By: DEBRA GERSH HERNANDEZ
WITH THE LIGHTNING speed that typifies new technology, as soon as the new telecommunications law was signed, the protests began.
At least two lawsuits were filed and hundreds of World Wide Web sites went to black backgrounds with white type in protest against the law’s indecency provisions ? which challengers say violates the First Amendment.
Sanctions of up to $250,000 and/or five years in prison may be imposed for violations of the Computer Decency Act.
The daily online publication, the American Reporter, filed a lawsuit in New York seeking preliminary and permanent injunctions against enforcement of the law.
Flaunting the new restrictions, American Reporter ran an article by former Texas Judge Steve Russell, now an assistant professor of criminal justice at the University of Texas at San Antonio, that deliberately was laced with obscene invectives aimed at violating the regulations.
The piece opened, “You motherfuckers in Congress have dropped over the edge of the earth this time,” and proceeded to go on in that vein ? and worse ? charging Congress with selling out the First Amendment.
“To violate your ban on indecency, I have been forced to use and over-use so-called indecent language,” Russell wrote.
He proceeded to prove that point and to write that whatever obscenities he could call Congress, “that would be nothing compared to this indictment, to wit: you have sold the First Amendment, your birthright and that of your children. The Founders turn in their graves. You have spit on the grave of every warrior who fought under the Stars and Stripes.”
The lawsuit pointed out that while online publication of that piece may have violated the Telecommunications Act, its publication in a newspaper or magazine or distribution through the mail would have been legal.
“There is no legal or constitutional basis for the distinction between traditional newspapers and newspapers distributed electronically,” the lawsuit argued.
American Reporter editor in chief Joe Shea said this was the first time in the more than 250 issues he has published that such four-letter words appeared, and it will be the last. It was done simply to make a point and challenge the law.
The American Reporter’s battle against these provisions dates back to June 14, 1995, when it published an editorial vowing to fight the act “by publishing an article that intentionally violated the law, that described the members of Congress that voted for the law in the strongest terms possible, and that [said] we would then defend any action by the government against us all the way to the United States Supreme Court,” Shea explained.
Through the Internet, Shea said he found Russell, who volunteered to write the article, and Washington attorney Randall Boe of Arent Fox Kintner Plotkin & Kahn, who offered to defend it.
“A second reason [for doing this] is that we cherish the First Amendment as the highest and dearest of all our rights and we, as a matter of course, will defend it with our lives,” Shea added.
The American Reporter lawsuit challenges restrictions on “indecent and patently offensive” material, but not obscenity, he added.
“Our material is fairly described as indecent and patently offensive under the law. It is not obscene,” Shea said. “We think it is fair for the government to make a case against material that involves pedophilia and other frankly obscene and currently illegal material, but not against anything that is so vaguely described as ‘indecent’ and ‘patently offensive.’ “
As expected, the American Civil Liberties Union, acting on behalf of some 20 organizations, filed a lawsuit in Philadelphia which charged the law violates both First Amendment free-speech rights and constitutionally protected rights to privacy.
“We’re at a critical stage in the development of new information technology and First Amendment law,” said ACLU national legal director Steven Shapiro. “The issue is no less than whether the First Amendment applies to this critical new technology.”
At a Washington press conference announcing the action, Shapiro said this lawsuit “is not about obscenity, it’s about censorship” of material that “is not banned in any other form.”
The ACLU asked the federal district court in Philadelphia for a temporary restraining order against enforcement of the law.The court gave the government one week, until Feb. 14, to file a response brief, during which time Judge Ronald L. Buckwalter instructed the government not to prosecute producers of online material that would fall under the new law.
Joining the ACLU was the Planned Parenthood Federation of America, which was particularly concerned about a provision buried in the new law that dredges up a 19th century anti-vice regulation known as the Comstock Act. This section of the new law would prohibit any online discussion of abortion.
“This legislation is a high-tech version of book banning and cannot be allowed to go unchallenged,” said Roger Evans, litigation director of PPFA’s Legal Action for Reproductive Rights.
Rep. Patricia Schroeder (D-Colo.) said she will introduce a bill when Congress returns on Feb. 26 to strike the Comstock provisions from the law, although the anti-obscenity rules would remain untouched.
“The abortion-related gag law clearly violates our cherished First Amendment rights,” Schroeder wrote in a letter to her colleagues on the Hill, urging them to join her in repealing the Comstock rules.
Freedom Forum First Amendment ombudsman Paul McMasters said he hoped “that the Clinton administration’s promise not to try to enforce the Comstock provisions of the Computer Decency Act won’t mollify First Amendment supporters, who understand the real, negative implications for free speech and free press that the Computer Decency Act represents.
“It troubles me that some members of Congress, as well as the administration, really beat the drums for the telecommunications bill, knowing full well that there were constitutional problems with significant portions of the legislation,” he added.
“It also troubles me that some people, like Rep. Schroeder, are outraged by the Comstock provisions of the bill and still seem to be comfortable with other censorship contained in the act,” McMasters said.
At least two members of Congress ? Sen. Patrick Leahy (D-Vt.) and Rep. Jerrold Nadler (D-N.Y.) ? were troubled enough by the act not only to vote against it, but also to join hundreds of others in turning their Web sites black after the bill was signed into law.
In addition, Leahy said he plans to introduce legislation to repeal the censorship provisions.
Spurred on by groups such as the Center for Democracy and Technology and the Voters Telecommunications Watch, hundreds of organizations and individuals gave their Web sites black backgrounds with white type for 48 hours after the bill was signed.
In addition, numerous Web sites posted graphics of blue ribbons to symbolize the preservation of civil rights, similar to the ubiquitous red ribbons used for AIDS awareness.
“The online censorship provisions should be repealed, and I plan to introduce legislation to do just that,” read a statement on Leahy’s Web site.
“I was one of five senators who voted against this legislation, in large part because of what I believe are unconstitutional restrictions on what we can say online,” he continued.
“While I do not condone the transmission of obscene material or child pornography on the Net, I believe the solution proposed in the telecommunications law will do more to harm the use and growth of the Net without combating the problem for which it is intended,” Leahy stated.
A statement on Nadler’s Web site noted that he was proud to join the protest.”While the stated intent of this provision is to limit minors’ access to ‘indecent’ material, in fact, its effect will be to limit everyone’s constitutionally guaranteed right to free expression,” Nadler stated.
“This provision will dangerously constrain free electronic speech,” he continued. “It is the cyberspace equivalent to book burning, and those who claim to support the First Amendment have a responsibility to speak out against this harmful measure.”
? The Post carried a front-page photo (taken from a frame of Fox-5 TV footage) of starks pointing in Hill’s face) [Photo & Caption]