Free Speech and the net
GELERNTER, DAVID
Free Speech and the Net The Communications Decency Act Is an Ineffective Mess. But the Supreme Court Should Uphold It. By David Gelernter The Communications Decency Act of 1996 is an attempt to...
...The community wants to tell its children: We'd like to shield you from the spirit-destroying coarseness of this culture we've created...
...No sane person claims that Congress is the unadulterated voice of the people, and the Communications Decency Act is no masterpiece of an utterance, but the community's voice comes through loud and clear if you listen—and the message is plain and right...
...The public finds itself in the position of a mother telling her child, "I don't care what Jimmy's mother lets him do...
...The public's anguished, even incoherent outcry over decency, or the intelligentsia's suave practiced spiel about how (to quote the Times editorial again) we should "honor free speech...
...Public is one thing and private is another...
...Like many people, I usually have a Web browser running on my computer at work...
...The act has to do with Web sites and the Internet...
...you could mosey up to my machine and call up a Web site from my "hot list" at the cost of one mouse click...
...A crucial distinction has been plowed under: the distinction between the Web and e-mail...
...Do you want your kids learning how to poison their best friends...
...The same point seemed to get lost when Justice Kennedy asked Waxman whether it would be constitutional to prohibit adults from having indecent conversations on the street, where children might overhear...
...What she does know is that her self-respect requires her to take this stand and that she owes it to her child, whether it works or not...
...The community wants to tell the computing industry and the techno-elite: We're not intimidated by your technology, and don't carry on like you own the joint...
...Whoever wins, the practical consequences won't be much...
...No one in his right mind would allow a child to roam the Internet unsupervised whether or not the act is upheld...
...opponents insist that the analogy is wrong...
...If you do and children slip in anyway, you are in the clear...
...It's not that there's anything really wrong with the bill, if you want to get technical, but it just somehow puts civil libertarians in a bad mood...
...Enjoying lesbo-pagan rants, radical-environmentalist apocalypses about the imminent death of the world, discussions about how and why to commit suicide...
...The government's job is to avoid putting up obstacles, not to lead parents by the hand...
...Perhaps it could, but so what...
...But they'll survive...
...The government claims certain rights to regulate Web sites based on its acknowledged right to regulate TV programs...
...But get this: Right is right and wrong is wrong—on the Web, and on Venus, and every other damned place, and don't you forget it...
...Waxman answered, instead, that perhaps a city could prohibit adults from holding "patently offensive" conversations in public...
...in this house we don't use that kind of language...
...A network of wires that are high-capacity (like cable TV) and bi-directional (like phone lines) and designed for digital traffic exclusively—digital TV, digital Web sites, it makes no difference—is on the way...
...Civil libertarians worry about "chilling effects" on free speech when (for example) adults face up to the awful reality of having a fee for certification services show up on their credit-card statements...
...The Times denounces the act as "government censorship," but you can only wonder what kind of bozo definition of "censorship" they are using...
...So it's up to the Supreme Court...
...There are other similarities between the Web and Contributing editor David Gelernter is professor of computer science at Yale University and adjunct fellow at the Manhattan Institute...
...In some ways, it is a pointless stand...
...Probably one that is understood only on the West Side of Manhattan...
...But I can set their minds at ease: Relatively few of these companies will be inspired to call themselves United Perverts of America or LuvPornCo Inc...
...The community wants to tell the perpetrators of indecent Web sites: Do what you want, but keep away from our children...
...To prove adulthood you type in a private ID number, which you get for a few dollars from a mail-order certification service...
...It seems to me, in short, that the Communications Decency Act won't accomplish much in practice, and from a certain standpoint might even be dangerous...
...Justice Breyer asked Seth Waxman (the deputy solicitor general, who argued for the government) whether the act would make it illegal for teenagers to chat using computers about their "sexual experiences, real or imagined...
...No topic makes us feel guiltier nowadays than children, for good reason: We have betrayed our children shamelessly...
...A reasonable question...
...To watch a TV program or visit a Web site, you punch in a code (a number for a TV station, some letters for a Web site) and hope for the best...
...Both sides have made their positions as clear as mud, and it is hard not to suspect that the act's opponents have tried to mislead the public on purpose...
...Our public schools are a failure...
...3. What your children do is your responsibility, not the government's...
...it's much easier to set up shop as a Web site than a TV station, and so on...
...The Supreme Court listened to arguments in March (the Clinton administration defended the law) and will announce a decision before the summer...
...And by the way, there is no topic that is too depraved to pop up at a Web site or network bulletin board...
...She has no illusions that she is sheltering the child, still less that she is changing the world...
...There is material on the Web and on network bulletin boards that is too revolting to describe...
...1. It won't work...
...Justice Kennedy opined during the hearing that the Web's global reach wasn't an issue, because "if the United States has a public policy, it can lead the way, and maybe the rest of the world will follow...
...Its constitutionality has been challenged...
...What it comes down to in the end is, which voice will carry the day...
...I'm not a lawyer and won't hold forth on the act's constitutionality...
...As far as the act is concerned you can make your Web site as indecent as you like, so long as you make an attempt to keep children out...
...American laws are binding on American Web sites, but the Web is international, and it is no harder to tune in a foreign site than an American one...
...But if you set up an Internet "chatroom" where the public is invited to ruminate about sex online, then the act presumably does require you to keep teenagers out...
...You can put any site you choose on the list...
...This has been going on for a generation, during which time American culture has collapsed...
...Waxman answered yes, you might at that, but it was "a small price to pay" for keeping children away from "Penthouse, Hustler" and so on...
...The idea that a locale with the old-fashioned moral standards of Holland or the fresh, clean air and health-giving fjords of Scandinavia might harbor pornographic Web sites may seem far-fetched, and yet it's true...
...If not, you can only sigh and note that Holland and Scandinavia don't seem terribly interested in following our cultural lead on pornogra-phy-and-society type issues right at the moment...
...The distinction is ancient and obvious: When people communicate privately the law rarely interferes, but when they open a restaurant, it's a different story...
...But last summer federal courts in Manhattan and Philadelphia held that the "indecency" provisions were unconstitutional and ordered that they not be enforced...
...If the act goes down, children will still be exposed to trash on the Net...
...If your Web site is "indecent," the act requires that you take steps to keep out children under 18...
...You can count on the fact that some of these "perpetrators" will be legitimate artists or thinkers who don't deserve to be insulted...
...The act that was passed last year applied to "obscenity" and "indecency...
...Anyone can put anything on the Web...
...If you find this message insulting, good...
...A Web site is a sort of special-purpose cable-TV station...
...By David Gelernter The Communications Decency Act of 1996 is an attempt to keep children away from "indecency" on the Internet and the World Wide Web...
...TV is better for video and the Web for words...
...As the great Harold Ross used to say, dismiss it from your minds...
...Do you suddenly make large numbers of high school students across the country guilty of a federal offense...
...Televisions and computers need to be turned on and told what to do, and in each case the process is simple...
...And yet, had I been a member of Congress when it came up, I would have voted for it, and on balance we're better off with it than without it...
...I will only note that the oral argument before the court in March was rich in exchanges that must have been thrilling to the practiced legal mind, but to the naked eye seemed basically like nonsense...
...Our guilt is so acute we are liable to do nearly anything to quiet it, but papering things over with legislation is a bad strategy and won't work...
...The act has three big problems...
...It may be that (as you say) the Internet is utterly new, global, democratizing, mesmerizing, the greatest single invention since the food court or possibly even the roofed-in shopping mall...
...Even so, if a child found himself in the tough position of having to specify an entire Web site explicitly, with no hot list to guide him, that would be roughly as burdensome as typing his name...
...Announcing that some bill or other will have "a chilling effect on First Amendment rights" is the ACLU's way of telling Congress "not tonight, dear, I have a headache...
...Reasonable steps" means a software security gate that requires potential visitors to prove their adulthood and turns them away if they can't...
...we know it and do nothing...
...When you chat with a friend on a public street or anywhere else, you are inviting the public to butt out, not listen in...
...If you don't, you can be fined and sent to prison...
...Some people have the idea that when we talk about "objectionable material" on the Internet, we mean Playboy centerfolds...
...The generation before ours thought it was perfectly reasonable for a mother to leave home and pursue a career, but we hold it to be the only virtuous course, and our scorn for homemakers who devote themselves to child-rearing is a tragedy and a disgrace...
...Your "hot list" includes Web sites you visit often...
...cable...
...It is generally conceded that the First Amendment doesn't cover obscenity, and the obscenity provisions of the act weren't challenged...
...2. The only way to make a culture that is good for children is to make one that is good for adults...
...You could argue that the bill is likely to be helpful to parents of porn-crazed kids who are also xenophobic, but the practical benefits don't go much beyond that...
...The First Amendment guarantees free speech to every individual, but the community has a right to speak too...
...If the act is upheld, the adult-certification business will boom, indecent sites will shell out a modest sum for software gateways, adults will pay a couple of dollars to get certified, and that will be that...
...This is nonsense...
...Teenagers can sex-talk one another to death using e-mail and the act couldn't care less...
...Waxman should have pointed out that the question is irrelevant: A private conversation may be overheard, and a private party may be crashed, and a private letter may be steamed open, but we can't hold the violated party to account for the consequences...
...Presumably he was kidding...
...And yet, whenever the topic turns to society's moral structure, and the public clears its throat and tentatively offers an opinion, the New York Times tells it to shut up...
...In both cases, you need a receiver (a TV or a computer), and program material is pumped in over wires...
...It prohibits the "display" of indecent material on an "interactive computer network...
...We don't really know how, but we're trying...
...surfing is popular in both cases...
...For the record, all these differences are artifacts of a bygone technological age and in time will disappear...
...There are good reasons to be against the act, but, on balance, there are stronger reasons to be for it...
...Electronic mail deals in private messages from the sender's computer to the receiver's...
...If the act is upheld, children could still be exposed to trash on the Net...
...Whether or not such material corrupts children, it is almost guaranteed to upset and depress them...
...Why...
...The act is bad insofar as it holds out false hope...
...Some cable channels and Web sites carry advertising, some don't...
...In their current forms, the Web and TV are by no means the same: The Web is better for shopping, because you can talk to (and not just hear from) a Web site...
...Whether her ruling will matter in the long run even to the kid himself, she doesn't know...
...Child-rearing is the business of parents...
...The New York Times put it this way in an editorial (the Times has come out against the act): "While children can come upon explicit material simply by turning on a television, computer users must actively search out the material they want to see...
Vol. 2 • May 1997 • No. 34
