Monday, June 26, 2000

Week of 06/26/2000

Net Censorship: They Still Don’t Get It
- by David Matthews 2

"As a matter of constitutional tradition.. we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." - Supreme Court Justice John Paul Stevens, ACLU Vs Reno, 1997

It’s hard to imagine that it has been four years almost to the day since the courts rendered their verdicts against the US government from censoring speech on the Internet. Three years almost to the day when the US Supreme Court rendered their 7-2 decision that gave the Internet the fullest protection of the First Amendment. Three years after Justice John Paul Stevens issued the majority ruling that told Congress they have no authority to dictate content online.

Three years after all of that, the appeals process is once again issuing rulings concerning Internet censorship, and once again reminding members of Congress of what the highest court in the land has already said on that very same issue.

Of course, I’m talking about the Child Online Protection Act, otherwise known as COPA or CDA 2.0. The anti-American law was passed by Congress and signed by President Clinton as part of a huge omnibus spending bill in 1998. Much like its anti-American predecessor, the Communications Decency Act, COPA would force online providers to put any material deemed "harmful to minors" in some kind of credit card-based age-verification service. The only differences between COPA and the CDA being a lesser criminal penalty, and a much broader notion of what is "harmful to minors" instead of the indefinable "indecent" category. But however you soft-pedal the language, their end results are identical: the censoring of all speech online to what is "safe" for children.

Of course, the moralists and members of government all claimed that they would only use that law for the most "extreme" of websites. You know the ones.. the ones that ALREADY operate on credit-card based age-verification services because they can make money off of them. But that law, as it was WRITTEN, would be applied to ALL websites, subjecting them to the standards of the most conservative of communities and the most zealous of prosecutors. That was why a federal judge and a three-judge appeals court all unanimously agreed with the plaintiffs and said that COPA was blatantly unconstitutional.

I sometimes wonder just why the members of Congress even bother with trying to censor speech online. Why do they continue to break their oath of office and violate the First Amendment like speeders on Georgia 400? Why, after being told time and time again by the judicial system that they CANNOT pass laws that regulate Constitutionally-protected speech, they rewrite that same unconstitutional and anti-American law under a different name?

It’s not that they don’t understand the issues. Three years ago, that may have been the case, but not today. The judicial decisions were very specific about how the Internet worked and explained how the Internet was an end-user medium. Certainly members of Congress, who create the most complex and anally-retentive tax laws, could understand just how the Internet works and why their measures are wrong.

That’s what was frustrating for me. It’s not like we’re talking about a group of idiots here. Aside from certain longtime members of Congress who suffer either from senility or brain rot, we’re talking about some fairly educated and intellectual people. People who should know that what they are doing is wrong.

Then the answer came to me. It is not that they don’t understand that what they are doing is wrong, unconstitutional, and very much anti-American. They just don’t get it.

That is perhaps the ultimate irony of the whole system of government in America. Here we have over five hundred elected members of Congress, as well as the President and Vice-President of the United States. Men and women who are well-versed in the issues of law and government, some of whom have even served in the defense of their country. People who have taken a solemn oath as required of their job to protect and defend the Constitution, yet they lack one single and solitary clue as to WHAT the Constitution is designed for!

Perhaps they suffer from the literary version of farsightedness.. they can understand long and complicated terminology but they cannot understand something as simple as "Congress shall make no law..". After all, we have a president who supposedly taught constitutional law, yet he actually had to ask what the definition of "is" is.

Or perhaps they are freedom-blind, much like people can be color-blind. Maybe just like some people can’t see the color red, our elected officials just cannot see the freedom clauses in the Constitution.

Or perhaps those well-educated members of Congress are simply puppets to their special interest masters, the groups who contribute millions of dollars to their campaign war chests. Groups that have a vested interest in subverting the Constitution so they can spread their influence and power over others. Groups like the Christian Coalition, who wrongly believe that America is not only a Christian nation, but one that follows THEIR vision of Christianity.

Or perhaps we can get brutally honest and admit that we have elected officials who push for these anti-American laws because they ARE addicted to power and who DON’T care about the Constitution, and will do EVERYTHING in their power to subvert the very document they take an oath to protect and defend. Men and women who DO have an ulterior motive, one that is contrary to the very things America is supposed to represent, and the only thing that is in their way are a handful of judges and the US Constitution.

But if the elected officials just don’t get it, they are not alone in their cluelessness.

Members of the media have also been playing willing pawns to the censor-happy members of government, and I’m not just talking about the more traditional members of the media like NBC, ABC, CBS, and CNN. I’m sad to say that even the newer Internet-based members of the media have also bought into the shrill line of the moralists and power-mad members of Congress hook, line, and sinker.

Perhaps the most shocking of headlines about this issue came from the folks at Wired magazine, one of the original critics of online censorship and one of the fellow plaintiffs in the lawsuit against the Communications Decency Act.

The headline from shows their betrayal: "Court Says Anti-Smut Law Illegal: Pornophiles, rejoice! The Internet is once again safe for smut."

Three years ago, their headline would have been "Three Judge Panel Declares COPA Unconstitutional!" Maybe they forgot that COPA would have also been used to censor their own publication just like the CDA would have. Now that their website is owned by Lycos, Wired News has started to act like the very media establishment they once criticized.

Here’s one from the conservative World Net Daily: "Judges rule anti-smut law illegal"

Uh, excuse me guys, but did you realize that the law would have affected more than just what you deem to be "smut"? It would have also affected your coverage of the Clinton-Lewinsky affair, as well as your coverage of any more of Clinton’s past "liaisons". Are you prepared to put that kind of news through a credit-card based age-verification service to comply with the law? I didn't think so.

And don’t think that this bias is just limited to US publications. Here’s one from the London Register: "Kiddie smut law shot down again"

Maybe that should be expected from a country whose favorite motto is "No sex please, we’re British", but in their zeal to slam the blokes from across the pond, they made a slight error in that headline. "Kiddie smut".. as they call it.. is child porn. That’s been illegal, and that’s NOT what COPA was designed to outlaw. If it were, it would not be challenged so vigorously by so many groups.

Perhaps the most journalistically accurate of articles on this subject came from the folks at Ziff-Davis, which said that: "Efforts by Congress to regulate the Internet were dealt another blow when a federal appeals court ruled the COPA law unconstitutional."

Accurate and honest. This was not an attempt to "protect children", but rather to regulate content on the Internet.

But even there, the folks at ZDNN made one factual mistake: "Members of Congress had hoped the law would succeed where its predecessor, the Communications Decency Act, failed. That earlier piece of legislation, which had sought to prevent all Internet users from distributing pornography to minors, was struck down in 1997 by the U.S. Supreme Court."

Nice try, but not quite. The CDA was a blanket ban on anything deemed "indecent", a term never defined by law, and only once by the Federal Communications Commission for a completely different medium. Nor did "all Internet users" distribute pornography to minors, as ZDNN inferred. That kind of blanket condemnation of all Internet users is almost as insulting as the CDA itself.

What it all boils down to, once again, is this asinine belief of some people that it is the government’s job of protecting kids from accessing "inappropriate" things on the Internet.

Okay everyone.. listen very carefully. Matter of fact, get a pen and paper and write this down. Ready?


The role of monitoring what sites kids go to rests with THE PARENTS, not government. Read the Supreme Court decision, at least they got it for once.

You know, state and local governments have a hard enough time going after the criminals who prey on kids via the Internet. Those sick and twisted people who consciously target kids for their own equally sick purposes have no protection from those of us who defend the First Amendment, nor should they expect any. But parents need to realize that the online world is no different than the real one. It has a variety of sights and sounds, not all of them designed for kids. That variety comes from the fruits of freedom. If parents cannot grasp that notion, then they had might as well cancel their ISP service right now and stick to the controlled cyber-world that comes from a CD-ROM and DVD.

Federal Appeals Court Judge Leonard Garth had it right when he said "Sometimes we must make decisions that we do not like. We make them because they are right, right in a sense that the law and the Constitution, as we see them, compel the result." Sound advice, and certainly one that should be given to the censorship-happy special interest groups and power-mad members of Congress.

Those of us who enjoy the fruits of freedom need to remember that it does come with a price. It is a price of eternal vigilance, and it is a price of understanding that all voices must be heard, not just those deemed to be "mainstream" or "safe." The minute we start pruning those voices away in the name of "safety" is when ALL voices, mainstream or not, are in danger.

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