Message-ID: <QkwdDE_00YUvE3q2Af@andrew.cmu.edu>
Date: Tue,  9 Jan 1996 11:12:00 -0500 (EST)
From: "Declan B. McCullagh" <declan+@CMU.EDU>
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Content-Type: X-BE2; 12
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To: internet_censorship@monad.net
Subject: Re: recent Clinton bill
Cc: appell@asu.edu
In-Reply-To: <199601091535.KAA24115@top.monad.net>
References: <199601091535.KAA24115@top.monad.net>

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Excerpts from internet-censorship: 9-Jan-96 recent Clinton bill by appell@asu.edu 

> On Dec. 23rd President Clinton signed into law a bill that sharply increases 

> penalties for people convicted of an array of child-sex offenses, the 

> penalties doubling (to 24-30 months) if a computer was used to transmit 

> child pornography pictures.  Does anyone know the specific name of this bill?

>  

> Dumb question: Assuming the Exon amendment is only intended to stop the 

> transmission of child pornography over the Internet, doesn't the 

> President's bill now do that already?


David: Your question is a good one -- but since the premise is invalid, so is the consequent.


The Exon/CDA language in the telecom bill criminalizes "indecent" speech, which is far broader than "pornography" or "obscenity." Briefly, keeping in mind I'm not a lawyer:


* CHILD PORNOGRAPHY is illegal to *possess* by Federal law, no matter what the medium. Just about all countries agree that photos showing a child engaged in sexual acts is illegal. However, the wording in the US law uses the "lascivious" test, which is in the eye of the beholder. So if the police believe your photo of a naked child is "lascivious," they can prosecute you.


* OBSCENITY is illegal to *distribute* under state laws, which uniformly incorporate the Miller test. That is, material which has no redeeming artistic, scientific, educational, or political value is obscene. (There are exemptions for libraries. The ACLU has argued that Usenet is a library.) In practice, text is not obscene; only bestiality and heavy BDSM pix are.


* PORNOGRAPHY is *legal* to buy, sell, own, and distribute. It is presumptively protected by the First Amendment. There is no bright line dividing pornography and erotica.


* INDECENCY is illegal to *broadcast* under Federal law, as enforced by the FCC. Examples of indecent words include "fuck" and "cocksucker," which the Supreme Court has defined as illegal in the George Carlin speech, Pacifica case. The justification for a compelling government interest is that radio waves are pervasive, and a child can turn on the radio and hear dirty words by accident. The great free speech attorney Harvey Silverglate has been arguing "indecency" cases and managed to get the FCC to include an "indecency" exemption for material broadcast after midnight.


The current telecom bill language includes the "indecency" language. Since there are no post-midnight exemptions, it means the Internet would be the most regulated communications medium in the United States.


-Declan


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