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FINS: Communicating the Emerging Philosophy of The Information Age
FEDERAL INFORMATION NEWS SYNDICATE
Vol IV, Issue No. 5 (144 lines) February 26, 1996

CLOSING THE "VALUES-GAP":
Immaturity in Governance

By Vigdor Schreibman

Television broadcasting is a medium that decisively changed the relationship between speakers and their audiences. This preeminent electronic medium has opened the entrance to virtually every home in the nation, with 98 percent penetration and pervasive sweep like a wave of light that impinges upon everyone's intimate privacy and sensitive relationships. This has lead to the need for regulation of broadcast programming that is obscene or merely indecent, to best serve the public interest in the use of the great broadcast spectrum that is owned by the American people.

The same concerns are driving the attempt to regulate interactive telecommunications under the Communications Decency Act of 1996 (CDA) [47 U.S.C. Section 223 (a) to (h); HRept 104-458, pp. 187-191]. Computer and modem access to the Internet and other online services such as America Online, Compuserve, and Prodigy already penetrate 20 to 30 percent of the homes of American families, where children are exposed to available programming, according to surveys conducted by Dr. Mark N. Cooper, research director of the Consumer Federation of America. Moreover, Cooper says, "the adoption curve for such devices looks just like TV," and the emerging regulatory problems in protecting children from indecent or obscene programming are expected to be similar. Indeed, parents are encouraging their children to learn about computers and children are already more fluent in computer literacy than adults. Therefore, despite their many evident contextual differences, Cooper adds, one "cannot make a distinction between the two mediums" in terms of their respective overall intrusiveness and likely impact (present and future) upon the privacy of families and their children.

The most significant debate about protecting children from indecency in the broadcasting and computer network mediums, is not about distinctions in the nature of the media, Cooper stresses, "it is about the marketplace of ideas." In this context one must consider whether it is morally and systemically desirable, or permissible under the Constitution, to use the compelling need to protect the emotional immaturity of children, as a basis for Government regulation of everyone's speech in the electronic media.

The CDA deals with this fundamental policy question with sweeping restrictions upon any communications "available" to minors. Sec 223(d) would punish, with a fine and a 2-year jail term : "Whoever -- uses any interactive computer service to display in a manner available to a person under 18 years of age, any ... communications that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs...."

This prohibition was intended by Congress to apply to content providers who post "indecent" material for online display without taking precautions that shield material from minors. Congress intended the meaning of "indecency" to be the same as that established in FCC v. Pacifica Foundation,  438 US 726 (1978), and in Sable Communications of California, Inc. v. FCC,  492 US 115 (1989).

Contrary to the intent of Congress, Pacifica  authorized administrative regulation of "indecent" speech in the broadcast context, decidedly without intent to justify a criminal prosection. Moreover, beyond a narrow decision on the facts of the case, Pacifica  provides no generic definition of "indecency" passed upon by the Supreme Court, according to an opinion handed down in the first test case decided under the CDA, in ACLU, et al., v. Janet Reno,  Civil Action No. 96-963 (ED Pa, Feb 15, 1996) (citing authorities).

Similarly, in Sable  the court ruled that indecent communications are protected by the First Amendment, unlike obscenity, which is altogether unprotected. Moreover, indecent communications, which do not rise to the level of obscenity, can only be limited to serve a compelling state purpose, using the least restrictive means possible. Id at 125. The court also found that protection of minors from access to indecent material is a compelling state purpose, but that "it is not enough that the Government's ends are compelling, the means must be carefully tailored to achieve those ends."

It boggles the mind to contemplate the actions of Government officials who would criminalize electronic speech in such a sweeping manner following those cases, which stand for the very opposite principles. One must understand, however, that those actions are part of a broad pattern of immaturity in governance. It was gross political immaturity, rather than the search for a balanced telecommunication infrastructure needed by a mature democratic society, which governed the decision making process that produced the Telecommunications Act of 1996, and each of its titles. This immaturity in governance is egregiously harmful to citizens and seriously undermining the democratic mission of the United States, which is already in a precarious state. This pattern is evident in behavior, which would:

• constrain the marketplace of ideas that has historically emancipated individual freedom of expression;
• chill the promise of a synthesis of valued ideas obtained through the interactive capacity that is inherent to the new mode of telecommunications;
• exacerbate the gap between rich and poor Americans, which was wider in the United States during the 1980s than any other large industrialized country, according to a comprehensive OECD comissioned study of income distribution released last Oct (NYT:10/27/95);
• threaten "economic class warfare" now recognized on the horizon by commentators such as Meg Greenfield in the Washington Post (2/5), and Gary Chapman in the Los Angeles Times (2/22); and
• generate a seismic realignment in Presidential politics opening the door to nationalist exploitation of the discontent of workers, by Patrick J. Buchanan, even though Buchanan was denounced as "racist, anti-Semitic and opposed to the interests of workers," by labor leader, John J. Sweeney, president of the A.F.L.-C.I.O (NYT:2/22).

So what we have is a rigged and lopsided political process approved by the overwhelming majority of Democratic and Republican members of Congress, with the appalling product signed into law by a Democratic President. The Judicial Branch shows no signs that the Justices are ready to scuttle the First Amendment for political expediency, however, and Supreme Court watchers such as Linda Greehouse of The New York Times (2/22, at A18), indicate they appear likely to sustain First Amendment scrutiny with regard to indecency issues. Nevertheless, citizens should not try to make sense out of American governance. Arthur S. Miller, (late) Professor Emeritus of Law, George Washington University, observed, "We must accept the harsh truth that law is Thrasymachusian - the will of the stronger. It has always been so, although legal philosophers since Plato have argued to the contrary." [V. Schreibman, "The Rule of law as a Channel of Right or Power" 21 (2d ed., Amicas 1990)].

The outcome will, of course, be imposed upon the people without their informed consent, unless they decide to resist. This can be done in all the usual ways that citizens resist oppressive governments, first discussed in Colonial America by Tom Paine. The election of a new Government this year is, perhaps, an excellent process in which to assert such changes as may be convenient to the people. Librarians, school teachers, phone workers, and all the others being made into slaves by mega-corporate centers of power, should hold public officials responsible for the grand mess this country is in. Hopefully, a better set of representatives will be chosen this time.