The Telecommunications Decency Bill:

A First Amendment Analysis

by

Tamara Louzecky and David Louzecky

The Telecommunications Decency Bill, which recently passed in the Senate (SB 314), will be found to be unconstitutional if challenged in the courts and precedent prevails.

Introduced by Jim Exon (D-Neb.) and Slade Gorton (R-Wash.), this bill imposes criminal liability on telecommunications users and providers for transmission of messages considered to be "obscene, lewd, lascivious, filthy or indecent." It does this by greatly expanding the 1992 Communications Act, which allows prosecution of any individual who makes a non-consensual indecent phone call to another.

The Decency Bill allows prosecution of anyone, including providers, who transmits indecent messages over any telecommunications medium, even if consensual. If you say something lustily indecent to your spouse while away on a trip, the phone company could be liable. If you say something heatedly indecent during a political debate and flame your interlocutor on the Net, every university through which your message passed could be liable.

Too many critics are focusing on the silliness of trying to police something as complicated as telecommunications, especially the Internet. Even in President Clinton's fantasies there aren't enough federal agents for decent surveillance. But suppose your E-mail or listserve or phone is monitored for some other reason: Suppose Clinton's anti-terrorism bill passes. Although policing the Net would be a nightmare, this bill produces a chill sufficient to freeze "loving" conversations and "lively" political discussions.

The Decency Bill transforms four elements of the 1992 Communications Act. First, it expands "obscene or harassing telephone calls" to "obscene or harassing utilization of telecommunications devices and facilities." Second, it extends coverage from individuals who "make any comment, request, suggestion or proposal" to those who "make, transmit, or otherwise make available any comment, request, suggestion or proposal." Third, it covers consensual as well as non-consensual communications. And fourth, it increases the penalties from a $50,000 fine or six months in jail to a $100,000 fine or two years in jail.

Although the Constitution says, "Congress shall make no law...," Congress frequently does make laws which abridge "freedom of speech, or of the press...." And too frequently such laws are approved by the courts, which already allow restrictions of obscene, commercial, and fighting speech. Although the courts subject content restrictions to so-called "strict scrutiny," they have applied a "relaxed standard" to electronic media. Before drafting a bill, however, any legislator with a decent staff would examine three seminal Supreme Court precedents.

In Red Lion Broadcasting v. FCC (1969) the Court imposed the "fairness doctrine's" right of reply but didn't extend it to newspapers. (See Miami Herald Publishing Co. v. Tornillo, 1974.) Broadcasters, but not newspapers, are subject to certain regulations because they are licensed by the government to use a scarce resource in the public interest. Broadcasters don't have a monopoly on a resource that the government denies others the right to use.

In FCC v. Pacifica Foundation (1978) George Carlin's "Seven Dirty Words You Can't Say on Television" monologue received First Amendment protection because it was indecent rather than obscene. Although the print media could not be sanctioned for publishing Carlin's monologue, a broadcaster could because radio's pervasive presence invades the privacy of the home and is easily accessible to children. All the kids have to do is turn on the radio (or TV). Carlin can be broadcast, however, at a time when children are expected to be asleep. The Court didn't ban Carlin's routine; it regulated the time of broadcast.

In Sable Communications of California, Inc. v. FCC (1989) the Court held that although some "dial-a-porn" is unprotected because obscene, some is indecent and can't be banned because, unlike radio and TV, dial-a-porn requires the recipient to take affirmative steps to receive the material. If you have the radio on, Carlin might intrude, but in order to hear phone porn, you have to dial it up.

In the light of these rulings consider alt.sex.gerbals.bondage.ducttape. Although electronic communications are so varied in both medium and content that only a careful case by case examination can do them justice, sexual listserves are explicit interests of Senators Exon and Gorton. Unlike broadcasting, however, the Internet isn't licensed to use a resource in the public interest, and the resource isn't scarce. The Net isn't pervasive, intrusive, or easily accessible to children. Accessing it requires affirmative actions far more complicated than dialing a phone. In terms of the preceding Court-delineated characteristics the Internet, although electronic, is more like print media than broadcast media; consequently, attempts at censorship by the government should be subject to strict scrutiny by the courts.

Even if the Net is treated in the more relaxed manner, however, Sable requires that any regulation of indecent material be accomplished in the least restrictive manner. Since "adult passwords" and encryption are readily available, the Decency Bill's ban on Constitutionally protected speech doesn't pass muster.

It might be helpful to note a few features of the Internet. It's a global network connecting over a hundred and fifty countries. There are several million hosts with over fifteen million users in the U.S., and more than twice that number world wide. The rate of increase in both hosts and users makes the word astronomical seem an understatement. Since listserves and newsgroups are organized and labeled by topic, there is no doubt about content; they must be accessed by a series of complicated steps; and messages usually pass through several different systems and not always by the same route.

How do you communicate with your fellow citizens? Although we can read and listen, few of us can write or speak on radio, TV, newspapers, or magazines. Besides, most media are corporately owned even when not regulated by the government. The Internet is an important new place where non-elite citizens can speak and listen to one another. If they're left alone, these citizens might use the Net to revitalize participatory democracy.

At the moment anyone with a decent computer and modem and twenty bucks a month can access the Net. Most schools and libraries are connected, and costs will continue to come down unless the government intrudes to keep prices up and the poor off. Requiring providers to monitor traffic is one way to keep the Net prohibitive.