Internet Censorship is Absurd and Unconstitutional by Michael Landier

Introduction | The Essay | Sources | Criticism | Related Sites

Should it be illegal to publish literature with "indecent" content on the Internet but perfectly legal to publish that same work in print? This question has spawned the debate over Internet censorship, which is currently raging in the United States Congress as well as in other political forums around the world. The question as to whether the Internet should be censored will continue to be debated for many years to come. As with any political topic, the debate over Internet censorship has its extremes. Many proponents of Internet censorship want strict control over this new information medium. Proponents of Internet censorship such as Senator Jim Exon (D-NE), co-author of the Communications Decency Act (CDA), are in favor of putting strict laws into place regulating the Internet in order to protect children: "The Decency Act stands for the premise that it is wrong to provide pornography to children on computers just as it is wrong to do it on a street corner or anywhere else" (Exon). These proponents suggest creating laws for the Internet similar to those now in place for television and radio. Those strongly opposing Internet regulations, such as the Citizens Internet Empowerment Coalition (CIEC), assert that the Internet is not like a television and should not be regulated like one. Both sides base their respective arguments on how they view the new information medium. Though the laws that Congress are proposing to regulate the Internet are well intentioned, I strongly believe that the Internet should not be censored because any law encroaching on the people’s right to free speech is a obvious breach of First Amendment rights and because laws limiting Internet speech are too broad and unenforceable on this global medium.

To understand why legislators are attempting to censor the Internet despite the fact that it is absurd and Unconstitutional, one must first understand how the Internet came to be and how it conceptually works. According to Internet historian Dave Kristula, the first inklings of the Internet began in the United States in 1969 as a network of four servers called the APRANET. ARPA (the Advanced Research Projects Agency), a division of the Department of Defense, created the ARPANET for military research so that the information on the network would be decentralized and could survive a nuclear strike. The network continued to grow in size and speed as technology increased over the next two decades. Standards began to set in such as the TCP/IP protocol for network transmission of data. By 1990 the HyperText Transfer Protocol (HTTP) had been created to standardize the way in which Internet documents are sent and received (Kristula).

By 1994, the APRANET was disbanded, and the Internet became a public network connecting more than 3,000,000 computers together worldwide. Commercial organizations began to offer services over the Internet such as online ordering of pizzas (Kristula). At present, millions of companies are now online offering products and services such as software, hardware, books, games and adult oriented photographs. Though estimates vary, the consensus is that the amount of providers and users of the Internet has nearly doubled each year since 1987 (Kristula). Since the Internet grew into the public eye so fast, many people were caught off guard and concerns began to mount.

The unregulated flow of information that the Internet provides created concerns with parents and politicians beginning in the early and middle 1990’s. Adult oriented web sites such as the Playboy web site prompted organizations such as Enough is Enough, a non-profit, non-partisan women’s organization, to lobby Congress for legislation protecting their children from adult oriented content. Bills such as The Protection of Children from Computer Pornography Act of 1995 (PCCPA) began to appear before the House and Senate. In her testimony before the Senate, Dee Jepsen, Executive Director of Enough Is Enough, explained why her organization feels that pornography should be censored on the Internet through the PCCPA:

…women speak with a special authority on the issue of pornography—for we, and our children are its primary subjects…and its primary victims. Pornography demeans and degrades women, victimizes children and ruins men. It contributes to domestic and spouse abuse, rape, incest and child molestation. And a great share of it is not protected speech, any more than libel, slander or false advertising are protected speech; therefore, it is not a 1st Amendment issue. It is not legal material. Many Americans do not realize this fact. (Jepsen)

It should be noted that Jepsen’s intentions are much broader than just censorship of pornography on the Internet. She wants to see pornography censored on a much broader spectrum, including traditional print. Jepsen and her organization are attempting to use the Internet as their model for pornographic censorship.

Though the PCCPA was not realized itself, the organization was successful in lobbying for another similar bill co-authored by Senator Exon named the Communications Decency Act of 1996 which passed as part of the Telecommunications Act of 1996 (Telcom Act) and was signed into law by President Bill Clinton. The CDA allows the government to regulate and censor speech on the Internet as explained by James Plummer, writer for the Consumers’ Research Magazine:

The CDA penalizes not only people who transmit or "make available" "indecent" and/or "patently offensive" material to minors, but also those who "knowingly permit any telecommunications facility under [his] control to be used for any activity prohibited." What does this mean? In effect, it means that your Internet Service Provider (ISP) is legally liable for anything you email, post to a newsgroup, or put on a web page. (Plummer 33)

The passage of the CDA inspired new organizations such as the Electronic Frontier Foundation (EFF) and the Citizens Internet Empowerment Coalition (CIEC) to form in order to protect free speech and commerce on the Internet. The CIEC challenged the CDA on the grounds that "the Internet is a unique communications medium, different from traditional broadcast mass media, which deserves broad First Amendment protections" ("The Internet Is Not A Television"). In conjunction with the ACLU and a breadth of companies representing the computer industry such as Microsoft and America Online, the CIEC challenged the CDA in federal court on the basis that it violates First Amendment rights and is unenforceable:

By imposing broadcast-style content regulations on the open, decentralized Internet, the CDA severely restricts the first amendment rights of all Americans and threatens the very existence of the Internet itself. Although well intentioned, the CDA can never be effective at controlling content on a global medium, where a web site in Sweden is as close as a site in Boston. The CIEC case is based on the argument that the only effective and constitutional way to control children’s access to objectionable material on the Internet is to rely on user control. ("The Internet Is Not A Television")

As defendants in the CDA case, the Justice Department argued that the CDA is necessary because "The Internet threatens to give every child a free pass into the equivalent of every adult bookstore and every adult video store in the country" (Mattos). Other proponents of the CDA such as President Clinton believe the bill is Constitutional: "I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this Act to prevent children from being exposed to objectionable material transmitted through computer networks" (Clinton). The three judge panel that heard the CDA case unanimously disagreed. In a 175 page decision, the federal judges of the U.S. District Court for the Eastern District of Pennsylvania found the CDA Unconstitutional on the basis that it violates the First Amendment right to free speech and the Fifth Amendment right to due process. In the written decision, Judge Ronald L. Buckwalter asserts that:

It is, of course, correct that statutes that attempt to regulate the content of speech presumptively violate the First Amendment…That is as it should be. The prohibition against Government's regulation of speech cannot be set forth any clearer than in the language of the First Amendment. ("American Civil Liberties Union et al v. Janet Reno")

Concurring with Judge Buckwalter that the CDA is Unconstitutional, Judge Stewart Dalzell wrote:

…the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. ("American Civil Liberties Union et al v. Janet Reno")

In response to the decision, the Justice Department immediately appealed the decision to the Supreme Court where arguments were heard in March of 1997.

The cause of the confusion over whether the Internet should be censored was fully demonstrated in the Supreme Court hearing on the CDA. The confusion is caused by a general ignorance of what the Internet actually is. This general ignorance regarding the Internet was noted by Time reporter Jenifer Mattos in her article on the CDA Supreme Court hearing in which the nine justices were constantly searching for a real-world analogy that they could use to justify their decision. For example, Justice Sandra Day O’Connor attempted to quantify the Internet with a real-world analogy by calling it a public arena "much like a street corner or a park." (Mattos). Justice Stephen Breyer asserted that the Internet "is very much like a telephone" and that the CDA could "make large numbers of high school students across the country guilty of federal crimes" for having online conversations about their sexual experiences (Mattos). Though these analogies are roughly accurate, the Justices are going about quantifying the Internet in the wrong way.

The Internet is unlike any information medium in history. Though there are many similarities between the Internet and other means of communications, the free flow of information that the Internet provides makes it a completely unprecedented information medium. Unlike television and radio, the Internet affords users the capacity to access a breadth of information beyond just a channel-changer with only a limited number of stations. The capacity of the Internet is only limited by those who use it. Unlike traditional print media like the newspaper, the Internet is relatively cheap and widely accessible with no red tape. With a computer, network connection, and the proper software, anybody can become a web publisher. There is virtually no limit to how much content can be published on the Internet, whereas newspapers are limited by physical costs such as the cost of paper. The Internet is truly an unprecedented information medium and should be treated like one.

It is apparent with the passage of the CDA that many legislators do not realize that laws which already exist also apply to the Internet. For instance, child pornography laws that exist on the federal, state and local levels also apply to the Internet. One such example occurred when America Online user John Delmarle was sentenced to three years’ probation and six months of home confinement for distributing "sadistic conduct" of young children through the Internet (Whitmer). In a similar case, Bently Ives, president of Webb World was arrested and charged with possession of child pornography. Ives was charged under the following state law:

Under Texas law, it is a felony to knowingly possess pornographic pictures, videos, slides, or negatives featuring minors. It is also a misdemeanor to promote or possess "obscene" material, which is defined as "patently offensive sexual acts, normal or perverted, actual, or simulated." (Macavinta)

These examples show that creating a new set of laws for the Internet are unnecessary because federal, state and local laws already apply to users of the Internet if they are in the jurisdiction of said laws.

Creating new laws to censor the Internet, like the CDA, are a vain attempt to enforce laws that would not be acceptable on a global level. The CDA attempts to regulate the entire Internet. Enforcing United States laws in foreign countries would be absurd because the United States does not have jurisdiction in foreign countries. It would be ridiculous to assume that those living in foreign countries would live under United States laws and vise versa. For instance, it is perfectly legal to sell marijuana in Holland under the proper conditions but it is illegal to do so in the United States. It would be considered absurd if the United States Congress were to approve a law restricting marijuana use around the globe because other nations are outside of the jurisdiction of the United States and therefore the United States cannot enforce laws in foreign countries. If the United States attempted to enforce this anti-marijuana law in Holland it would create an international incident. The government of the United States cannot rightfully, or practically, enforce any law that would affect the entire world.

The decision as to whether the United States government will have the right to censor content on the Internet will be decided by those who have little experience with it. Jenifer Mattos concluded her article on the CDA Supreme Court hearing by asserting that "Although most of [the justices] have never explored the Web, its future depends on their choice" (Mattos). Mattos’ conclusion is sobering in that the people who are to decide the fate of the Internet do not fully understand it.

As an avid Internet user, publisher, and Information & Computer Science undergraduate, I propose the following course of action be taken. The U.S. government should treat U.S. citizen Internet publishers the same as print publishers. Since the First Amendment was ratified in the 18th century, the federal government has recognized the freedom of the press:

Restrictions on Powers of Congress…Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances. (The Constitution of the United States of America)

U.S. citizens who are Internet publishers should be recognized as publishers with the guaranteed right to freedom of the press under the First Amendment, just as newspaper and magazine publishers. Any law enacted to censor speech on the Internet is just as Unconstitutional as a law censoring newspaper and magazine publishers.

Some feel that the right to freedom of the press should be limited on the Internet such as CDA proponents Senator Jim Exon and mothers against pornography groups such as Enough is Enough. The intentions of the CDA proponents are to keep "indecent" material away from children. Enacting laws restricting Internet speech is not the proper way to solve their problem because it violates fundamental Constitutional rights and cannot be enforced within the boundaries of foreign countries.

I recommend that the U.S. government condone self-regulation of the Internet with the use of user backed software and voluntary rating systems instead of governmental censorship as a viable solution for keeping children away from indecent material on the Internet. Software systems which allow parental control of Internet material are already widely available on the Internet. An example of one of the many parental control software systems is aptly named Net Nanny. Net Nanny’s software system allows parents to "monitor, screen and block access to anything residing on, or running in, out or through your PC, online or off" (Net Nanny Software International). There are many other parental control software systems that are similar to Net Nanny including CYBERsitter from Solid Oak Software, SurfWatch from Spyglass, Inc. and Cyber Patrol from Microsystems Software.

Many users in the computer industry have already accepted these software programs as a viable solution to keeping their children away for "indecent" material. Robert Sirico of Forbes is among the many proponents for Internet self-regulation. In an article entitled "Don’t Censor the Internet," Sirico recommends the use of parental control software over Internet censorship:

If you want to see pornography banished, you must recognize that federal government censorship is not going to accomplish that goal…So what can parents do to keep pornography out of their homes? The market has already provided solutions. Internet users can subscribe to growing numbers of "parental control" programs. These filter out offensive materials by screening key words or simply limiting kids to a "white list" of approved sites. It's as easy as downloading a file and nearly impossible to outwit. (Sirico 48)

Sirico concludes his article by asserting that parents, not the government, need to take control of the situation and protect the innocence of their children through parentally controlled software devices. Though parentally controlled software is not perfect in that it relies on human intervention, it is a much better solution than governmental censorship in that it is perfectly legal, it does not alienate fundamental rights under the First Amendment, it allows Internet users to keep their right to freedom of expression and it does not impose limits on those outside of the jurisdiction of United States law.

Another viable solution to the problem of children viewing objectionable material on the Internet is the use of a voluntary rating system. Such ratings systems are already in use and include the Recreational Software Advisory Council on the Internet rating system name RSACi. The RSACi is a completely voluntary rating system which allows web publishers to have their site rated by the Recreational Software Advisory Council. The ratings measure the web site’s content levels of sex, nudity, language and violence (Recreational Software Advisory Council Web Site). RSACi is being used in conjunction with Microsoft’s popular web browser, Internet Explorer, to allow parents to decide what rating is appropriate for their child. The parents needs only to follow a few simple steps in which they enter a security password and decide what ratings are appropriate for their child. After the rating system is enabled, the child user will be unable to browse web sites that have ratings above the standards set by the parents without knowledge of the password. President Clinton, although steadfastly holding to the belief that censorship laws are necessary for the Internet, condones self-regulation of the Internet through the use of voluntary rating systems:

(The Clinton Administration) vigorously support(s) the development and widespread availability of products that allow both parents and schools to block objectionable materials from reaching computers that children use. And we also support the industry's accelerating efforts to rate Internet sites so that they are compatible with these blocking techniques. (Clinton)

President Clinton’s support of voluntary Internet regulation shows that their is an alternative to government controlled regulation of the Internet. The government should condone Internet self-regulation through voluntary rating systems and parental control software instead of attempting to pass legislation censoring the Internet such as the CDA, which does nothing more than encroach on the fundamental right to free speech.

I also recommend that Internet Service Providers (ISPs) be treated as carriers of data and not publishers of the data. ISPs are similar to telephone companies in that they allow the transport of data. Telephone companies are considered carriers and not publishers because they are not expected too, and furthermore, not allowed to regulate the content of private communications between individuals. ISPs should be treated in the same ways. Microsoft CEO and computer industry expert Bill Gates in his book on the future of the Internet, The Road Ahead, asserts that the idea of having Internet Service Providers act as censors would be absurd:

Some critics have suggested that communications companies be made gatekeepers, charged with filtering the content of what they carry. This idea would put companies in the business of censoring all communication. It’s entirely unworkable, for one thing because the volume of communicated information is way too large. This idea is no more feasible or desirable than asking a telephone company to monitor and accept legal responsibility for everything that’s spoken or transmitted on its telephone wires. (Gates 310)

Indeed, it would be absurd to ask a telephone company to be legally responsible for their clients content, just as it is absurd to ask an ISP to be legally liable for their clients content.

Approving any law which condones Internet censorship would be absurd and Unconstitutional because it could not be enforced in foreign countries and would violate the First Amendment right to freedom of the press. The most viable solution to the problems addressed in the CDA is Internet self-regulation through parental control devices and voluntary rating systems because it is the only Constitutional and practical solution. Web publishers should be afforded the same rights to traditional print publishers and Internet Service Providers should be treated as information carriers and not publishers. The Internet is an unprecedented medium of information exchange which will revolutionize the way in which people work, play, and socialize. Censoring the Internet would be a terrible disservice to current and future generations of Internet.

© 1997, Michael Landier. All rights reserved.
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