue in a proper manner.
As for broadcast content, the prohibition of indecent and obscene material originated in the Communications Act of 1934 and subsequently moved to the US Criminal Code (Creech, 2007). The FCC defined indecency to include “sexual or excretory activities and organs” in In the Matter of Enforcement of Prohibitions Against Broadcast Obscenity. However, indecency speech is entitled to First Amendment protection, to a degree which depends on the medium, (Greenhouse, 1996). The attempt to regulate indecency on the internet called for a comparison with the broadcast medium. In the landmark Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) case, the Supreme Court stated that internet “users seldom encounter such (sexually explicit) content accidentally”, unlike radio or television. As a result, the 1997 case has, to a degree, protected and maintained freedom of speech on the internet.
Having used the internet for many purposes, I concur wholeheartedly with the decision the Supreme Court has made in 1997. The internet should not be regulated the same way broadcasters are, not for indecency or anything else. Firstly, the internet is indeed “a marketplace of ideas”, therefore a censorship of any amount would have diminished its very essence, given that it can be enforced. The CDA, with its indecency provisions, would have taken away the freedom of adults to choose for themselves and for children how appropriate the content is to view. WIthout the freedoms internet users have to voice opinions, give comments, make contributions and ultimately have something to say, the intellectual world would not have been the way it is today.
The massive world of information on the internet, in my opinion, deserves First Amendment protection at a higher level than any media, due to its reciprocal nature between its users. With present technology, there is almost no way of ‘filtering’ obscenities and indecent material that could appear in newspapers, radio or television. It is without doubt that some kind of regulation on those media would have been justified in order to at least protect the children. But the Internet is not as pervasive as broadcast media (Lewine, 1996), considering the steps taken in to access the desired content. As ruled in the ACLU v. Reno case, “an Internet user must act affirmatively and deliberately to retrieve specific information online.”² Hence, a total ban on indecent communications on the internet that the CDA proposed to impose, which is punishable by criminal penalties, is clearly unjustified (Bilstad, 1996). Not only that, the total ban would render the entire internet into something that is merely apt for minors (Lewine, 1996). Nonetheless, a parent should know enough to be concerned of indecent or obscene material that can potentially be exposed to young children who freely access the internet.
Internet indecency aside, there is enough controversy and trouble in regards to regulating indecent content on television as it is. In general, the Federal Communications Commission (FCC) decides the ‘qualification’ of indecent broadcast content on a case-by-case basis (Gattuso, 2005). However, there are those who consider the FCC’s indecency standards as too arbitrary; an example would be none other than the ACLU (Broadcast Indecency, 2004). The FCC has long faced scrutiny and criticism in its regulatory process on what it deemed ‘indecent’ which even includes ‘fleeting expletives’, a ruling that is unfounded (O’Neil, 2008). The FCC’s revised definition of indecency, as ruled by the Court of Appeals for the Second Circuit, has “failed to provide the clarity required by the Constitution”³. There are even talks of the Supreme Court reviewing broadcast indecency policies, after all the controversy stirred by the profanity on the 2003 Golden Globes and Janet Jackson’s ‘wardrobe malfuction’ during the 2004 Super Bowl (Savage & Puzzanghera, 2008). Recently, the Government Accountability Office criticized the complaint-handling skills of the FCC (Eggerton, 2008), which can be a detriment to its regulatory authority when they could not even properly organize such data. I believe that it would be tremendously more difficult to regulate speech on the internet, not only because there are far too many voices and content contributors, but also because many of them can conceal their identities. Even if there can somehow be an effective means of content control over the entire internet, I believe its best if the government resolves broadcast regulation, namely indecency standards, completely before tackling the much larger and more complex medium.
If the intended goal is to keep pornography and other indecency away from underaged Internet users, there is no perfect solution in sight; not even internet filters can yield the best results by themselves (Schwartz, 2004). Given the means, children will likely to find access to some sort of indecent material if they really wanted to, being generally more tech-savvy than their parents. The best thing that can be done for now is to help the parenting of children to ensure that harmful exposure to violent or sexual content is kept at bay. It is ultimately the parents’ responsibility to ensure the well-being of their children; the government should not resort to media censorship.
In conclusion, we must identify and address the very root of the problem we as a society seeks to resolve, not just the surface. Instead of banning driving alone, the government should raise fuel efficiency standards to control gas prices. Short-term solutions are often impractical and wasteful, while hurried and vague laws would not yield satisfactory results either. Its high time the authorities stop trying to take on the role of the parent, but be the trusted representative of the people they are meant to be.
 Va. Code §2.1-805
 ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *94 (E.D. Pa decided June 11, 1996) (Sloviter, C.J.).
 Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 467 (2nd Cir. 2007).
ACLU, et al. v. Janet Reno, Nos. 96-963, 96-1458, 1996 U.S. Dist. LEXIS 7919, *198 (E.D. Pa decided June 11, 1996) (Dalzell, J., concurring).
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
In the Matter of Enforcement of Prohibitions Against Broadcast Obscenity, 18 U.S.C. 1464, Order FCC 88-416 (Dec. 19 1988), 53(249) FR. 52425 (Dec. 28 1988).
Urofsky v. Allen, 1998 U.S. Dist. LEXIS 2139 (E.D. Va. Feb. 26, 1998)
“Internet,” Microsoft® Encarta® Online Encyclopedia 2007
http://encarta.msn.com © 1997-2007 Microsoft Corporation. All Rights Reserved.
Bilstad, Blake T. (1996) Obscenity and Indecency on the Usenet: The Legal And Political Future of Alt.Sex.Stories. Journal of Computer-Mediated Communication 2 (2) , 0–0 doi:10.1111/j.1083-6101.1996.tb00060.x
Creech, K. (2007). Electronic Media Law and Regulation, Fifth Edition. Amsterdam: Focal Press.
Eggerton, J. (2008, April 13). GAO Report Criticizes FCC Complaint Enforcement. Broadcasting & Cable. Retrieved April 30, 2008, from http://www.broadcastingcable.com/article/CA6540544.html
Gattuso, James L. (February 15, 2005) Broadcast Indecency: More Regulation Not the Answer. The Heritage Foundation. Retrieved April 29, 2008 from http://www.heritage.org/Research/Regulation/Wm666.cfm
Greenhouse, L. (1996, December 7). Statute on Internet Indecency Draws High Court’s Review. The New York Times. Retrieved April 25, 2008, from http://query.nytimes.com/gst/fullpage.html?res=9B04E3DB153FF934A35751C1A960958260&sec=&spon=&pagewanted=1
Lewine, Alan. (1996) Making Cyberspace Safe For Children(?): A First Amendment Analysis of The Communications Decency Act of 1996. Piper Marbury Rudnick & Wolfe LLP. Available at SSRN: http://ssrn.com/abstract=44451
Lewis, P. (1996, June 13). Judges Turn Back Law to Regulate Internet Decency. The New York Times. Retrieved April 25, 2008, from http://query.nytimes.com/gst/fullpage.html?res=940CE2DA1739F930A25755C0A960958260&scp=4&sq=congress+decency+act&st=nyt
Mcmurdo, G. (1997). Cyberporn and communication decency. Journal of Information Science, 23(1), 81-90. Retrieved April 25, 2008, from http://jis.sagepub.com/cgi/content/abstract/23/1/81
Judges rule against Internet indecency law. (1996, June 12). CNN. Retrieved April 25, 2008, from http://www.cnn.com/US/9606/12/internet.indecency/
The Associated Press (March 23, 2004) A Closer Look at Broadcast Indecency. First Amendment Center. Retrieved April 29, 2008 from http://www.firstamendmentcenter.org/analysis.aspx?id=12915
O’ Neil, R. (2008). Indecency, the First Amendment, and the FCC. Federal Communications Law Journal, 60, 12. Retrieved April 30, 2008, from http://www.law.indiana.edu/fclj/pubs/v60/no1/O’Neil_Forum_Final.pdf.
Savage, D., & Puzzanghera, J. (2008, Mar. 2). Supreme Court may rethink broadcast indecency. Los Angeles Times. Retrieved April 25, 2008, from http://www.latimes.com/news/nationworld/nation/la-na-expletive2mar02,0,7115069.story
Schwartz, J. (2004, July 4). Ideas & Trends: Sex and the Supreme Court; Internet Filters Are: [Good] [Bad] [Both]. The New York Times. Retrieved May 2, 2008, from http://query.nytimes.com/gst/fullpage.html?res=9D00E7DE1F38F937A35754C0A9629C8B63&sec=&spon=&pagewanted=all