Mass media: Telecommunications Reform Act 1996

Communications Decency Act

The Communications Decency Act (CDA) is only part of the Telecommunications Reform Act 1996 (further details may be found on-line at http://www.fcc.gov/telecom.html) which introduced broadcasting-type controls on the Internet's possible 'indecency'. In response to the Intention the Electronic Frontier Foundation launched the Blue Ribbon Campaign, a call for Internet users to protest against the intended legislation by displaying the anti-censorship Blue Ribbon on their pages. The campaign continues, with periodic 'alerts', as below:

Join the Blue Ribbon Online Free Speech Campaign!

The above links to the EFF's campaign and the EFF site remains a good source of the latest information relating to Internet censorship in the US. In the public debate over control of the hitherto unregulated content of the Internet, many of the other provisions of the Telecommunications Reform Act have tended to be overlooked as public attention has focused on the protests against the CDA.

Decency provisions affecting the Internet

Introduced into Congress by Senator James Exon, the Act passed into law on February 1 1996, turning the Internet from one of the freest forms of communication ever into one of the most tightly regulated. Under the terms of the Act online services cannot allow access to "pornography" or the use of the "seven dirty words" in any form. From being a largely unregulated form of communication, the Net suddenly came under the most restrictive form of censorship applied in the USA. The Act makes a crime the knowing transmission of any communication accessible to minors which is considered "obscene, lewd, lascivious, filthy, or indecent" and also prevents any publicity of abortion services. Punishment includes a sentence of up to two years in prison and a $100,000 fine.

Constitutionality of such provisions

In June 1996, a three-judge panel in Philadelphia ruled parts of the the Act unconstitutional. This was appealed against by the Justice Department. The principal argument against the Act is that it is unnecessarily broad in its scope. It has been established in previous rulings that certain forms of language and indecency may be banned from radio and television at times when children may be exposed. However, it has also been established that the medium must be 'pervasive' and that the telephone is not 'pervasive'. In that case, there is a strong argument that the Internet is also not pervasive, since the user must actively seek out material in a way which is not the case with TV and radio. Further, the Act allows the infringement of privacy rights. It has already been established that the government has no jurisdiction held in private. The Act, however, empowers federal agencies to intervene in, for example, the sending of private e-mail between individuals. The Act also makes responsible not only the publishers of offending material but also those who distribute it, namely the Internet Service Providers. In attempting to avoid prosecution they may have to act as private censors, action which may in itself be unconstitutional.

CDA struck down by the Supreme Court

On June 26 1997 the US Supreme Court delivered the result of its deliberations on a challenge to the CDA, agreeing with the District Court judges that it was unconstitutional. They argued that the use of the Internet could not be compared with the use of television or radio since the Internet is not as 'inavisve as radio or TV and "a child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended" and because sites which contain explicit material are preceded by warnings about their content. They also pointed to the various systems in place to allow parents to control access to explicit sites. The judges also pointed out that TV and radio were originally centrally regulated because of the scarcity of room in the airwaves, an argument which cannot be made for the Internet. The judges considered that "the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." They reiterated their view that the concern to protect children "does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not 'reduc[e] the adult population . . . to . . . only what is fit for children.'"

In order to avoid possible legal action, many providers of potentially offensive material ensure that their front page has an extensive warning which requires the users to 'accept' or 'not accept' in order to gain entrance, many encourage the use of 'screening' or 'blocking' services such as NetNanny and many require an 'adult check' ID. It seems unlikely, however, that campaigners will be satisfied with the Supreme Court's ruling and it is to be expected that further bills will be introduced into Congress.

CDA II

Since the CDA was struck down, The Child Online Protection Act, generally referred to by Net libertarians as CDAII has been making its way through the House. It seeks to narrow the focus of CDAI by limiting legislation to commerical concerns on the world-wide web as well as by using a narrower 'harmful to minors' standard. If the bill became law, commercial providers of web materials 'harmful to minors' (a recognized category of speech) would be required to use an age-verification scheme. Unlike the original CDA, the bill requires research into methods for protecting children from 'harmful' content and also seeks to protect those who transmit content created by others (thus, for example, an ISP could not be prosecuted merely for carrying 'harmful' material originated by a third party). Amongst criticisms currently being voiced by campaigners against the bill are the following:

1. Whilst this bill seeks to be less restrictive than CDAI, that may prove to beits undoing, since the Supreme Court has stated that a law cannot be regarded as protecting an interest of the highest order when "it leaves appreciable damage to that supposedly vital interest unprohibited", which is exactly what the proposed law would do by failing to limit access to foreign porn, Usenet porn etc.
2. The bill does not provide for the use of the least restrictive method. Such 'least restrictive' methods, such as 'content advisor ratings' set on the individual browser by parents were explicitly commended by the Supreme Court in their decision on CDAI
3. 'Harmful to minors' is likely to be understood within 'prevailing community standards' (see the Miller Test). Since, where the Web is concerned, the 'community' is the entire USA, the inevitable effect of this provision would be to chill speech, with information providers supplying content which would not offend the 'prevailing standards' of the most restrictive 'community'.
4. In applying for age verification, users lay themselves open to exposure as users of material deemed 'harmful to minors'. The Supreme Court has already struck down such legislation as it related to cable TV, sinc ethey recognized that users may be unwilling to register, in view of the risk of exposure.

Currently, it seems unlikley that CDAII will succeed.

Apart from the CDA provisions, the Telecommunications Reform Act, depending on one's point of view, could be seen as in many ways more pernicious than the originally proposed Communications Decency Act. In fact the debate over indecency has obscured the possibly more important effect of the Act, namely the dramatic reduction of restrictions on cross-media ownership, throwing the development of the convergence of modern communication technologies squarely into the capitalist free market, rather than the controlled, 'social responsibility' or 'public service' model of Internet development which Clinton and Gore appeared to promise when they came to power. The effect of the Act is to intensify the sell-off of the Net begun in 1995 when the US portion of the backbone was gradually transferred to privately-owned corporations and the National Science Foundation shut down its part of the Net.

The decency requirements of the Act do not only affect the Internet. Broadcasters are also affected, since the Act requires the fitting of a v-chip to televisions, technology which necessarily entails that broadcasters label their content. The Act therefore 'encouraged' broadcasters to develop an appropriate labelling system by 1997, warning that one would be imposed by the Federal Communications Commission (FCC) if the broadcasters did not comply, though it was clear that such an imposition would be fraught with difficulty in the US because of First Amendment issues.

To everyone's relief, the broadcasters did agree to develop a system. The argument then centred on just what the system should be. The broadcasters were keen to develop a straightforward age-based system such as was already in force for movies in cinemas, but pressure mounted on them to introduce a more complex system which would give parents more precise information about the contents of programmes. It began to look as if the broadcasters would not comply and as if the FCC would have to attempt to impose conditions, which would have given rise to endless litigation. In fact, Rupert Murdoch, owner of Fox Network, was one of the first major players to indicate his willingness to comply. One might suspect that this willingness derives form his moral convictions as a born-again Christian; the more cynical might consider that he saw acceding to the FCC's demands as a small price to pay for keeping the government sweet on deregulation and increased market competition, especially as his News Corporation already had many issues before the government awaiting decisions.

I would not wish by any means to question the motives of those individuals and organizations such as the US Libertarian Party, the American Civil Liberties Union, Electronic Frontier Foundation, which fought against the restrictions on free speech which were originally incorporated into the Act's decency provisions. I fully support the opposition to the proposed 'decency' controls. However, I am suspicious of the motives behind the major corporations' sudden reversal, since it is clear that they gain hugely from the other provisions of the Act. It is a pity that the agenda was captured almost exclusively by those who focused on the free speech issue as it was reflected in the decency provisions, since the question of media ownership is clearly also relevant to freedom of speech. Unfortunately, little attention was paid to the Act's dramatic deregulation of media ownership. And here it is pertinent to ask why the campaign against the decency provisions was so successful in occupying the media agenda, particularly if we assume that the media do play an agenda-setting rôle. Clearly any major corporations would prefer to operate in an environment where regulation is minimal, so it hardly comes as a surprise to find the media corporations giving extensive coverage to a campaign which seeks to reduce at least one aspect of proposed regulation. The Telecommunications Act clears the way for an intensification of mergers and take-overs and the creation of huge media corporations. Increasingly free speech becomes an oxymoron since any kind of speech is available only to those who can pay for it. Freedom of speech is not determined solely by what the government allows you to say, but also by the ownership of the media through which you can say it. It seems to me questionable to argue that such massive corporations can reasonably be treated as individuals under First Amendment legislation, though that is what the anti-censorship campaign in effect supposes. Justice William J Brennan famously stated in the case of New York Times versus Sullivan that one of the functions of the First Amendment is to provide the opportunity for 'robust public debate'. Increasingly, deregulation of the media and concentration of ownership threatens to close down public debate. It is naïve to suppose that it is only government which has an interest in censorship (which is what seemed to be the main thrust behind the anti-censorship campaign) when major corporations also have a clear interest in it. The state is not the only Big Brother; nowadays it is not even the biggest of the Brothers. In my view, the Telecommunications Reform Act deserved to be opposed in its entirety on free speech grounds.

Be that as it may, a deal was brokered over content labelling, namely that the government would refrain from the introduction of further content legislation for a period of three years, if the networks introduced content labelling.

At present, therefore, as far as I am aware, the position is that all networks in the US label content according to the FCC's wishes, except for NBC, which continues to use age ratings.

Related articles:

Censorship and regulation of the media: contents list

Regulation of the Internet

Sex and violence in the media

annoy.com (note that you need to be broad-minded and have a sense of humour for this; given those, an excellent site)

The Centre for Democracy and Technology

Free! - Freedom Forum Online

American Civil Liberties Union

The Internet Censorship FAQ

National Coalition Against Censorship Website

Electronic Frontier Foundation website

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