logo

CongressLine - Congress Struggles with Cybersmut

By Carol M. Morrissey, Published on February 7, 2006

Carol M. Morrissey has been the Legislative Specialist for the Washington, D. C. office of Chicago's Sidley & Austin for 11 years. She is a lawyer and legislative expert who has also authored a Congressional update column for the last 4 years.


The legislation of morality in America has a long, and some would say, sordid, history. We are the country that instituted - and then repealed - prohibition. We are the country where some schools will not allow their students to read "Catcher in the Rye," but your local 7-11 store sells Playboy and Hustler. America is and has always been a country of immense contradictions - cherishing its Rights and policing them all in the same breath. Now we are grappling with the issue of "cybersmut," online material that is not appropriate for viewing by minors.

It seems that the real question at issue is whether it is possible to police the contents of the Internet. Back in 1995, Senator Jim Exon (D-NE) stepped into the void and introduced the Communications Decency Act or the CDA, which makes it a felony to send "indecent" or "patently offensive" material over the Internet or other online service if the material will be viewed by children. The CDA became law in February as part the larger Telecommunications Act of 1996 and has since been declared unconstitutional by two separate courts, although the courts cannot agree on whether it violates the First Amendment, the Fifth Amendment, or both. (see ACLU v. Reno, E. Dist, Pa, June 11, 1996 at http://www.eff.org/pub/Alerts/HTML/960612_aclu_v_reno_decision.html and see Shea v. Reno at 930 F. Supp. 916.) The government has appealed both cases and the decision to grant certiorari will be announced by the Supreme Court after their conference on Friday (Dec. 6th) or on the following Monday.

In the summer of 1995, Rep. Cox (R-CA) and then Rep. Wyden (D-OR - he has since moved on to replace retiring Sen. Packwood) introduced the Internet Freedom and Family Empowerment Act as an alternative to the CDA (which had just passed the Senate). As the title suggests, the bill encourages the online industry to screen messages and to act in good faith to restrict access to objectionable material and promotes the use and further development of blocking software, instead of placing the onus on the federal government to define the elusive terms associated with the CDA. It also prohibits the FCC from regulating the economics and content of the Internet or other interactive computer services. Self-policing and independence from government regulation are obviously the cornerstones of this legislative approach, which never made it out of Committee.

The Internet Freedom and Child Protection Act of 1996, which was offered by Rep. Lofgren (D-CA) in June of this year, effectively repeals the provisions of the CDA which are under constitutional fire. Internet access providers would be required to offer their users (gratis or for a fee) blocking software. Minimum standards for blocking (or screening) software would be established by the FCC. Although her legislation gives the government jurisdiction over blocking software standards, the ultimate responsibility to monitor content is being placed on the user (the family).

My analysis of censorship and the Internet is by no means comprehensive. If you would like to explore this topic further, the following two sites provide more in-depth information. A legislative archive and history of censorship legislation is located at http://www.umsl.edu/~muns/blueribbon/8.htm and an audio site of the panel discussions from the Cyber Rights 96 Conference held in Houston can be accessed at http://www.chron.com/content/interactive/special/cyber96/.

Another related issue that has come under Congressional scrutiny is Internet gambling. Americans gambled over $500 billion last year alone - as anyone can see, there is an incredible market out there for wagering. In addition to concerns over the legality of Internet gambling companies and the potential for consumer fraud, there is the worry that online gambling would virtually trap compulsive gamblers.

Sen. Kyl (R-AZ) and then Rep.Johnson (D-SD) - he is now a member of the Senate, both introduced measures regulating Internet gambling. Sen. Kyl would have explicitly banned online gambling, while Rep. Johnson sought to clarify existing law. Sen. Kyl intends to pursue this issue next year with the support of the National Association of Attorneys General, a powerful presence. Congress also established a "National Gambling Impact Study Commission" which will be investigating online wagering as part of its mandate and may lead to legislation.

We now await the Supreme Court's decision to review the constitutionality of the CDA. It has never been an easy issue and has plagued the Court in many guises over the years. As Justice Potter Stewart once remarked, he could not define obscenity, but "I know it when I see it." Where that leaves us, now that online technology is blurring already fuzzy lines, its difficult to say.

End Note: For those readers interested in political and legislative web sites, check out The Political Web Traveler, located at http://www.penncen.com/politics/. You will find information on THE newest political and state legislative sites, complete with descriptions and site information.

Story Update: On December 6, the Supreme Court granted certiorari in ACLU v. Reno. A decision on Shea v. Reno is still pending.