Obscenity and the Internet: The Communications Decency Act

Yousuf Dhamee

One of the first attempts to regulate Internet activity is the Communications Decency Act. This act gives the Federal Communications Commission the authority to rule on what constitutes "obscene" internet material. This is the same branch of the government that currently regulates television and radio broadcasts in the United States. The first problem that any such regulatory group must always face involves how to decide (and legally define) what constitutes acceptable /obscene material. In this respect the discussion surrounding the Decency Act is no different from earlier debates centered around "controversial" texts like Ulysses or Tropic of Cancer. The nature of Internet technology, however, complicates the issue in a profound manner and raises new questions about how morality can or cannot be legislated.

At stake in these debates is the very definition the Internet. The manner in which this resource can be regulated depends on how the courts interpret the nature of the medium. If the Net functions as sort of press, freedom of on-line discussion is heavily protected by the US constitution. Anyone with access to a modem becomes his own editor and publisher. (Diamond) The Web can also be defined as a sort of public meeting place (where freedom of expression is guaranteed by law), with newsgroups or chat pages serving the function of a town green. In the past "private" institution with widespread public access have been treated as public forums for the purposes of legislation. (Diamond and Bates) The Decency Act, by contrast, attempts to pin down the Internet as a large, tangled mass of public transmissions, similar to radio/television broadcasts. A similar analogy could liken postings on an Internet page to advertisements on the side of a busy road. This complicates the traditional First Amendment defense that most controversial Web sites use when facing attacks. Renting a billboard does not give an advertiser free license to force any sort of material on the driving public. Of course, the difference between a billboard and a Network newsgroup/page is that a Net page does not force itself on a viewer. In order to access material of any kind on the Web an individual must seek out and "travel to" the site. In a sense the Net is more like a pay per view channel than a public television transmission. The final word on such matters will likely end up in the hands of judges and juries. The manner in which these institutions define the Internet will be of crucial importance in mapping out cyber-legislation.

Another legal battle that will have to play itself out in the courts involves assigning responsibility for the monitoring of cyberspace material. When "indecent" or libelous material appears on the Web, can servers like America Online or newsgroups be held responsible? Again, the debate boils down to how these institutions are legally defined. In the past there has not been a fixed method of dealing with this question. If a server is treated as a publisher, it may be held accountable for the material that its users post. On the other hand, if a server is defined as a resource center, like a bookstore or library, it is not responsible for the material its pages contain. Thus far it seems that not all servers are to be treated equally under the law. When Compuserve was sued in the fall of 1995 for material posted through its service, a judge ruled that the business was free from fault because it functioned as a distributor, more similar to a bookstore than a publisher. On the other hand, when a similar suit was brought against Prodigy, another on-line service, the defense that "the service is a passive carrier of information, like the telephone company," was rejected. The jury ruled that Prodigy functioned like a publisher and was thus accountable for the material it posted. The reason for the two markedly different rulings centers on the manner in which each company has presented itself to the public. Prodigy has consistently advertised itself as a family-oriented service, which seeks to shield its viewers from offensive material. In doing so Prodigy set itself up as an editor, at least in the eyes of the court. For this reason it was treated like a newspaper or magazine. Compuserve, on the other hand, has never made any such claims and is thus considered free from the responsibility of monitoring its users output.