A Commentary by Robert Corn-Revere, a partner at the Washington law firm Hogan & Hartson and teacher of First Amendment law at Catholic University of America School of Law

The right-wing Jamaat Islamic group recently advocated extraditing Madonna and Michael Jackson to Pakistan to stand trial for "spreading obscenity."

Such a thing, we are told, could never happen here. But in late 1994, a grand jury in Stephens County, Ga., recommended banning the dissemination of "any pornographic, adult and sexually oriented materials" within its jurisdiction. The grand jury further voted for a standing order to authorize the local sheriff to conduct random inspections and investigations. The target? The grand jury's statement specifically named some R-rated videos that were available at a local rental store, including Madonna's Body of Evidence.

Now comes Senator James Exon (D-NE), who would extend the community standards of Islamic fundamentalists and rural Georgia to the wide-open reaches of cyberspace. On Feb. 1, Senator Exon (along with Senator Slade Gorton) introduced S.314, the Communications Decency Act of 1995. If adopted, the bill would impose jail terms and fines on anyone who uses a "telecommunications device" to "make, transmit, or otherwise make available any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent." Not only would mere transmission of prohibited material be criminalized, but any entity that "knowingly permits any telecommunication facility under his control" to be used for such purposes would be subject to the same penalties.

The proposed law would make all participants in telecommunications, including carriers, online services, electronic bulletin board operators, and individuals, strictly liable for all content transmitted over their facilities. The measure would have special relevance for providers of video services in a video dialtone world. It would apply to all programmers--including broadcasters--to the extent their images would be transmitted over telecommunications networks.

The law would whipsaw the participants between the statute's conflicting demands: on one hand, it would hold them strictly liable for any tainted image or information made available over their facilities whether or not they had knowledge of the transgression; on the other hand, it also would penalize any "knowing" transmission of disapproved material.

The Center for Democracy and Technology, a cyberspace public interest group, warned in a recent online alert that S.314 would "compel service providers to choose between severely restricting the activities of their subscribers (e.g. by monitoring and censoring all communications) or completely shutting down their e-mail, Internet access and conferencing services under the threat of criminal liability."

Heads the government wins, tails the First Amendment loses.

When he introduced an earlier version of the bill last year, Senator Exon said he was concerned about the law's ability to keep pace with the new technology. "Before too long," he told his Senate colleagues, "a host of new telecommunications devices will be used by citizens to communicate with each other. Telephones may one day be relegated to museums next to telegraphs. Conversation is being replaced with communication, and electrical transmissions are being replaced with digital transmissions...Anticipating this exciting future of communications, the Communications Decency amendment I introduce today will keep pace with the coming change."

But if this amendment becomes law, Congress needn't worry about the pace of change, for the future will take longer to arrive. And when it does, it will be far less exciting.

Last year the investment consulting firm Berstein Research predicted that the electronic superhighway would develop more slowly than many anticipated--and certainly more slowly than federal policymakers would like--because of legal uncertainties. Among the concerns was uncertainty over transmission of sexually oriented images. The Center for Democracy and Technology agrees, calling S.314 "a tremendous step backward on the path to a free and open National Information Infrastructure."

The overpowering irony is that most of the "bad news" about the purported dangers of cyberspace that Senator Exon seeks to avoid is the good news. Broadband networks connected to computers have been promoted because they can connect individuals to an unprecedented array of information and entertainment sources with the added feature of interactivity. The new medium can empower individuals in ways that are unmatched by any previous technology. Now, however, legislation is being demanded because the Net threatens to connect individuals to an unprecedented array of information and entertainment sources.

Another irony is that no legislative solution is needed to address whatever dangers may lurk out there. Most interactive software already includes the capability to allow parents to screen out unwanted information. Internet browsers and software for online services, such as CompuServe and America Online, allow users to limit access to specified information sources. Another service--Prodigy--markets itself as a family-oriented service that limits potentially offensive content for its subscribers. In most cases, subscription to an online service requires the subscriber to have a credit card, thus assuring some measure of adult involvement--and, hopefully, supervision. The same type of control mechanisms are increasingly available with subscription video services.

The Supreme Court has said that the Constitution prohibits the government from reducing the adult population to reading only what is fit for a child. S.314 would reduce cyberspace to transmitting only what is fit to be on over-the-air television. Adopting it would be a crime.

Mar. 13, 1995 - Broadcasting & Cable

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