Speech restrictions on net appear likely

By Fred W. Weingarten
CRA Staff

Should a print or broadcast model be applied to communication on the Internet in terms of government restrictions on speech? The answer to that question, long debated in theory among the policy buffs in the computer community, is evidently clear to Congress.

At press time, debate over the telecommunications deregulation bill was moving toward final reconciliation between the House and Senate. Although the final conclusive vote had not been taken, actions by House conferees made it likely that the final version of the bill would contain criminal sanctions against "indecent" speech on the net that are much more stringent than for print and, because of the nature of the net, could have far greater impact.

Last fall, Sen. James Exon (D-NE) attached an amendment to the Telecommunications and Deregulation Act of 1995, S 652. This amendment was a version of a bill he had been promoting to ensure decency on the net. The Exon amendment, as it came to be known, made it a federal criminal offense to knowingly make indecent material available on the net. The amendment was added in a full committee markup of the telecommunications bill without benefit of hearings and with little discussion among committee members who were focused on a complex bill that was intended to completely revise telecommunications regulation.

If the Internet community did not take Exon seriously before then, the 85-14 vote in favor of the amendment on the Senate floor in June certainly got their attention. It was too late for Senate action, but the House seemed more promising, given that several influential Republicans had libertarian leanings. Shortly after the Senate vote, the Cato Institute, a conservative think tank, issued a report that labeled the Exon amendment "New Age Comstockery." House Speaker Newt Gingrich, shortly thereafter said that such restrictions were "clearly a violation of free speech and a violation of the rights of adults to communicate with one another."

Nevertheless, the House had to do more than just oppose Exon. Politically, it had to advance its own solution in its bill, HR 1555. It voted overwhelmingly for an amendment offered by Christopher Cox (R-CA) and Ron Wyden (D-OR). This amendment contained no criminal sanctions or new laws regarding freedom of speech. Cox and Wyden encouraged the private sector to develop techniques to allow users to filter information. This would shield information service providers from any liability resulting from labeling or filtering.

The House action did not please all Republicans. Henry Hyde (R-IL), a 20-year member of the House, and chair of the House Judiciary Committee, began circulating a bill he called the Cyberspace Cleanup Act of 1995. In October, a coalition of groups sent a letter signed by such recognized conservatives as former Attorney General Ed Meese, Ralph Reed (executive director of the Christian Coalition), Phyllis Schlafly and Paul Weyrich. The letter proposed even tougher language, specifically ruling out defenses for access and service providers, saying they should be held fully liable for material distributed on their systems.

In the fall, Rep. Rick White, a conservative Republican freshman from the Seattle area and a member of the House Commerce Subcommittee on Telecommunications and Finance, attempted to craft a compromise for the House to bring to the House and Senate conference. Given the pressures, the assumption in the House was that substituting the Cox-Wyden amendment for the Exon amendment would be a losing proposition. Some form of criminal sanctions would have to be in the final bill.

White, who has Microsoft and Nintendo in his district, began working with industry and public interest groups to draft an acceptable compromise. Some civil liberties groups took the position that any extension of speech crime beyond that already on the books was simply unacceptable, and saw nothing to discuss.

On December 1, with a meeting of the House conferees drawing near, a "final offer" compromise was circulated to the computing community. Much to White's dismay, the informal coalition he was dealing with split deeply in its response, with industry buying off on it and higher education and the library associations holding back support. Of the many changes White had made, three were key.

1. He substituted a "harmful to minors" standard for the terms "indecency" and "obscenity" that appeared in other versions.

This term has found legal acceptance as a legitimate exception to the First Amendment ban on regulation of speech. However, courts have made it clear that it may not be implemented in such a way as to indirectly force adult speech to be held to a harmful-to-minors standard.

2. He substituted "transmit for purposes of display" for "makes available."

3. He strengthened the defenses section to exempt those who are just providing connections.

White characterized his proposal as better than the alternatives, including the Hyde amendment. This was understandable in that the tightened language seemed to make the bill acceptable to industry. The problems universities and libraries had were more serious and, despite being accused of being "purists" and "absolutists," these organizations had some justification in making their objections.

For example, the language still seemed to require universities to segregate their students into two groups: those under 18 years old and those over 18. They had to ensure that net access available to those under 18 was filtered to a harmful-to-minors standard. The "display" language seemed to say that terminals for adults could not be located in public space where a minor might walk by and see what was on a screen.

Libraries moving to digital formats for their research holdings would have to label those deemed by legal definitions to be "harmful" or perhaps even keep them off the net altogether. For university libraries, the idea of labeling material and screening legitimate holdings for purposes of restricting access is antithetical to their role on campus.

These concerns posed a dilemma for higher education. Should it support the White language as the best alternative in the real world of politics, as White himself argued in a net posting? Should it oppose the amendment or simply withhold support for any of the amendments? For a variety of reasons, the higher-education community chose the latter course.

What happened on December 6, when House conferees met to choose an alternative to the Senate bill, was classic Congress. Much to everyone's surprise, the White amendment passed even though a few days earlier White had been branded a pornographer by the family values groups for attempting to compromise. So far so good, at least for the White supporters.

Then, according to one report, one member of the committee decided the amendment could be improved if they substituted "indecency" for "harmful." That amendment passed by a 16-15 vote, and in one stroke undid most of the good work White had done in trying to craft an acceptable compromise. Furthermore, the change passed because of the favorable votes of two liberal Democrats on the committee.

As it stands as of this writing, either the Exon or the White proposal (as amended) will be part of the telecommunications bill. Opponents of the measure hope for one of two things to happen:

First, the telecommunications bill could fail to become law either because it dies in conference or because President Clinton vetoes it. Most observers would not expect the president to veto the bill simply because it contains Exon-like language, but other parts of the bill also cause the administration heartburn. So neither failure nor veto is a totally vain hope.

Second, civil liberties groups will immediately challenge the law in court and, they hope, get a court to set aside that portion until later rulings at the appellate or Supreme Court level. One member of the conference committee, expressing resignation and frustration, reportedly said to a public interest observer, "Start preparing your briefs."

In the long run, however, the issue is not going away. Some friends of Internet free speech have nonetheless likened the existence of "objectionable" material on the Web to the nuclear waste and safety issue in nuclear power. Right or wrong, it creates a clear and worrisome negative image for the public to rally around to attack information technology.