Updated February 6, 1996 by Rebecca L. Eisenberg
Hello, and welcome to
This week's topic: telecommunications decency: whatever. Dated February 6. 1996.
finally diving in ... partly since i am a fucking lawyer (emphasis on both,
of course) who has myself lived in the beltway, worked for the aclu, and
even (special bonus!) published several articles on first amendment
freedoms and porgography,... and even more because i am startled and
surprised to hear some intelligent commentary on this debate ...
i do agree with much, but not all, of the attached letter. especially the
part about "preaching to the converted." i also want to premise this by
saying that, personally, there is hardly anything i value more than the
right to speak in order to communicate. hell, i gave up an entire spring
vacation in law school just for the ability to have the word "fuck" used in
an article published on critical feminist thought. with that being said
...
first, i don't think that we *have* lost the "battle", much less the "war"
for freedom of expression. i also think that that is a battle that is
always worth waging, as long as it is done in a thoughtful, rather than
knee-jerk, fashion. i have been less than underwhelmed by the level of
debate on this issue -- in particular the lack of debate altogether.
publications like wired and hotwired merely preach, without any discussion
about the meaning and purpose of some regulation. i tend to think that
there are usually (but not always) "two sides" to most issues. there
certainly is more than just one side to the current issue, even while
disregarding all of the right-wing fascist drivel.
still, it is clear to me, at least, that much of the proposed regulations
will *not* withstand judicial scrutiny.
i happen to think that better analogies to radio and television are
available. for example, in some respects, the internet is like the u.s.
post office, but with even less government involvement. the government,
for the most part, cannot regulate what we write in private letters, except
to the extent that the mail is harassing or threatening, or meets a few
other narrowly tailored exceptions. i see no reason why a person has a
genuine interest in harassing or threatening another person, while, at the
same time, such letters can cause significant stress and fear on the part
of the recipient, so those laws make sense to me.
i am not sure how much the government is involved in the internet, but it
seems to be nominal. for example, if the government shut down the usenet,
couldn't it just pop up, in its entirety, on another node? to the extent
that the internet is available on private channels, i just don't understand
how the government could touch it. compare: the publication of print
medium, photography, records, art.
second, for better or for worse, there is very little "freedom" when it
comes to any kind of "obscene" speech. further attempts to regulate what
the government considers obscene are nothing new. while i disagree with
the basis of the current doctrine of obscenity, i cannot deny that it
exists. and, how many of us really want to take a stand in favor of the
distribution of child pornography or (the infamously cliche example) to
shout "fire" in a movie theater?
under current obscenity doctrine, material is obscene (and unprotected by
the whole force of the first amendment) if it meets the following test: if
an "average person applying contemporary community standards" would find
that the work as a whole appealed to the "prurient interest", if the work
depicted sexual conduct in a "patently offensive way", and if the work
"taken as a whole lacks serious literary, artistic, political, or
scientific value." (it's called the Roth-Miller test, if you care). the
test does not apply in many mediums, and applies in greater force in
others. i happen to think it is a stupid test, but hey, i hated the law
enough to leave practice altogether. it seems to me that the definition of
the medium is going to be the most important part of any discussion of or
challenges to, the current regulation.
the whole "abortion issue" debate strikes me as ridiculous, for all of the
reasons already mentioned. e.g. is the government really going to prohibit
distribution of legal analyses of roe v. wade via internet? are they going
to shut down the u.s. court's cc:Mail system where judges and law clerks
often discuss legal issues surrounding abortion, obscenity, and other
materials covered by this act? just about every federal court system is
now on line -- are they really going to shut that down? the courts have
done stupider things in the past, but one thing i learned from my
experience there, is that they are very unlikely to enforce regulation that
limits *their own* freedom freedom and power. and yes, you can quote me on
that one.
third, it must remember that this is an untested medium. just like the
legal issues surrounding offensive rap lyrics, and sampling of rap music,
there are no direct precedents to draw from. in these instances, courts
tend to draw from analogies that are most accessible to them. judges are
often old, and not too good about learning new technologies. (sometime
when you are bored, i can try to describe the countless hours i spent
explaining to former judge-employers what it means to store information on
a floppy, just to name one example!). remember, the government wasn't even
able to wage a coherent battle against bill gates when the law was clearly,
technically, against him. in these instances, it usually tends to be the
better lawyers -- e.g. the ones that can translate new technology to easily
accessible terms -- that win. hopefully, that will be in this case "us"
... since it the prospect of it being the government, given their computer
literacy, strikes me as very low.
one thing is more than clear, though. judges and law clerks, who are the
individuals who are going to be deciding the constitutionality of the law
once it is enacted, don't give a damn about who is picketing in the
streets. federal judges are not elected and, for the most part, care about
no consitutuency beyond the few execs who have the power to elevate them to
a higher court. protest is always useful, i believe, but it is also nice
to know who has the power to make the changes you seek via the protest.
finally, and most importantly, at least to me, is my frustration with the
lack of perspective with which the anti-net-censorship zealots are
displaying with their driving cause. only a small percentage of people in
this country can even access the net (remember, more than one half of the
world's population has ever even used a phone!), and those who can access
the internet are among the wealthiest and most privileged and educated in
our society -- i.e. the group of individuals who already *have* the most
freedom. (soapbox warning: alert!) those people who *really* want to take
a stand on freedom have many issues to support that affect far more people
--- aids, educational equity and opportunity, homelessness, lack of health
care, all the 'isms (racism, sexism, heterosexism, etc), ad nauseam. there
are so many battles to fight ... this one, which will, at least for now,
affect only the "elite", leaves a bad taste in my mouth, even though i
value internet freedom dearly. let's face it, speech *is* powerful --
that's why we fight for our right to use it ... it can create new
landscapes and build new worlds, but it also can harass, degrade,
threaten,debase, and slander. instead of group posts of calls for
"freedom," i myself would like to see a group call for civility,
creativity, thoughtful debate, and perspective.
okay, i admit, i *never* thought that this would pass. i now eat my words.
and, if i have to, i will be jailed or fined for my words too (as long as
i get to take my powerbook in there with me!). hell, i've been fired for
my words before ...
my recommendation as to people who want to go protest this action in the
streets, is instead to go put some intelligent content on the net. i'm not
talking about pages that just say "fuck fuck fuck" or "abortion abortion
abortion" over and over again, but rather, something useful and
interesting, silly, creative, angry, intelligent. then, when this matter
is brought to court, at least we will have something of value to point to
when we defend our treasured Right to Write.
just my two cents. more fun than packing.
rebecca
To read last month's Rant, the infamous ice-T story
click here.
Copyright 1995, 1996 Rebecca Eisenberg mars@bossanova.com
X-Sender: rebecca@mail.cyborganic.com
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Date: Tue, 6 Feb 1996 18:47:13 -0600
To: John Shiple
At 2:13 PM 2/6/96, John Shiple wrote:
>Jeff B. says you may forward this as you see fit...please leave it intact
>though..
>
>-=John
>
>
>------------V
>
>Date: Tue, 06 Feb 1996 13:49:04 -0800
>From: Jeff Burchell
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