INTERVIEW QUESTIONS OPERATING SYSTEMS INTERNET DETAILS

Question: What is the Communications Decency Act (CDA)?

Answer: The CDA criminalizes "indecent" speech on the Internet. One section of the CDA defines indecency as speech depicting or describing sexual or excretory acts or organs in a patently offensive fashion under conetmporary community standards. Each of these clauses--indecent, depicting or describing, patently offensive, and contemporary community standards--hides a landmine threatening the future of freedom of speech in this country.

* "Indecent"

"Indecency" is a vague standard long used to prosecute explicit, outspoken speech in the Western world (for example, Radcliffe Hall's pathbreaking but actually very restrained lesbian novel, The Well of Loneliness, was indecent because of the phrase, "And that night, they were not divided.") Indecency laws are completely unconstitutional as applied to print media, while broadcast spectrum scarcity has been used as a rationale to continue applying such laws to broadcast media. Indecency laws in general, the CDA in particular, contain absolutely no exception for speech with scientific, literary, artistic or political value.

* "Depicting or describing"

The word "describes" confirms that pure text can be illegal under the CDA. Courts in recent decades have tacitly acknowledged that sexually explicit text cannot be held illegal under obscenity laws. Books such as Henry Miller's Tropic of Cancer and James Joyce's Ulysses, which were held years ago to be significant literary works and not obscene, could fall prey to the broader, vaguer CDA language if posted online.

* "Sexual or excretory acts or functions"

While the reaction of some observers to this, the core of the CDA's prohibition, may be "So what?", pause for a second to imagine that you enter your neighborhood bookstore and wave a magic wand. Immediately, all books infringing this definition vanish from the shelves. The shelves are now half or two thirds empty! Not only trashy bestsellers, but 19th century classics such as Zola's La Terre and Flaubert's Madame Bovary, modern literature such as Joyce, Miller, Nabokov and Burroughs, nonfiction works on health, aids, rape, and sexual fulfillment, and even the Bible all vanish from the shelves! All serious human discourse sooner or later touches on earthy topics, as history, metaphor or information. Under the CDA, speech which is quite legal in a book or magazine should be banned from the Internet.

* "Patently offensive"

This wording, which the CDA picked up from the Supreme Court's so-called Miller standard of obscenity, allows a jury to decide that material is illegal based on how the jury feels about it. Patent offensiveness is an extremely subjective standard; coupled with the contemporary community standard provision, below, it is a recipe for disaster. In a case called Eckstein v. Melson, the owner of a bookstore was threatened with prosecution if she continued carrying obscene, patently offensive materials. But when she asked the prosecutor, the police and numerous other public officials to tell her what she was carrying which was "patently offensive" (FBI agents raiding her shop had seized novels by John Updike, among other materials) no-one would tell her. A "patent offensiveness" standard means that you engage in explicit speech at your own peril.

* Contemporary community standards

The 1973 Miller case on obscenity held that local communities could apply their own standards to determining whether material is obscene. This approach barely makes sense for works such as movies or magazines, which distributors can refrain from showing or selling in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas (known as the Amateur Action case) upheld the conviction of two California sysops under Tennessee standards. Their crime had been to place obscene material on their California BBS which offended the ncommunity of Memphis, Tennessee. This result, now codified by the CDA's use of the "community standards" wording, means that material placed on the Internet anywhere must satisfy the standards of every community that has Internet access anywhere in the U.S. In other words, the standards of the most conservative community now apply to the entire Internet.

The CDA criminalizes "indecent" speech on the Internet. One section of the CDA defines indecency as speech depicting or describing sexual or excretory acts or organs in a patently offensive fashion under conetmporary community standards. Each of these clauses--indecent, depicting or describing, patently offensive, and contemporary community standards--hides a landmine threatening the future of freedom of speech in this country.

* "Indecent"

"Indecency" is a vague standard long used to prosecute explicit, outspoken speech in the Western world (for example, Radcliffe Hall's pathbreaking but actually very restrained lesbian novel, The Well of Loneliness, was indecent because of the phrase, "And that night, they were not divided.") Indecency laws are completely unconstitutional as applied to print media, while broadcast spectrum scarcity has been used as a rationale to continue applying such laws to broadcast media. Indecency laws in general, the CDA in particular, contain absolutely no exception for speech with scientific, literary, artistic or political value.

* "Depicting or describing"

The word "describes" confirms that pure text can be illegal under the CDA. Courts in recent decades have tacitly acknowledged that sexually explicit text cannot be held illegal under obscenity laws. Books such as Henry Miller's Tropic of Cancer and James Joyce's Ulysses, which were held years ago to be significant literary works and not obscene, could fall prey to the broader, vaguer CDA language if posted online.

* "Sexual or excretory acts or functions"

While the reaction of some observers to this, the core of the CDA's prohibition, may be "So what?", pause for a second to imagine that you enter your neighborhood bookstore and wave a magic wand. Immediately, all books infringing this definition vanish from the shelves. The shelves are now half or two thirds empty! Not only trashy bestsellers, but 19th century classics such as Zola's La Terre and Flaubert's Madame Bovary, modern literature such as Joyce, Miller, Nabokov and Burroughs, nonfiction works on health, aids, rape, and sexual fulfillment, and even the Bible all vanish from the shelves! All serious human discourse sooner or later touches on earthy topics, as history, metaphor or information. Under the CDA, speech which is quite legal in a book or magazine should be banned from the Internet.

* "Patently offensive"

This wording, which the CDA picked up from the Supreme Court's so-called Miller standard of obscenity, allows a jury to decide that material is illegal based on how the jury feels about it. Patent offensiveness is an extremely subjective standard; coupled with the contemporary community standard provision, below, it is a recipe for disaster. In a case called Eckstein v. Melson, the owner of a bookstore was threatened with prosecution if she continued carrying obscene, patently offensive materials. But when she asked the prosecutor, the police and numerous other public officials to tell her what she was carrying which was "patently offensive" (FBI agents raiding her shop had seized novels by John Updike, among other materials) no-one would tell her. A "patent offensiveness" standard means that you engage in explicit speech at your own peril.

* Contemporary community standards

The 1973 Miller case on obscenity held that local communities could apply their own standards to determining whether material is obscene. This approach barely makes sense for works such as movies or magazines, which distributors can refrain from showing or selling in conservative jurisdictions. However, a 1994 case, U.S. v. Thomas (known as the Amateur Action case) upheld the conviction of two California sysops under Tennessee standards. Their crime had been to place obscene material on their California BBS which offended the ncommunity of Memphis, Tennessee. This result, now codified by the CDA's use of the "community standards" wording, means that material placed on the Internet anywhere must satisfy the standards of every community that has Internet access anywhere in the U.S. In other words, the standards of the most conservative community now apply to the entire Internet. Source: CoolInterview.com

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