Electronic Censorship

As a resource for information, the Internet has been both exciting and exasperating for precisely the same reason: the volume of unrestricted material that can be accessed instantly from virtually any-where in the world. This means that inaccurate information can be distributed as quickly and easily as carefully researched material. It also means that offensive material, including pornography, can be posted and accessed. Balancing the First Amendment right to free speech with the need to protect against unprotected material has been a key focus of the U.S. government since the 1990s.

In 1996, Congress passed the Communications Decency Act (CDA), which prohibited the posting of materials deemed “indecent” or “patently offensive.” There were already laws prohibiting child pornography and obscenity; CDA went further and ultimately prohibited what opponents claimed was protected speech under the First Amendment. The U.S. Supreme Court unanimously struck down CDA in 1997, claiming that its reach was too broad.

Congress passed the Child Online Protection Act (COPA) in 1998 and the Children’s Internet Protection Act (CIPA) in 2000. COPA established criminal penalties for any one who distributed indecent online material to minors, and CIPA required libraries and schools to place filters on their computers or face the loss of federal funding. COPA was challenged in the courts and in 2003 the Third Circuit Court of Appeals found that is was unconstitutional. The U.S. Supreme court upheld that decision in 2004 by a 5-4 margin. As for CIPA, it withstood a challenge when the Supreme Court found it constitutional by a 6-3 margin, but a pluraility of the justices noted that the filtering systems needed to be easy to disable for adults who wish to use public library computers.

First Amendment arguments have also allowed unsolicited e-mail (better known as spam) to clog the e-mail boxes of millions of individuals, not to mention commercial, corporate, and even government e-mail accounts. Proponents of spam claim that it is the electronic equivalent of bulk mail and is protected speech. Opponents claim that spam is far more insidious because many spammers use phony e-mail addresses and subject lines, making it impossible to contact the source to ask to be removed from the mailing list. (Experts on spam advise against sending a reply to “opt-out” links because this merely assures the spammer that the sender’s address is active.) In December 2003 President George W. Bush signed the CAN-SPAM Act, which requires all commercial e-mailers to provide an opportunity to opt out, prohibits false headers and subject lines, and imposes civil penalties on offenders. Though well-intentioned, CAN-SPAM did little to make a real impact, in part because it is easy for spammers to find electronic loopholes that allow them to remain uncaught. The Coalition Against Unsolicited Commercial E-mail (CAUCE) is a volunteer nonprofit organization that works to find ways to help reduce spam. Information on consumer guidelines, and on the group’s progress, can be found at www.cauce.org.


Inside Electronic Censorship