Cybersex: Regulating sexually explicit expression on the Internet

Behavioral Sciences and the Law

Volumn 14, Issue 2, 1996, Pages 145-166

  Cate, Fred H ^a  

^a INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COMPUTER NETWORK; ETHICS; GOVERNMENT; LEGAL ASPECT; MASS MEDIUM; PUBLICATION; REVIEW; SEXUAL BEHAVIOR; TELECOMMUNICATION; UNITED STATES;

ADULT; CHILD; COMPUTER COMMUNICATION NETWORKS; EROTICA; HUMANS; SEX OFFENSES; UNITED STATES;

EID: 0029895901     PISSN: 07353936     EISSN: None     Source Type: Journal    
DOI: 10.1002/(SICI)1099-0798(199621)14:2<145::AID-BSL238>3.0.CO;2-N     Document Type: Review

References (124)

1. National Telecommunications and Information Administration Fact Sheet, May 30, 1995, at 2.
2. Ted Bunker, Is it 1984?, LAN Mag., Aug. 1994, at 40.
3. Latest Estimates of Internet Growth, Online Newsletter, Nov. 1994.
4. Online Exchanges Can Reach Thousands, Plain Dealer, June 11, 1995, at 17A.
5. Factoid, Headline News, Aug. 4, 1995.
6. Fast Fact, Toronto Star, Nov. 3, 1994, at J1.
7. Jared Sandberg, Net Working: Corporate America Is Falling in Love with the Internet, Wall St. J., Nov. 14, 1994, at R14.
8. John Markoff, On-Line Service Blocks Access to Topics Called Pornographic, N.Y. Times, Dec. 29, 1995, at A1;
9. Compuserve Suspends Access to Specific Internet Newsgroups (press release), Dec. 28, 1995.
10. Telecommunications Competition and Deregulation Act of 1996, S. 652, 104th Cong., 2nd Sess. §§ 501 et seq.
11. Id. § 502(e).
12. Id. § 502(d).
13. Marty Rimm, Marketing Pornography on the Information Superhighway, 83 Geo L. J. 1849 (1995).
14. Id. at 1869.
15. R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542 (1992); New York Times Co. v. United States, 403 U.S. 713 (1971). See generally, Fred H. Cate, The First Amendment and the National Information Infrastructure, 30 Wake Forest L. Rev. 1, 10-11 (1995).
16. R.A.V., 112 S. Ct. at 2542-43; Texas v. Johnson, 491 U.S. 397 (1989); Consolidated Edison Co. v. Public Service Commn, 447 U.S. 530 (1980). See generally, Cate, supra note WAKE14, at 11-12.
17. Wooley V. Maynard, 430 U.S. 705 (1977); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). See generally, Cate, supra note WAKE14, at 12-14.
18. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
19. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See generally, Cate, supra note WAKE14, at 14-16.
20. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). See generally, Cate, supra note 14, at 16.
21. Minneapolis Star & Tribune Co. v. Minnesota Commr of Revenue, 460 U.S. 575 (1983); First Natl Bank v. Bellotti, 435 U.S. 765 (1978); Buckley v. Valeo, 424 U.S. 1 (1976). See generally, Cate, supra note 14, at 16-18.
22. 354 U.S. 476, 485 (1957).
23. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
24. Robert Corn-Revere, New Age Comstockery: Exon vs. the Internet (1995).
25. Paris Adult Theater v. Slayton, 413 U.S. 49, 9293 (1973) (Brennan, J., dissenting).
26. Memoirs v. Massachusetts, 383 U.S. 413 (1960) (emphasis in original).
27. 413 U.S. 15 (1973).
28. Id. at 24.
29. Id.; Jenkins v. Georgia, 418 U.S. 153 (1974).
30. 413 U.S. at 20.
31. Id. at 30-33.
32. Pope v. Illinois, 481 U.S. 497 (1987).
33. 394 U.S. 557 (1969).
34. Id. at 568.
35. Id. at 564.
36. Id. at 565.
37. Id. at 565-68.
38. Id. at 566-67.
39. New York v. Ferber, 458 U.S. 747 (1982).
40. Ginsberg v. New York, 390 U.S. 629 (1968); American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990); Upper Midwest Booksellers Assn v. Minneapolis, 780 F.2d 1389 (8th Cir. 1985).
41. Butler v. Michigan, 352 U.S. 380, 383 (1957).
42. 438 U.S. 726 (1978).
43. Id. at 749.
44. Id. at 758 (Powell, J., concurring in part).
45. New Indecency Enforcement Standards to be Applied to All Broadcast and Amateur Radio Licensees, FCC No. 87153, 62 Rad. Reg. 2d (P&F) 1218 (1987) (public notice).
46. 852 F.2d 1332, 1340 (D.C. Cir. 1988).
47. Id. at 1343.
48. Id. (emphasis in original).
49. The Supreme Court has justified applying a lower standard of First Amendment scrutiny to regulations affecting radio and television broadcasting, based on a variety of rationales, the most prominent of which is the scarcity of the electromagnetic spectrum that broadcasting requires. In Red Lion Broadcasting Co. v. Federal Communications Commission, the unanimous Court reasoned: Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. 395 U.S. 367,388 (1969). Because of scarcity, Justice White wrote for the Court, the Government is permitted to put restraints on licensees . . . . It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. Id. at 391 (citations omitted). Scarcity has been under attack for more than a decade. Critics question whether there was ever any more scarcity in the case of broadcasting than there was in print media, whether the government created whatever scarcity existed, whether scarcity is inherently bad since it is essential to the operation of a market, and, even if scarcity does exist and is harmful, whether it served as a logical foundation for the many regulations that the government has premised on it: not merely to justify licensing, but also to rationalize character and fitness qualifications for broadcasters obligations to air programming covering matters of public interest, give or sell time to persons attacked in broadcasts and candidates for public office, air childrens programming, avoid indecency, not advertise cigarettes or lotteries, and hundreds of additional requirements. See Cate, supra note 14, at 37-40, and sources cited therein.
50. 492 U.S. 115 (1989).
51. Child Protection and Obscenity Enforcement Act of 1988 (amending 47 U.S.C. § 223(b) to prohibit obscene and indecent telephone calls).
52. 492 U.S. at 126.
53. Id. at 128 (citations omitted) (quoting Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)).
54. Until 1976, the Supreme Court declined to extend First Amendment protection to commercial speech. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976), the Supreme Court emphasized the importance of commercial information, in this case information on pharmaceutical prices, for intelligent consumer decisionmaking and held that such speech was protected by the First Amendment. The Court noted, however, that the greater objectivity and hardiness of commercial speech warranted a lesser standard of protection than for other forms of expression. Id. at 772. Four years later, in Central Hudson Gas and Electric Corporation v. Public Service Comm'n, 447 U.S. 557 (1980), the Court set forth a fourpart test for determining exactly what that standard of protection should be. Under the Central Hudson test, for commercial speech to be protected (1) it must concern a lawful activity and not be misleading; (2) the government must assert a substantial interest for its regulation; (3) the regulation must directly advance that interest; and (4) the regulation must be no more extensive than necessary to serve the government interest. Id. at 566. In 1989, the Court altered the fourth prong to require that the regulation merely be narrowly tailored to serve the governmental interest. Board of Trustees v. Fox, 492 U.S. 469 (1989).
55. Federal law today prohibits the sale of an "obscene visual depiction" on federal property, the mailing, importation, and interstate transportation, of obscene matter, selling obscene material which has been shipped or transported in interstate or foreign commerce, the distribution of obscene matter by cable television, the transmission of obscenity by telephone in the District of Columbia or across state lines, and the broadcasting of obscene language by means of radio communication. 18 U.S.C. §§ 1460-69, 47 U.S.C. § 223 (1988 & Supp. 1993).
56. United States v. Thomas, CR9420019G (W.D. Tenn. July 28, 1994) (verdict).
57. United States v. Thomas, CR9420019G (W.D. Tenn. Dec. 13, 1994) (conviction and forfeiture order).
58. United States v. Thomas, Nos. 946648 and 946649 (6th Cir.).
59. Brief for amicus curiae Electronic Frontier Foundation at 4, United States v. Thomas, Nos. 946648 and 946649 (6th Cir.).
60. 413 U.S. at 20.
61. Cruz v. Ferre, 755 F.2d 1415, 1419-22 (11th Cir. 1985); Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp. 1099, 1113 (D. Utah 1985), aff'd, 800 F.2d 989 (10th Cir. 1986), aff'd, 480 U.S. 926 (1987).
62. Modern Anxiety: What to Do When Smut Rides the Internet?, L.A. Times, June 16, 1995, at B6.
63. SurfWatch Software has developed software that bars children from newsgroups and other Internet sites that includes sexually explicit expression. In addition, the nations three largest commercial on-line services - America Online, CompuServe, and Prodigy - allow parents to tailor the services to which their children have access. Microsoft, Netscape, and Progressive Networks have formed the Information Highway Parental Empowerment Group to develop other filtering technologies. Id.; Steve Lohr, Senate Bill Escalates Computer-Smut Debate, N.Y. Times, June 16, 1995, at D4.
64. See Sable Communications, 492 U.S. at 131.
65. Carlin Communications, Inc. v.-FCC, 837 F.2d 546 (2d Cir.), cert. denied, 488 U.S. 928 (1988).
66. Telecommunications Competition and Deregulation Act of 1995, S. 652, 104th Cong., 1st Sess. §§ 401 et seq.
67. Id. § 402(a).
68. Communications Act of 1995, H.R. 1555, 104th Cong., 1st Sess. §§ 104 et seq.
69. "The term 'interactive computer service' means an information service, system or access software provider that provides or enables access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." Telecommunications Competition and Deregulation Act of 1996, S. 652, 104th Cong., 2nd Sess. § 509(f)(2) ["1996 Act"].
70. Id. § 502(e).
71. H. R. Conf. Rep. No. 458, 104th Cong., 2nd Sess. (1996) ["Conference Report"].
72. 1996 Act, supra note 67, § 502(d).
73. Id.
74. Id. § 502(e)(5).
75. Conference Report, supra note 69.
76. Id.
77. In In re Infinity Broadcasting Corp. of Penn., 3 F.C.C.R. 930, 937 n.47 (1987), the FCC proposed midnight as the time after which it is reasonable to expect that the risk of unsupervised children in the audience is minimized and therefore when indecent programming may be broadcast without fear of liability. In Action for Children's Television v. FCC, 852F.2d 1332 (D.C. Cir. 1988) ("ACTI"), the Court of Appeals for the District of Columbia vacated the Commissions postmidnight safe harbor. Two months after the courts decision in ACT I, Congress instructed the Commission to promulgate regulations enforcing the prohibition on indecency on a 24 hour per day basis. Pub. L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988). The Commission complied by issuing a regulation banning all broadcasts of indecent material. Enforcement of Prohibitions Against Broadcast Obscenity and Indecency in 18 U.S.C. § 1464, 4 FCC Red. 457 (1988). The following year, the Court of Appeals remanded the challenge to the FCCs new regulation to enable the Commission to solicit information relevant to the congressionally mandated 24-hour ban. Action for Children's Television v. FCC, No. 88-1916 (D.C. Cir. Sept. 13, 1989). The Commission reported its conclusions in In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 5 F.C.C.R. 5297 (1990). In that report, the FCC found that the compelling government interest in protecting "children ages 17 and under" from indecent broadcasts would not be promoted effectively by any means more narrowly tailored than a 24-hour prohibition. Id. at 5297, 5301 .In Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir.1991), cert denied, 503 U.S. 913 (1992), the appellate court struck down the total ban on indecent broadcasts. Congress again intervened, passing the Public Telecommunications Act of 1992, which required the Commission to promulgate regulations to prohibit the broadcasting of indecent programming - (1) between 6 a.m. and 10 p.m. by any public radio or television station that goes off the air at or before midnight; and (2) between 6 a.m. and midnight by any other radio or television station. Pub. L No. 102-356 § 16(a), 106 Stat. 949 (1992). The Commission complied in its 1993 Report and Order, 8 F.C.C.R. at 711; 47 C.F.R. § 73.3999 (1994). Those rules were finally upheld by the Court of Appeals in Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), but only after the court extended the safe harbor from to 10:00 p.m. to 6:00 a.m. for all broadcasters.
78. In 1983, Congress passed the Federal Communications Commission Authorization Act of 1983, Pub. L. 98-214, § 8(b), 97 Stat. 1470, which made it a crime to use telephone facilities to make "obscene or indecent" interstate telephone communications "for commercial purposes to any person under eighteen years of age or to any other person without that person's consent." 47 U.S.C. § 223(b)(1)(A) (1982 Supp. V). The statute required the FCC to promulgate regulations laying out the means by which dial-a-porn sponsors could screen out underage callers. Id. § 223(b)(2). The FCC initially promulgated regulations that would have established a defense to message providers operating only between the hours of 9:00 p.m. and 8:00 a.m. and to providers requiring payment by credit card before transmission of the dial-a-porn message. Restrictions on Obscene or Indecent Telephone Message Services, codified at 47 C.F.R. § 64.201 (1988). In Carlin Communications, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984), the Court of Appeals for the Second Circuit rejected and remanded the Commissions rules. In 1985, the FCC promulgated new regulations which continued to permit credit card payment as a defense to prosecution, while adding a defense based on use of access codes. Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, 50 Fed. Reg. 42,699, 42,705 (1985) (FCC, final rule). The FCC rejected a proposal for "exchange blocking" which would block or screen telephone numbers at the customers premises or at the telephone company offices. In Carlin Communications, Inc. v. FCC, 787 F.2d 846 (2d Cir. 1986), the Court of Appeals set aside the new regulations because of the FCCs failure adequately to consider customer premises blocking. The FCC then promulgated a third set of regulations, which again rejected customer premises blocking but added to the prior defenses of credit card payments and access codes the defense of message scrambling. Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, 52 Fed. Reg. 17,760 (1987) (FCC, third report and order). In 1988, in Carlin Communications, Inc. v. FCC, 837 F.2d 546 (2d Cir.), cert. denied, 488 U.S. 924 (1988), the Court of Appeals for the Second Circuit invalidated § 223(b) as it applied to nonobscene speech, id., at 560, 561, and remanded the case to the Commission to determine whether a less restrictive technological means was available for controlling access by minors to obscene expression. In April 1988, Congress amended section 223(b) of the Communications Act to prohibit outright indecent as well as obscene interstate commercial telephone communications directed to any person regardless of age. Pub. L. No. 100-297, 102 Stat. 424. The Supreme Court overturned that law, to the extent it applied to indecent communications, in Sable Communications of Calif., Inc. v. FCC, 492 U.S. 115, 126 (1989).
79. Conference Report, supra note 69.
80. H. R. Res. 353, 104th Cong., 2nd Sess., 142 Cong. Rec. H1145 (1996).
81. 142 Cong. Rec. D56-01 (daily ed. Feb. 1, 1996).
82. 142 Cong. Rec. D54-02 (daily ed. Feb. 1, 1996).
83. Edmund L. Andrews, Communications Bill Signed, and the Battles Begin Anew, N.Y. Times, Feb. 9, 1996, at A1.
84. American Civil Liberties Union v. Reno, Civ. Action No. 96-963 (E. D. Pa. Feb. 15, 1996) (temporary restraining order).
85. Amy Harmon, Lobby Emerging to Fight Restrictions on the Internet; Court: A Civil Suit Filed Against the New Decency Act by a Coalition of 37 Groups Reflects a Mounting Opposition, L.A. Times, Feb. 27, 1996, at D1.
86. Modern Anxiety: What to do When Smut Rides Internet, supra note 61, at B6.
87. Butler v. Michigan, 352 U.S. 380, 383 (1957).
88. Censorship on the Internet, N.Y. Times, June 22, 1995, at A26.
89. See Letter from Kent Markus, Acting Assistant Attorney General, to Senator Patrick J. Leahy, May 3, 1995.
90. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
91. Thomas Emerson, The System of Freedom of Expression 6-7 (1970);
92. see also John Locke, A Letter Concerning Toleration 4546 (P. Romanell ed. 1955) (1st ed. 1689);
93. John Stuart Mill, On Liberty 18, 2829 (D. Spitz ed. 1975) (1st ed. 1859).
94. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Hohnes, J., dissenting) ("But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas . . ."). See generally, Fred H. Gate, The First Amendment and the International "Free Flow" of Information, 30 Va. J. Intl L. 371, 392395 (1990).
95. Texas v. Johnson, 491 U.S. 397, 414.
96. Pacifica, 438 U.S. at 745-56.
97. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339340 (1974); see also Whitney v. California, 274 U.S. 357, 37576 (Brandeis, J., concurring) ("the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they [the Framers] eschewed silence coerced by law-the argument of force in its worst form.")
98. See Cohen v. California, 403 U.S. 15 (1971); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46(1988).
99. 337 U.S. 1, 4 (1949). Justice Brandeis wrote in Whitney v. California, that the Court has determined that "the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent. . . ." 274 U.S. 357, 373 (Brandeis, J., concurring).
100. 394 U.S. at 566 (quoting Kingsley Intl Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959)).
101. Thomas Emerson, The System of Freedom of Expression 6 (1970).
102. David A. J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 62 (1974).
103. Such expression should therefore be distinguished from that involved in the FBIs recently concluded twoyear "Innocent Images" investigation. The operation, which reportedly grew out of a complaint of an America On-line customer who received an unsolicited mail message contained an images file depicting two boys engaged in sexual acts, which resulted in searches of 125 homes around the country and 12 arrests. According to press reports, the investigation targeted both the transmission of child pornography and the use of computer networks to solicit minors for sexual acts. Kara Swisher, On-Line Child Pornography Charged as 12 are Arrested, Wash. Post, Sept. 14, 1995, at A1.
104. 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
105. 394 U.S. 557.
106. Id. at 564.
107. Id. at 566-68.
108. Id. at 565.
109. Philip Elmer-DeWitt, Fire Storm on the Computer Nets, Time, July 24, 1995, at 57.
110. Id.
111. Id.
112. Id.
113. Id.
114. Id.
115. Id.
116. See, e.g., Donna L. Hofman & Thomas P. Novak, A Detailed Analysis of the Conceptual, Logical, and Methodological Raws in the Article: "Marketing Pornography on the Information Superhighway" (July 2, 1995);
117. Donna L. Hoffman & Thomas P. Novak, A Detailed Critique of the TIME Article: "On a Screen Near You: Cyberporn" (DeWitt, 7/3/95) (July 1, 1995);
118. Mike Godwin, The Shoddy Article (n.d.).
119. Peter H. Lewis, The Internet Battles a MuchDisputed Study on Selling Pornography On Line, N.Y. Times, July 17, 1995, at D5.
120. Id.
121. Elmer-DeWitt, supra note 104, at 57.
122. 141 Cong. Rec. S9017 (June 26, 1995).
123. Rimm Tries a New Route, Newsweek, Aug. 7, 1995, at 10.
124. Charles A. Beard, The Nation, July 7, 1926, at 8 (quoting Thomas Jefferson).