Masthead CMC Magazine July 1, 1995 / Page 8


Can the US Congress Define Decency?

by Lisa Schmeiser (

By the time you read this, Congress will be preparing for the second step of turning a bill into a law -- in this case, the mammoth communications reform bill. Amidst the deregulation of cable companies and other big-business concerns, James Exon slipped an amendment in to try and regulate computer-mediated communication in the name of decency. The Internet, the argument goes, is an electronic adult bookstore targeting the Power Rangers crowd. It needs to comply with the family values the rest of us have off-line.

Civil rights activists have already warned us that Congress's attempt to define free speech in the computer-mediated medium will inevitably degenerate into a legal saga involving more money, sex, and states' rights than Gone with the Wind.

So why are the senators going to the trouble? Who's responsible for this? The answer isn't as easy as you'd think; Jim Exon is only following in the legal footsteps of others before him. The future of free speech was shaped in 1919, before anybody but H.G. Wells dreamed we'd be connected in a global network.

This Little Idea Went to Market. . .

Oliver Wendell Holmes immortalized the idea of free speech as a marketplace of ideas when he wrote: "the ultimate good desired is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market." (dissent, Abrams v. United States, 1919)

The metaphor stuck. Free speech was a supermarket, and the ideas articulated through speech the conceptual groceries. Unfortunately, another part of the metaphor stuck to free speech as well -- economic merit. Money and freedom of speech became tied to each other much in the same way capital determines whose goods get to the market. One example of this is the 1977 Hudgens case, where the Court granted land owners the right to decide what forms of speech are exercised on their property.

Another example is the 1976 ruling in Buckley v. Valeo, where the Court determined the government could not "restrict the speech of some elements of our society in order to enhance the relative voice of others." If you apply this principle to a market -- a grocer cannot reduce the Snackwells section in order to enhance the Pepperidge Farm section -- it is a sound principle.

But what if Snackwells launches a multimillion dollar campaign -- free cookies for entire school districts, etc.? Their "idea" is favorably received and judged as the best in a marketplace. Pepperidge Farm gets left in the dust, despite their mint Milanos.

The first -- and longest standing -- argument against the marketplace metaphor is that it ignores the line dividing an idea's conceptual worth and an idea's financial backing.

All Speech Is Equal,
but Some Speech Is More Equal Than Others

In 1969, the Supreme Court linked technological progress and the First Amendment, writing "Differences in the characteristics of new media justify differences in the First Amendment standards applied to them." In other words, all speech is protected by law, but some speech is more protected than others. The two criteria for granting legal protection to free expression are common carrier capacity and resource scarcity. The first criteria, common carrier capacity, is fairly simple: common carriers are defined as "[a service] that makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate and transmit intelligence of their own design and choosing." Telephones are classed as common carriers, which means telephone companies must transmit all messages regardless of content.

The second criteria has had lasting impact on First Amendment" rulings. Scarcity was first brought into free speech considerations in 1943, when Felix Frankfurter wrote: "[radio broadcasting] facilities are limited; they are not available to all who may wish to use them; the radio spectrum simply is not large enough to accommodate everybody."

Therefore, if people or companies wanted to utilize a finite resource -- to ask for limited shelf space in the marketplace of the mind -- they had to be willing to accept and abide by regulations that take into account whether the broadcaster is operating in the best public interest and what the exact contents of the broadcast are. Unlike newspapers and magazines, which exert editorial control over their content, radio and television stations must comply with content regulations.

So why are radio and television stations singled out for the finite resources rationale? Shouldn't print qualify? Aren't trees considered limited resources too? Only to ecologists -- the Supreme Court considers different criteria in its definition of a scarce resource. In order for a medium of communication to be considered "scarce" it has to be composed of a finite and limited resource. Radios and televisions operate in the "limited" electromagnetic spectrum; subsequently, public broadcasters are licensed to use this resource on the condition that their content is based on public interest, convenience, and necessity. The Court reinforced the principle of a scarce resource being used for the best public good when it ruled that frequency scarcity justified regulatory efforts so the public could enjoy their legal right to be exposed to diverse points of view (Metro Broadcasting Inc. v. FCC, 1990).

The right of the public to have access to several points of view was an underlying concern of Holmes, which is why he lobbied for a market where Americans could take part in the exchange of ideas. Since the line between the ideological market and the economic market has been blurred, the legal standards for communicative media and the recipients of public communication have become paradoxical.

How so? Americans have the right to be exposed to a variety of viewpoints, but there's no legal guarantee for a variety of speakers to express them. The Court has ruled, on multiple occasions, that the rights of the public to hear free speech and diverse views are not the same as the rights of a speaker to express those views (Red Lion, 1969, Columbia Broadcasting System v. the Democratic National Committee, 1973).

So television and radio stations must express a wide range of opinions -- so long as they are all interesting, convenient, and necessary. Regulating the types of ideas that compete in the market flies in the face of Holmes' free exchange of ideas; viewpoint diversity and ideological Darwinism just don't mix. As Jerome Barren wrote, inequalities in a free market are part of the reason "[t]here is inequality in the power to communicate ideas."

So, we have two criteria for granting First Amendment protection to the contents of a communicative medium. We have common carrier capacity -- a type of technology the Internet utilizes in a philosophy of public availability that is becoming more real every day. And then we have scarcity; access to the Internet is still not as common as access to a telephone, and the information traveling the Internet does so within limited bandwidths.

There's no easy criteria for deciding how much protection freedom of expression has on the Internet. Applying assumptions about the nature of technology won't help; the technology powering the Internet today will be replaced by bigger, faster, and more flexible technology within six months.

And, Your Point Is?

The recent media focus on the Internet, and why the senators sought to regulate its content, left the public with the erroneous idea that the Net was solely a playground for perverts. "Danger Online!" screamed Newsweek, recounting the sad stories of two teenagers who, lured by people they met through the closed service America Online, ran away from home. A recent spate of newspaper articles focused on parents who claim their children are being assaulted online by lurking pedophiles, and they want protection.

It's reasonable to want to protect children from perverts. However, the focus of the parents' blame is wrong; no-one is forcing anyone else to log online.

If parents don't want their children exposed to the plethora of perverts who supposed occupy cyberspace, the parents have the option of logging off a commercial service; the Court ruled in Cohen v. California (1971) that viewers and listeners are responsible for protecting their own privacy.

Furthermore, nearly every complaint the media has dredged up comes from people who paid to participate in online services. These peoples' participation in the electronic medium was voluntary; therefore, the participants retained some control over their surroundings with regard to how and when speech is received. The Supreme Court ruled in Bolger v. Youngs Drug Prods. Corp (1983) that if a person can control their surroundings, then the government may not regulate the individual's viewing and listening decisions.

"So how do we protect the children?" the critics cry. The Supreme Court supports the radical notion of parental responsibility. The federal government's obligation to act in loco parentis was thrown out of the courts in 1960.

Finally, the "decency" amendment's purpose of prohibiting the distribution of pornography to minors is built on shaky legal ground. Sable Communications v. the FCC (1989) struck down a ban on "indecent" interstate telephone messages. Like the proposed Exon amendment, the phone statute had been authored to try and prohibit children from accessing sexually explicit material. The majority found:

"in contrast to means of expression which the recipient has no meaningful opportunity to avoid the dial-in medium requires the listener to take affirmative steps to receive the communication.... Placing a telephone call is not the same as turning on the radio and being taken by surprise by an indecent message."
The same principle applies to the Internet. The people who log onto the Playboy and Penthouse sites, or to the myriad newsgroups are doing so voluntarily -- even the minors.

Clearly, the Exon Amendment can be challenged on a number of legal principles. And when the inevitable lawsuits begin to reach the courts, they will drive the federal judiciary budget through the roof and imperil everyone's dream of a quick deficit reduction. So how does Congress escape from the legal corner they've backed into and still reduce the deficit by 2002? By remembering the following:

The U.S. government needs to discard the practice of granting First Amendment protection along a technological scale. It's a flawed standard in a world where technology advances every day, and one which forward thinking brewer and patriot Samuel Adams would have rejected when he wrote: "Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom. It is a very serious consideration that millions yet unborn may be the miserable sharers of the event."

If members of Congress are really concerned about the welfare of children, they should remember those words when they decide the future of an amendment that limits the future of the electronic medium. [CMC TOC]


Lisa Schmeiser is a Master's student in technical communication. She is working in Washington, D.C. this summer.

Copyright © 1995 by Lisa Schmeiser. All Rights Reserved.

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