From declan@well.comTue Jul 9 18:38:41 1996 Date: Mon, 8 Jul 1996 09:42:50 -0500 From: Declan McCullagh To: fight-censorship+@andrew.cmu.edu Subject: Response to pro-CDA opinion piece in Washington Times (7/7/96) Bruce Fein, a conservative writer and attorney, attacked the CDA decision and the three-judge panel in a Washington Times op-ed last month. Attached is my response to him that ran in Sunday's newspaper. Redistribute freely. -Declan ============================= The Washington Times Sunday, July 7, 1996 Page B5 FREE SPEECH AND THE INTERNET By Declan McCullagh (declan@well.com) In his 18 July op-ed supporting the Communications Decency Act (CDA), Bruce Fein rails against a Federal court that recently declared the law unconstitutional. Mr. Fein cries that "mad cow disease" has infected the U.S. judiciary, but the court's unanimous ruling gives the lie to his rhetoric -- this big-government censorship act is now dead meat. It's a timely, well-deserved death, and the U.S. Supreme Court is unlikely to resuscitate the law. That's because the lower court based its decision not on the cyberporn hysteria that whipped Congress into a censorhappy frenzy last year, but on an understanding of the Internet and on carefully-articulated legal principles. Mr. Fein's claim that Federal bureaucrats can regulate the Internet like radio or television betrays a fundamental misunderstanding of online technology. Cyberspace isn't a one-to-many broadcast medium like TV. Instead, it's the first many-to-many medium that allows anyone who publishes or speaks online to reach anyone else who wants to read or listen. The three-judge panel in Philadelphia recognized these unique aspects of the Net. "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion," Judge Stewart Dalzell wrote in his opinion. "The Internet is a new medium of mass communication." Judge Dalzell's remarks show that he "gets it," i.e., that he understands that cyberspace should enjoy constitutional protections at least as broad as what newspapers and books enjoy. In other words, what's legal to publish in print should be legal to publish online. Mr. Fein also claims that the CDA will "protect minors from cyberspace indecency." Yet if the Supreme Court upholds the law as constitutional, minors still could hunt down scans of balloon-breasted babes on Swedish web sites. The judges recognized this, noting that half of the global Internet lies overseas and European porn-purveyors "have little incentive" to follow a U.S. law. "The folks in Luxembourg don't give a damn what our laws are," said Judge Dalzell during the hearing. The plaintiffs challenging the CDA offered a more effective solution during the hearing. The American Civil Liberties Union and American Library Association attorneys demonstrated filtering software that automatically blocks -- with a bright red "Do Not Enter" graphic -- material including the www.playboy.com web site and Germany's de.alt.binaries.pictures USENET newsgroup. Unlike the big-government censorship boondoggle Mr. Fein defends, that free-market approach keeps control over inappropriate material where it should be: in the hands of parents. Concludes Mr. Fein: "Congress endeavored in the CDA to voice concern over the sexual morals of minors." That may well be true -- but when will our legislators learn that legislating morality isn't good for the Internet and isn't good for our society? Perhaps Mr. Fein had it right and Mad Cow Disease is to blame. After all, the infection spreads when cows consume the brains of their dead siblings in a kind of cannibalistic gazpacho. The same disease seems to have smuggled its way into the U.S. Congress, where our overstuffed elected representatives chow down on the same dead ideas. --- The writer (declan@well.com) covers net-politics and is a plaintiff in the lawsuit challenging the CDA. He has been on the Net for eight years. ###