The overturned Communications Decency Act of 1996 attempted to place limitations on
speech on the Internet that is deemed "indecent." They define "indecency as
speech depicting or describing sexual or excretory acts or organs in a patently
offensive fashion under contemporary community standards." To
operationally define this (according to www.spectacle.org Internet
Censorship FAQ):
"indecent" - "Indecency" is a vague standard long used to prosecute explicit,
outspoken speech in the Western world (for example, Radcliffe Hall?athbreaking
but actually very restrained lesbian novel, The Well of Loneliness, was indecent
because of the phrase, "And that night, they were not divided.") Indecency laws are
completely unconstitutional as applied to print media, while broadcast spectrum
scarcity has been used as a rationale to continue applying such laws to broadcast
media. Indecency laws in general, the CDA in particular, contain absolutely no
exception for speech with scientific, literary, artistic, or political value.
"depicting or describing" - The word "describes" confirms that pure text can be
illegal under the CDA. Courts in recent decades have tacitly acknowledged that
sexually explicit text cannot be held illegal under obscenity laws. Books such as
Henry Miller's Tropic of Cancer and James Joyce's Ulysses, which were held years
ago to be significant literary works and not obscene, could fall prey to the broader,
vaguer CDA language if posted online.
"sexual or excretory acts or functions" - While the reaction of some observers
to this, the core of the CDA's prohibition, may be "So what?", pause for a second to
imagine that you enter your neighborhood bookstore and wave a magic wand.
Immediately, all books infringing this definition vanish from the shelves. The shelves
are now half or two thirds empty! Not only trashy bestsellers, but 19th century
classics such as Zola's La Terre and Flaubert's Madame Bovary, modern literature
such as Joyce, Miller, Nabokov and Burroughs, nonfiction works on health, aids,
rape, and sexual fulfillment, and even the Bible all vanish from the shelves! All
serious human discourse sooner or later touches on earthy topics, as history, metaphor
or information. Under the CDA, speech which is quite legal in a book or magazine
should be banned from the Internet.
"patently offensive" - This wording, which the CDA picked up from the
Supreme Court's so-called Miller standard of obscenity, allows a jury to decide that
material is illegal based on how the jury feels about it. Patent offensiveness is an
extremely subjective standard; coupled with the contemporary community standard
provision, below, it is a recipe for disaster. In a case called Eckstein v. Melson, the
owner of a bookstore was threatened with prosecution if she continued carrying
obscene, patently offensive materials. But when she asked the prosecutor, the police
and numerous other public officials to tell her what she was carrying which was
"patently offensive" (FBI agents raiding her shop had seized novels by John Updike,
among other materials) no-one would tell her. A "patent offensiveness" standard
means that you engage in explicit speech at your own peril.
"contemporary community standards" - The 1973 Miller case on obscenity held
that local communities could apply their own standards to determining whether
material is obscene. This approach barely makes sense for works such as movies or
magazines, which distributors can refrain from showing or selling in conservative
jurisdictions. However, a 1994 case, U.S. v. Thomas (known as the Amateur Action
case) upheld the conviction of two California sysops under Tennessee standards.
Their crime had been to place obscene material on their California BBS which
offended the community of Memphis, Tennessee. This result, now codified by the
CDA's use of the "community standards" wording, means that material placed on the
Internet anywhere must satisfy the standards of every community that has Internet
access anywhere in the U.S. In other words, the standards of the most conservative
community now apply to the entire Internet.
In 1997, the CDA was struck down in a landmark case, Reno v. ACLU. This case involved Attorney General Janet Reno and the victorious American Civil Liberties Union. The U.S. Supreme Court ruled that the CDA violated the First Amendment guarantees of free speech. Justice John Paul Stevens wrote the Court's opinion, rejecting any censorship of online media.
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