Censorship in the Electronic Realm
By Mark C. Mccarthy

Censorship has been a major concern in America since the United States became a country. The First Amendment was created to ensure the freedoms of citizens and specifically their freedom of speech. This freedom has been tempered by the belief that there is some speech that is not protected. That speech that infringes upon, or theatens the welfare of others exists somewhere beyond this protection. Just where this line is drawn is ambiguous and ever changing. In this shifting evironment electronic information has created a vast new realm of uncertainty and question. The fundamental problem lies in the attempts to apply traditional rules and standards to new forms of communication.

The ability for electronic information and telecommunication technologies to reach around the world almost instantaneously creates unique problems for policymakers. What was once a local issue now becomes an international issue. How quickly can we create standards? Who should create them to whom will they apply? These are the questions that keep law scholars and lawmakers busy.

Legislation in the United States

Freedom of speech is not absolute. Those statements or expressions that are considered to be harmful to others cannot protected. The struggle to delineate just what is acceptable is a continuous process. The limits are continually tested in courts arou nd the country. Decisions are made about what is appropriate in local districs and then those decisions are tested against the broader national interest.

In the world of electronic information the federal government is trying to create some standards that the U.S. can live with. The traditional challenges of creating sensitive legislation like this are increased by the ever changing capabilities of the technology. A fundamental concern is that those creating the legislation don't fully understand what they are trying to regulate.

The most prominant piece of legislation meant to regulate the internet is theCommunication Decency Act of 1995 . Also known as the Exon bill, it was widely criticized as an overzealous attempt to protect young people from an inflated description of obcenity on the web. In spite of this, the bill passed the Senate on June 14, 1995.

Prior Restraint

Censorship can occur in a number of different ways. The most obvious is prior restraint. In this case the powers that be simply censor the information prior to publication. In order for this type of censorship to work the authorities must control the e ither the sources of information or the distribution methods. Digital technologies and the world wide web have made this nearly impossible. Authoritarian governments have relied on this type of control and now find themselves facing very difficult decisions. It has been shown that a strong telecommunications infrastructure is essential for economic grow in today’s global economy. The more information that passes throught that infrastructure the more difficult it is to control. An example of a government trying to control information and the use of electronic technologies to circumvent it is that of Jeyaram. K. In a recent email message to Paul Jones he explained how he was able to publish an electroni c version of his newpaper Inside Report on the web. He does this, inspite of the fact that it is forbidden in his homeland of Sri Lanka, by posting it from Norway. Now this is an international issue that presents political difficulties for the world.

Here in the states there have been a number of cases involving prior restraint. At Carnegie Mellon University the computing services department made the decision to remove certain bulletin board trees from their list of newgroups. This policy was enacted in November of 1994.

Punishment After Publication

Another traditional method censorship is to create standards (like the legislation discussed above) and try to punish those that violated them. Local courts would rule based on the current regulations and precedents. The cases that warranted appeal would eventually test the legality of the original legislation in the Supreme Court.

Because the censorship issues in the realm of the internet and world wide web are relatively new most have not been tried on the national level. Many states and institutions are creating their own policies regarding the transfer of "obscene" materials. A few examples include New York's legislation, the University of Pittsburgh, The State Senate of Pennsylvania, and the University of British Columbia. These policies allow institutions to try to protect themselves from legal problems. A common criticism is that this results in an atmosphere of self censorship.

At the University of Memphis there was recently a case that involved the alleged violation of a student honor code on a usenet group. The student was charged with using obscene language and had his computer priviledges withdrawn. The case was to be heard by school officials but the charges were dropped. The school officials found that the charges could not withstand a test set forth by the Supreme Court in Miller v. California.

A case in which an individual was prosecuted for the electronic speech he posted is that of University of Michigan student Joe Baker. Baker posted a number of sexual fantasies that included rape and torture. The case against him was reinforced because he specifically named the women he was reffering to. This made the postings fall under the category of direct threats. .

Other Cases of Interest

An indirect form of censorship can occur when there is no forum where people can excercise there freedom of speech. The ability of users to post their own ideas on a newsgroup or bbs has created a problem for those that maintain them. In Stratton Oakmont v. Prodigy Services Inc.(No. 94-031063) (Sup. Ct. Nassau County filed Nov. 7, 1994) Prodigy faced litigation because of derogatory posts alledging wrongdoing by Stratton Oakmont. Prodigy faced penalty because they maintained a certain amount of editorial control over the postings on their service. If there was no control of content on their part they would not be liable.

Another case involving the provider of an electronic forum is Playboy Enterprises Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). Frena was found guilty of copyright infringement because his bbs contained photos that belonged to Playboy. Frena claimed that he had no control over the uploaded files. The court found that his lack of wrongful intent and lack of knowledge of the photos did not protect him.

The Playboy case raises serious questions about the liabilites of those maintaining a bbs. A result may be the filtering of all materials posted. The Prodigy case points to another solution. The key to the liability was that they claimed and assumed a certain amount of editorial control. A simple solution - and one that goes against censorship - is to not moderate the discussions.

Thomas v. United States, Nos. 94-6648, 94-6649 (6th Cir.) is another case involving a bbs. A postal inspector in Tennessee joined the bbs under a false name and downloaded images that were considered obscene in Memphis. Robert Thomas and his wife, Carleen, were found guilty of tranporting obscene materials. The ACLU has filed an appeal contending that the law was written for the transport of tangible objects not electronic pulses.

Who's responsibility is it to protect and by what standard shall we live?

In an enlightning article T.R. Reid,a computer columnist for the Washington Post, ponders the idea of government regulation of the web. It seems unlikely that any one body could create rules regulating the vast variety of content available on a worldwide network. Reid's conclusion is that the parents of the children that need protecting carry the responsibility of censorship.

What if the governments of the world decided to set up standards that would govern the content on the web? By whose standards would they decide what was obscene? The western world has very different views on obscenity than the Middle East. Do we satisfy by the lowest common denominator? If the web was restricted to only what everyone could agree on it would be like internet of old where only the military and scientists (no anatomy discussions, though) found it useful. What about contries that are still trying to achieve connectivity, Do they get to vote?

All of these issues must be addressed if there is to be governmental control of the information available on the web.

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