Code Blue

By Henderson, Rick | Reason, May 1996 | Go to article overview

Code Blue


Henderson, Rick, Reason


How to save us from the cybercops

Infinity Broadcasting has racked up hundreds of thousands of dollars in fines from the Federal Communications Commission because Howard Stern has used "indecent" language on his radio show. But Stern's also a popular author. At press time, his Miss America had been on The New York Times best-seller list 15 weeks. And Stern certainly doesn't tone down his act in print. You can barely turn a page without finding language many adults might find offensive.

Thanks to the Communications Decency Act, a section of the new telecommunications law, the government could send people to prison for merely talking about Stern's book - as long as the conversation takes place in cyberspace. The act sets $250,000 fines and jail terms of up to six years for anyone who uses interactive computer networks to make "indecent" language or pictures - the same material that makes Howard Stern an FCC target - available to minors.

So while any 12-year-old can legally plunk down $20 to buy Miss America, if that same youngster reads a profanity-laced quote from the book on the Internet - say, one from Nick Gillespie's March review of the book on REASON's World Wide Web page - Nick (or Editor Virginia Postrel) could go to the slammer.

Defenders of the new law claim that it is not designed to stifle the transmission of serious literature; it's meant to keep Junior from finding the alt.sex.bestiality newsgroup with the family Macintosh. In a widely published op-ed column, Cathy Cleaver, director of legal studies at the Family Research Council, claims that the law's restrictions "will not criminalize Shakespeare or Joyce.... Outside the courtroom, common sense helps us discern great literature from gratuitous sex."

"Great literature" may be indeed protected, since few prosecutors want to take on the Bard. But there's a large range between Shakespeare and the pedophilia materials pro-censorship forces keep waving in press conferences - including large sections of the best-seller lists. Anti-obscenity laws already cover both books and cyberspace. Indecency is a much broader standard, one based on the notion that new media don't enjoy full First Amendment protection. All the new law does is give to the easily offended nearly unlimited means to silence messages and throttle messengers they find distasteful.

By criminalizing messages in cyberspace that would, in print, never attract a second look from prosecutors, Washington's language cops have ignored a tool that could empower people to protect themselves from materials they dislike: data encryption. Encryption, which scrambles messages so that they're unreadable to those who can't decode them, would let subscribers to the alt.sex. pictures.naughtybits electronic news-group peacefully coexist with those who frequent Toy Story chat rooms. …

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