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Indecent Legislation: The Communications Decency Act

The "Intolerable Acts." The Eighteenth Amendment. The national 55 MPH speed limit. Even a cursory discussion of these laws in history reveals an unswerving American tendency: when laws are passed that do not reflect the will of the people, the people will ignore the law...or worse. However well-intentioned the people behind the legislation may be, the result is a devaluation of the rule of law. History is about to repeat itself with the "Communications Decency Act" proposed by Senator Exon.

As I like to say, the word of law is the epitaph of common sense. Common sense dictates that driving fast through a school zone when the lights are flashing is unwise. The utter lack of common sense displayed by motorists lobotomized by that four-word phrase, "I'm late for work," has resulted in ever-stiffer legislation and fines for those who are caught. And still children are taking their lives in their hands when they cross the street. It may not end until crossing guards are given antitank missiles to deal with the truly dense.

There are situations that make sense to legislate. Certain acts are obviously wrong. When life, liberty and property of citizens is threatened by other citizens, laws are passed. Murder is declared illegal, as is theft. The infinite creativity of the human mind virtually guarantees that new variations of atrocities will be committed daily, and the more heinous varieties are declared taboo, and penalties assigned to those who are caught and convicted of committing them.

There are certain classes of crime that almost nobody (at least, nobody who matters) would consider acceptable in society. Murder, theft, slavery, Cop Rock--pick your own favorites. There is another class of acts where "crime is in the eye of the beholder," where no clear consensus exists on whether they should be proscribed against. Acts in this category: abortion, capital punishment, prayer in schools, and Married With Children. Feelings run strong and deep on both sides of these issues. Its practice offends some people so deeply that they demand that laws be passed to make them illegal. Others will fight just as hard to keep them, or make them, legal. These culture wars have divided this country to the point of bloodshed unseen since the days leading to the Civil War.

This shouldn't surprise anyone. No matter the reason or intentions behind the attempt, we tend to respond if we think our rights are in jeopardy. We fought the war in the Persian Gulf to restore the government of Kuwait, but we also heard the widespread opinion, "I'd rather kill than car pool." Sure, we can be selfish jerks as a nation sometimes, but we do it out of respect for our Founding Fathers, who wrested this great land from England because they upped the price of tea. Just try to get a good cup of tea at Starbucks these days; this country has been on a 200 year coffee binge ever since Boston Harbor got its first taste of the Lipton Valdez.

When the Dred Scott decision made anti-slavery laws unconstitutional, there were political repercussions in the north, which led to military repercussions in the south, and the bloodiest war ever fought on American soil. When the law is used as a moral bludgeon, the citizenry rebels.

Prohibition against alcohol consumption, made official with the Eighteenth Amendment to the US Constitution, was lobbied for hard by those who felt that liquor was a threat to America. What happened? American ingenuity expressed itself in myriad ways; speakeasies, bathtub gin, "wine bricks" with detailed instructions not to follow lest you end up with a proscribed (yet tasty) substance, and a general contempt for that law until it was repealed by the Twentieth Amendment. Concern for widespread alcohol abuse is justified, but the solution did not end drinking. Rather, it turned otherwise law-abiding citizens into scoff-laws. And it turned that illegal substance into a profitable venture for organized crime.

The energy crisis of the early 1970's led to the national 55 mph speed limit. However, nothing is more American than the automobile and the interstate. Perhaps it made sense in the Beltway and the crowded eastern states to reduce the speed limit, but anyone who's driven from Los Angeles to Salt Lake City, Utah, or across Kansas or Texas, knows that driving 55 miles per hour on roads that sometimes see more than 55 miles between cities is a test of patience even Job could not likely have passed.

This all has a point, I promise.

With the "Communications Decency Act of 1996," an attempt is being made to legislate morality through electronic media--telephone, fax, and the Internet in particular. There is no question that there is disgusting crap in cyberspace that has something to offend just about everyone. I guarantee that there is something to offend even those who are offending everyone else. It may be "pornography." It may be "hate speech." It may be crass commercialism. It may be bad poetry, a picture of Mentos, or a JPEG of a face only a mother could love. The proliferation of "worst of the Web" lists attests to the pervasiveness of bad taste in cyberspace.

Obviously, some of this stuff is several cuts below the rest. Hard-core pornography involving torture, pedophilia, bestiality, and the like is hard for anyone to defend. What once required a midnight trip in a trenchcoat to the back room of a seedy dive with quarter booths and plain brown wrappers, can now be as close as typing "" in your web browser. You ask for it, you get it. The server doesn't ask for your age, or may do little more than rely on the honor system. An honor system that means little to a hormonally carbonated teenager eager to peek under the virtual blouse.

What is obscenity? A supreme court justice once said, "I can't define it, but I know it when I see it." There are those who would consider this rant offensive, if not obscene; I refer to hormones and nekkid people. And Married With Children, with all the mental imagery that carries. Have I committed a crime?

Technically, under the Exon bill, it's possible.

I believe the best censorship to be self-censorship, and the best regulation to be self-regulation. The Internet, though it is a wild frontier with plenty of elements reprehensible to civilized society, is also remarkably self-regulating. When someone posts a message deemed out of line, he is "flamed" and "mailbombed" until he or his provider pulls the plug on his evil ways. The Mob Mentality can be crueler than any high-minded senator; a perpetrator could consider himself a martyr to the cause of freedom by being fined or jailed under a nebulous and unpopular law, but when the people who feel as you do about electronic freedom turn your account into an inferno of ill will because you offended them online, you think twice before repeating yourself. Ten thousand messages in your in-box, each telling you in painful detail what a moron you are, is worse than anything Senator Exon can inflict. And more effective.

What's wrong with the Exon Bill? One is obvious: it's too easy to get around. Unless every nation on earth agreed to it, the global Internet community provides back doors to those countries that don't ban the same material. The former Soviet Union discovered the power of the CPU when the attempt to depose Gorbachev led to their eventual failure--there were too many ways to pass information around. Evn the United States could not prevent Iraqi access to information during the Gulf War; the Information Superhighway, like the Interstate Highway, makes all sorts of alternative routes possible. If smut is made illegal in the United States, just (web sites have been changed to protect the perpetrators, and because I don't know any of those sites anyway) to read it directly from some other country. Where there's a will, there's a way.

Shutting down an internet provider just because someone on it does something stupid is like shutting down a public park just because drug deals are conducted there. Or impounding all cars on a stretch of highway because one car is speeding. It's swatting a fly with a thermonuclear warhead; the collateral damage is too severe. The more we rely on electronic communications, the more severe the impact, both economic and psychological, when those communications are interrupted.

Should pedophiles who use America Online to prey on minors be punished to the full extent of the law? Damn straight. But should America Online be fined or shut down because they gave the pedophile the account in the first place? No way. If an internet provider caters exclusively to pedophiles, that's a different matter entirely. But handle them the way child pornographers using other methods are handled. The law should tackle the actual crime, not the media through which it was conducted. If you catch an obscene phone caller, you arrest the person doing the panting; you don't shut down AT&T.

To quote Joe Bob Briggs, "I'm surprised I have to explain this."

Most of the people asking for this mean well. They are concerned for the "impressionable children" and weak-willed perverts-in-training who can now access, or make accessible, unthinkably evil material with the push of a button. I've run into some of this by accident. I've been the victim of "false advertising," wherein I thought I was going to Blues music and ended up going to Blue movies. When you encounter this material, you have several choices. You can move on without comment. You can send a message to the person who posted the information expressing your displeasure. You can send that complaint message to the "webmaster." If you have blocking software (now becoming increasingly available) you can add it to your "V chip" list so you can't access it by accident. You can sign up for, or create, your own internet provider that includes such software, so many of these sites are Scramble-Visioned before you have a chance to find them.

You can have cable TV without subscribing to the channels that feature material you find offensive. You can buy televisions with parental lockout features so you can watch those channels but keep the tykes from doing the same. You can tell the phone company to make 976 or 1-900 calls unavailable from your phones. In short, you can dramatically limit the chances of accidental or incidental exposure to the naughty bits. But the only way to keep your kids from learning the facts of life from*, if they are determined to do so, is to kill them. And that's really against the law.

I understand and appreciate the desire to protect kids from the things we feel they shouldn't be exposed to. We can't watch them 24 hours a day, 7 days a week, every day for the rest of their lives. Though some do try, and the news is full of the repurcussions from those upbringings. We need to educate our kids, instill in them as best we can to judge for themselves what is good and what is bad. They're going to do what they want with their lives eventually, and there's no way to stop them from doing so.

The most powerful influence a parent or guardian or instructor can wield in a child's life is to have that child's respect, and an open line of communication. I am not comfortable entrusting the decisions of child rearing to the government. Let them build roads, let me decide what my kids can watch on television. I do not much value the opinion of those who want the government to get smut out of cyberspace because they can't watch their kids 24 hours a day; it tells me that they don't trust their kids, or their own parenting skills. And since I don't trust the government to legislate morality or community standards, I refuse to sit still while books are virtually burned in a data bonfire in the name of "decency."

The development of the printing press may have enabled hack writers to make a fortune while churning out literary dungheaps, it also helped forge nations, establish freedoms, and spread literacy and preserve great ideas from throughout history, throughout the world. The camera has resulted in video swill, and images that have touched hearts profoundly. Electronic communications have made smut readily available, yet has also toppled tyrannical regimes and reduced this great big planet into a very small world indeed. They are media only, moral neutrals.

The Internet doesn't offend people. People offend people.

One overused cliche tells us that "ninety percent of everything is crud." My feeling is, if a law is broken, attack the lawbreaker. There are plenty of laws already established in this country concerning certain types of crime; if they are committed on the Internet, it is no different than had they been committed in person, or through the mail.

Mine is just one opinion. There are others who have presented arguments against the Exon bill's legitimacy and impact far more eloquently than I can. I'm sure there are proponents of the bill who could tear apart my arguments--such as they are--with little difficulty. I welcome both. But I would remind you that the right to do so, to agree or disagree, with cool logic or a profane rant, is threatened by this bill. That's the true crime at the heart of this issue, and many others facing us today--"ours is the only right opinion, and anyone who says otherwise should be silenced to the full extent of the law."

When talk is outlawed, only outlaws will talk. And Americans are a terminally chatty bunch. Unless you want to see the Boston Web Party, with loyal Americans dressed like Dilbert and dumping anatomically-correct Jell-O mold recipes onto their web pages in protest of the Communications Decency Act, you will consider the full ramifications of the current drive to regulate the world's flow of information (and cyber-dookie) based on the standards of people who, however firmly they believe in this bill, are primarily on the lookout for votes and/or financing. Saying you're against "smut" is like saying you're against "illness." It's hardly going out on a limb, but the proposals designed to combat it can easily become worse than the malady itself.

Nobody's perfect. There are those in society who are certifiable dregs, who deserve to be locked up and/or executed for the crimes they commit against society. We have the right to protect ourselves. But we must decide whether we need a law, or we simply want a law because we don't feel like taking some responsibility for ourselves. The government has no right to guarantee us that we'll never be offended, or hurt, or unhappy. It's an impossible goal.

Freedom means responsibility. It also means the right to fail. Failure is not pleasant, but it is often integral to learning and growth. We should not fear failure, or disappointment, or frustration. And we certainly should not attempt to legislate success, or legislate against failure. Most people see through the good intentions behind such a law, and will act on their own instincts. If the speed limit is too low to make sense, we'll speed, and the police will likely not even bother ticketing people driving a "reasonable" speed even if it's over the posted limit. When the public at large refuses to obey a law and law enforcement refuses to enforce a law, that law is invalid, and actually harms society because it diminishes the esteem for law. When law has no power, society is in danger until the law is changed.

If you want to change society, educate them. If you don't want to educate society because it would jeopardize the changes you want, then give it up now; your attempts are doomed to failure. When it comes to indecency on the Internet, consider this: In this century, we have conquered the law of gravity to make air travel almost routine, and we put a man on the moon. We split the atom to make weapons of war and sources of energy that power entire countries. We have designed and built machines that can process billions of operations each second, that can sit on a desk and can be purchased at Wal-mart with a piece of plastic, the worth of which is also determined by computer. Many poor people live better than royalty did a few centuries ago. The human mind has devised and implemented ideas, philosophies, and products that have revolutionized life as we know it. Do you honestly think that we can say "this is a no-no" and get the whole world--or even the whole country--to stop merely on our say-so?

There are generally five ways to react to the passage of a law. Let's use the 55 MPH speed limit as an example. There are those who will drive 55 or less, because they never wanted to drive faster than 55 anyway. There are those who will drive 55 or less only because the law says so. There are those who will drive 55 or less because they are afraid of getting caught going faster. There are those who will drive over 55 because they think 55 is a stupid limit, and feel a higher speed is reasonable. And there are those who will go over 55 only because it's illegal, and they resent being told what to do, though given any choice of speed they would normally drive 55 or less.

In short, people will obey (or disobey) a law either because it doesn't impact their natural inclinations, or because it does. The fifth group obeys the law only because they fear the punishment if caught. The problem with some laws is, you risk creating a new breed of scofflaws who break the law precisely because it has been declared illegal, because they see it as a violation of their inalienable rights. By attempting to legislate something that ought not be legislated, you create opposition you wouldn't have had if you'd attacked the real problem in a different way. You may end up creating greater civil disturbance than your law was intended to reduce.

Enough. My message is probably obscured in a waterfall of excess, but I hope you managed to grab enough of a drink to come away with something useful. The Internet is filled with those who feel the dangers inherent in the Exon Bill, and who have made their arguments from a variety of fronts. If you're still interested, jump to Yahoo and do a search on "decency." I realize that if you're reading this you're probably one of the converted. So be it. Tell a friend. Email your congressman. Fax your nekkid buttocks to the editor of your local paper, being sure your cheeks are double-spaced and your name appears legibly in the upper-left corner. Get a tattoo with the First Amendment surrounded by a battleship or a topless mermaid. Call Larry King and tell him it was all Nicole's fault. Do whatever you want...but be willing, and prepared, to accept the consequences of your actions. If you want all the fun and none of the repurcussions, you're living in the wrong dang country. The Founding Fathers bucked British law, and they had to create a new nation and fight a war to get away with it. As Ben Franklin said, "we must hang together, or we shall all hang separately." (I use that quote a lot, because I think it's a cool sentiment.)

Sheesh. Rant Boy has been getting wordy lately. I hope you won't support the Communications Decency Act just to shut me up. If you think I'm full of it, tell me. I'm much more likely to respond nicely if you come to me personally than if the BATF breaks down my door to confiscate my keyboard.

I shouldn't have to explain this.

For more information, click here, or here, or here. Fight the power.

Last Updated: May 3, 1996
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