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Cyberspace and the First Amendment


RECENTLY I've been gathering material for a speech titled "Can the First Amendment survive in Cyberspace?"

The question: will the traditional defenders of free speech guard it as zealously on-line as they do in print?

But after the Senate recently voted overwhelmingly to approve the telecommunications bill, I'm beginning to think I should have asked, "Can the First Amendment survive anywhere?" The bill provides for a sweeping invasion of citizens' rights to conduct private conversations on topics of their choice, and 81 senators said that was OK.

The telecommunications bill actually does a few things that would tend toward less regulation of communications, and to that extent I would be inclined to approve of it too (without conceding the point of whether Congress has any constitutional right to be meddling in communications at all).

But in the interest of protecting children from sexually explicit words and pictures they might encounter surfing the Internet, the bill provides severe penalties for transmitting indecent material.

The obvious intent is to shut down any conversations, even between consenting adults, on topics children shouldn't hear. There are plenty of such conversations on the Internet, some of them perhaps even obscene within a strict reading of the legal definition. But the bill would apply far more broadly, to anything even remotely describable as pornographic, and furthermore to explicit discussions of sexual topics for almost any purpose -- a whole range of debate that would clearly be protected under the First Amendment if it took place in a magazine's columns.

The sponsors of the amendment, principally Senators Jim Exon of Nebraska and Dan Coats of Indiana, argued that they were merely extending to the new on-line media the same protection that consumers now have against, for instance, unwanted obscene phone calls. But that is not true. If someone makes obscene phone calls, the caller is punished -- not the telephone company. But the telecommunications bill targets providers of on-line services.

Their only defense will be to monitor everything, to censor possibly offensive material before it goes out on a computer service. Given the inconceivable volume of network communications already, that's not feasible except by shutting down the network.

The Supreme Court will probably shoot down this idea long before it gets to the enforcement stage. Some laws restricting speech are constitutionally permissible, but they must be very narrowly drawn and extremely clear, so that an ordinary person need not self-censor protected speech for fear of violating the laws inadvertently.

It's acceptable, that is, for laws to freeze out some forms of expression, as long as the chilling effect does not spread. The telecommunications bill doesn't come close to passing the test, and there's no doubt it will be vigorously challenged if a similar provision makes it through the House debate and into the final bill.

I would hope that most of the senators who voted for the bill did so for other reasons, assuming this part of it would never come into effect anyway. But you never know with politicians. It does seem clear that they are under a lot of pressure from aggrieved constituents, people who come home from work one night and find their 14-year-old reading ""

It would take quite a lot of courage to say, "Yeah, I know some of this stuff is objectionable, but the Constitution protects objectionable speech."

It's not as if people were posting their sexual chatter on billboards, where passers-by couldn't avoid seeing it. Everything on the Internet comes in a plain brown wrapper, and you have to open it on purpose. If parents know less than their teen-agers about what's in some of those wrappers, that may be a problem, but it's not a problem that should be solved by depriving others of their right to discuss any topic they want to. Or to look at filthy pictures, for that matter.

The impulse to censor is powerful and sex is an easy first target. In her recent book "Defending Pornography: Free Speech, Sex and the Fight for Women's Rights," Nadine Strossen details the way in which the attempt to suppress sexual speech spreads to other topics. Her particular concern is the wing of the feminist movement, led by Catharine MacKinnon and Andrea Dworkin, that has sought to ban pornography as a violation of women's civil rights. Ms. Strossen wasn't writing about the telecommunications bill, but her examination of how MacDworkinite legislation actually works is chilling.

Canada, not being burdened with a First Amendment, adopted such a law. Officials used it principally to harass unpopular ideas, targeting feminist and gay and lesbian publications and the stores that sold them. The fact that two of Ms. Dworkin's books arguing against pornography were among those seized is certainly ironic, but it isn't at all funny.

The theory of pro-censorship feminism is that women are weak and fragile, easily injured by talk about sex. So to protect them, nobody should be allowed to talk about sex. The same argument, only applied to children, underlies the provisions of the telecommunications bill. As Ms. Strossen points out, the pro-censorship theory reduces women to the status of children.

Laws embodying this theory have come before Congress before. Ms. Strossen quotes 1991 testimony by Joyce Meskis, president of the American Booksellers Association, against the proposed Pornography Victims' Compensation Act. A bookseller's only option under the act, Ms. Meskis said, would be "to inform publishers that the store will no longer receive any works with sexual content," and the result would be "the most pervasive censorship the U.S. has ever experienced."

Now it's the on-line providers, not the booksellers, that are threatened. As I told an audience during a recent speech, I do think the First Amendment will survive, but I'd sure be happier if there had been more people in the Senate willing to defend it.

Linda Seebach is the editorial page editor of the Valley Times (Pleasanton) and San Ramon Valley Times (Danville) in California.

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