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BACKGROUNDER: Broadcast v. The Internet
``` [This is just the sort of thing that online activists should do more of: getting facts out to supporters. For example, I'll be speaking on a panel about Internet regulation in San Diego soon, and one of the other panelists will be a staffer for CDA supporter Rep. Brian Bilbray (R-CA). My remarks will mostly be on a higher level, articulating the value of the Internet to a democratic society, but if the CDA comes up then I will certainly need to have reviewed the facts beforehand. I like to think that many other people are in similar situations: getting ready to defend freedom and needing the ammo to do it. Setting up a panel discussion on Internet issues in your community is a great idea. It's easy, it turns out an audience, it gives you practice working the media, and it helps defenders of freedom to get themselves networked and ready for the hard road ahead.]
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Date: Mon, 19 Feb 1996 13:06:02 -0800 (PST) From: telstar@wired.com (--Todd Lappin-->) To: telstar@wired.com Subject: BACKGROUNDER: Broadcast v. The Internet
There are many things that aren't right about the Communications Decency Act (CDA) -- but one major gripe is that the legislation applies an indecency standard that was originally created for broadcast radio and television to the Internet.
How the "indcency" standard came into existence is a long story, but it basically traces back to the Radio Act of 1927. In the 1978 case of FCC v. Pacifica, the Supreme Court upheld the constitutionality of the "indecency" restrictions in a VERY NARROWLY worded decision that that was meant to apply ONLY to broadcast radio and TV. The Pacifica decision was very explicit about the characteristics of the broadcast media which make it subject to a different (and lesser) standard of First Amendment protection than other media.
Why did the court uphold the "indecency" standard as it applies to exclusively broadcasting? Here's what the court said in "Pacifica.":
"Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children."
Students of the Fist Amendment refer to this as the "pervasiveness" argument.
To bring all this down to earth: the Court was concerned that Mom and Dad might leave Junior in a room with the radio or TV blaring. In such a situation, given the pervasiveness and inherent passivity of brodacast media, Junior could be inadvertantly exposed to indecent programming. That would seem a violation of earlier Supreme Court precedents which assert that the State has a "compelling interest" -- above and beyond the First Amendment -- in shielding minors from inappropriate media content.
In effect, Congress and President Clinton ignored the logic of the "pervasiveness" argument by extending the indecency standard to the Internet, wholesale. In so doing, they also ignored the "unique characteristics" of the Net which make it an entirely different beast from TV or radio. The assumption seems to have been that if the medium conveys messages through a cathode ray tube, then it must be like TV, and should be regulated as such.
Of course, treating the Internet like TV is absurd.
It's also insulting.
But unfortunately, this insult from Washington comes backed by $250,000 fines and two-year prison terms.
Grrrrrrr.
Anyone who's ever spent time online understands that the Internet (and/or services such as AOL, CompuServe, etc.) are not passive media. They are "active" in the sense that a user must actively go get the content they wish to view. In addition, currently-available filtering software allows parents and teachers to screen out indecent Internet content.
This question of "Why the Internet is NOT like broadcast" is one of the issues that lawyers representing the Internet community will address while challenging the constitutionality of CDA in court.
(For a quick summary of legal precedent on this issue, I've attached some text from the Federal case of Action for Children's Television et al. v. FCC. I'll say more about this case -- and why it's important -- tomorrow. But for now, this is a very concise and clear articulation of the judiciary's argument that different media are entitled to different standards of First Amendment protection)
Spread the word!
--Todd Lappin--> Section Editor WIRED Magazine
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EXCERPT FROM: Action for Children's Television et al. v. FCC
(A case decided by the US Court of Appeals for the District of Columbia Circuit on June 30, 1995)
It is common ground that "sexual expression which is indecent but not obsceneis protected by the First Amendment." The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.
Thus, a restriction on indecent speech will survive First Amendment scrutiny if the "Government's ends are compelling [and its] means [are] carefully tailored to achieve those ends."
The Supreme Court has "long recognized that each medium of expression presents special First Amendment problems.... Of all forms of communication, it is broadcasting that has received the most limited First Amendment protection." The Court has identified two reasons for this distinction that are relevant here:
First, the broadcast media have established a uniquely pervasive presence in thelives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. ... Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. ...
Second, broadcasting is uniquely accessible to children.... Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material availableto children. ... The ease with which children may obtain access to broadcast material, coupled with the concerns [over the well-being of youths], amply justifies special treatment of indecent broadcasting.
As Justice Powell observed in Pacifica,
the difficulty is that ... a physical separation of the audience [such as that possible in bookstores and movie theaters] cannot be accomplished in the broadcast media. ... This ... is one of the distinctions between the broadcast and other media ... [that] justifies a different treatment of the broadcast media for First Amendment purposes.
Despite the increasing availability of other means of receiving television, such as cable (which is not immune to the concerns we address today), there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment.
Unlike cable subscribers, who are offered such options as "pay-per-view" channels, broadcast audiences have no choice but to "subscribe" to the entire output of traditional broadcasters. Thus they are confronted without warning with offensive material. This is "manifestly different from a situation" where a recipient "seeks and is willing to pay for the communication...."
In light of these differences, radio and television broadcasts may properly be subject to different -- and often more restrictive -- regulation than is permissible for other media under the First Amendment.
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