Date: Tue, 10 Dec 1996 23:20:16 GMT Server: NCSA/1.4.2 Content-type: text/html Last-modified: Fri, 12 Jul 1996 00:23:12 GMT Content-length: 38111 The Leading Supreme Court Case

Update for ACLU v Reno and other recent events

In the rather long discussion that follows, I argue that the Pacifica case is the most closely applicable precedent on the issue of the constitutionality of the Decency Act. A panel of three District Court judges basically disagreed with this view and distinguished Pacifica, in ACLU v Reno. The primary ground for holding the Act unconstitutional derived from the nature of the Internet as a widespread, distributed medium for communication. The panel did not believe the "indecency" term was necessarily unconstitutionally vague or overbroad. I've written a perhaps rather slanted summary of the decision.

Indecent Speech is Any Nonconforming Speech

The Communications Decency Act of 1996 (the "Decency Act") forbids not merely on-line obscenity but any speech that is "indecent". The Supreme Court has held that the standard for "indecent" speech -- defined using the same language as in the 1996 Act -- is any "nonconformance with accepted standards of morality." FCC v. Pacifica Foundation, 438 US 726, 740(1978). Merely by making any such nonconforming speech available on-line, on a Web page that might be read by a person under eighteen, you would now be committing a felony under Federal law.

People I have spoken to generally expect that the strict legal effect of the Decency Act is basically benign. They base that belief (or hope) on two premises: either that the Decency Act is aimed at hard-core obscenity, or that the First Amendment will protect them.

Both of these hopes are simply wrong on the law. The Supreme Court has already decided against you.

The landmark case is FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In that case, the Court upheld the FCC's finding that a radio station was subject to sanctions for broadcasting the famous George Carlin monologue (see below). The FCC characterized the monologue in its findings:

    [T]he Commission concluded that certain words depicted sexual and
excretory activities in a patently offensive manner..."  438 U.S. at 732.
Guess what? The Decency Act forbids any
"comment ... or other communication that, in context, ...
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs..."  47
U.S.C. section 223(d)(1)(B).
In Pacifica, the Court specifically ruled that the First Amendment did not prevent government regulation of that broadcast based on its content, even though --
The remainder of this page excerpts (in direct quote) from this landmark opinion. As you read these opinions (majority, concurring, and dissenting), remember that although you may or may not agree with the reasoning, the Court squarely held that the monologue in question was not "speech" protected by the First Amendment. That is, the radio station lost the case. (If you like, you can skip straight to the ending.)

Majority opinion


Mr. Justice Stevens delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which the Chief Justice[Mr. Justice Burger] and Mr. Justice Rehnquist joined (Parts IV-A and IV-B).

This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.

A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of this recording, which is appended to this opinion, indicates frequent laughter from the audience.

At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the "Filthy Words" monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control."

The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language and that, immeidately before its broadcast, listeners had been advised that it included "sensitive language which might be regarded as offensive to some."... Pacifica stated that it was not aware of any other complaints about the broadcast.

...The Commission ... expressed the opinion that it should be regulated... "[T]he concept of 'indecent' is intimately connected with he exposure of children to language that describes, in terms patently offensive as measured by contemporary standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." ...

The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal.

...Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.

Pacifica argues, however, that this Court has construed the term "indecent" in related statutes to mean "obscene", as that term was defined in Miller v. California, 413 U.S. 15.... [I]n Hamling v. United States, 418 U.S 87,... [i]n holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc., v. Day, 370 U.S. 478... [H]e thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex." Id., at 483. In Hamling the Court agreed with Mr. Justice Harlan that section 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality.

The reasons supporting Hamling's construction of section 1461 do not apply to section 1464....

...Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.

When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. For if the government has any such power, this was an appropriate occasion for its exercise.

The words of the Carlin monologue are unquestionably "speech" within the meaning of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution.

... The question in this case is whether a broadcast of patently offensive words dealing wtih sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U.S. 476. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content -- or even to the fact that it satirized contemporary attitudes about four-letter words -- First Amendment protection might be required. But that is simply not the case. These words offend for the same reasons that obscenity offends....

We have long recognized that each medium of expression presents special First Amendment problems.... The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message ["Fuck the Draft" across the back of his jacket; his conviction was overturned on First Amendment grounds. See discussion, 438 U.S. 747 at n.25. -- E.A.] might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. Id., at 640 and 639. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

...The judgment of the Court of Appeals is reversed.


Appendix


The following is a verbatim transcript of "Filthy Words" prepared by the Federal Communications Commission.

Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [`]cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (Laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [`]cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn't and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hand and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) And now the first thing that we noticed was that the word fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck. (laughter) You want to be a purist it doesn't really -- it can't be on the list of basic words. Also cocksucker is a compound word and neither half of that is really dirty. The word -- the half sucker that's merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty -- dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock -- three times. It's in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock-fight, remember -- What? Huh? naw. It ain't that, are you stupid? man. (laughter, clapping) It's chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old kind of gushy word. (laughter) They don't like that, but they say it, like, they say it like a lady now in a middle-class home, you'll hear most of the time she says it as an expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank you. Thank you man. Yeah. (murmur)(continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [`]cause (laughter) that's based on people liking it man, yeh, that's ah, that's okay man. (Laughter) Let's let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively. Get that shit out of here, will ya? I don't want to see that shit anymore. I can't cut that shit, buddy. I've had that shit up to here. I think you're full of shit myself. (laughter) He don't know shit from Sinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi, I'm the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't know whether to shit or wind my watch. (laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house. (laughter) Up, he's up shit's creek. (laughter) He's had it. (laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain't worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there. (murmur, laughter) All the animals -- Bull shit, horse shit, cow shit, rat shit, bat shit. (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. AW! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them. (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know. (laughter) Hey, I'm shit-fadce. (laughter) Shit-face, today. (laughter) Anyway, enough of that shit. (laughter) The big one, the word fuck that's the one that hangs them up the most. [`]Cause in a lot of cases that's the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [`]cause it's got a double kind of a life-- personality--dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch, Bill, you'll fuck that engine again. (laughter) The other shit one was, I don't give a shit. Like it's worth something, you know? (laughter) I don't give a shit. Hey, well, I don't take no shit, (laughter) you know what I mean? You know why I don't take no shit? (laughter) [`]Cause I don't give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don't pack no shit cause I don't give a shit. (laughter) You wouldn't shit me, would you? (laughter) That's a joke when you're a kid wiht a worm looking out the bird's ass. You wouldn't shit me, would you? (laughter) It's an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd, and twat, those three. (laughter) Fart, we talked about, it's harmless It's like tits, it's a cutie word, no problem. Turd, you can't say but who wants to, you know? (laughter) The subject never comes up on the panel so I'm not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it's the only one IO know of, the only slang word applying to the, a part of the sexual anatomy that doesn't have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We're going to snatch that pussy and put him in a box and bring him on the airplane. (murmur, laughter). Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you're riding into town on a religious feast day. (laughter) You can't say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling)


Concurring opinion


Mr. Justice Powell, with whom Mr. Justice Blackmun joins, concurring in part and concurring in the judgment.

I join Parts I, II, III, and IV--C of Mr. Justice Stevens' opinion. The Court today reviews only the Commission's holding that Carlin's monologue was indecent "as broadcast" at two o'clock in the afternoon, and not the broad sweep of the Commission's opinion....

I also agree with much that is said in Part IV of Mr. Justice Stevens' opinion, and with its conclusion that the Commission's holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately.

It is conceded that the monologue at issue here is not obscene in the constitutional sense. See 56 FCC2d 94, 98 (1975); Brief for Petitioner 18. ... Some of the words used have been held protected by the First Amendment in other cases and contexts. [citations omitted -- E.A.] I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. See Brown v. Oklahoma, 408 U.S. 914 (1972) (Powell, J., concurring in result). And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue and playing or reading it in the privacy of his own home. Cf. Stanley v. Georgia, 394 U.S. 557 (1969).

But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as "patently offensive" to most people regardless of age.

The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary convern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to "channel" the monologue to hours when the fewest unsupervised children would be exposed to it. See 56 FCC2d, at 98. In my view, this consideration provides strong support for the Commission's holding.

The Court has recognized society's right to "adopt more stringent controls on communicative materials available to youths than on those available to adults." Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975); see also [citations omitted -- E.A.] This recognition stems in large part from the fact that "a child ... is not possessed of that full capacity for individual choice which is the supposition of First Amendment guarantees." Ginsberg v. New York, supra [390 U.S. 629] at 649-50 (Stewart, J., concurring in result). Thus, children may not be able to protect themselves from speech, which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat....

It is argued that despite society's right to protect its children from this kind of speech, and despite everyone's interest in not being assaulted by offensive speech in the home, the Commission's holding in this case is impermissible because it prevents willing adults from listening to Carlin's monologue over the radio in the early afternoon hours. It is said that this ruling will have the effect of "reduc[ing] the adult population ... to [hearing] only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). This argument is not without force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave the Commission powerless to act in circumstances such as those in this case.

The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. In short, I agree that on the facts of this case, the Commission's order did not violate respondent's First Amendment rights.

... The result turns instead on the unique characteristics of the broadcast media, combined with society's right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to themerit of the message and words. Cf. [Young v. American Mini Theatres, Inc., 427 U.S. 50], at 77-79 (Powell, J., concurring). These are the grounds upon which I join the judgment of the Court as to Part IV.


Brennan, J., dissenting.


Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting.

I agree with Mr. Justice Stewart that, under Hamling v. United States, 418 U.S. 87 (1974) [other citations omitted], the word "indecent" in 18 USC section 1464 must be construed to prohibit only obscene speech. I would, therefore, normally refrain from expressing my views on any constitutional issues implicated in this case. However, I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

... Yet, despite the Court's refusal to create a sliding scale of First Amendment protection calibrated to this Court's perception of the worth of a communiation['s content, and despite our unanimous agreement that the Carlin monologue is protected speech, a majority of the Court nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC's disapproval of Pacifica's afternoon broadcast of Carlin's "Dirty Words" recording is a permissible time, place, and manner regulation. Kovacs v. Cooper, 336 U.S. 77 (1949). Both the opinion of my Brother Stevens and the opinion of my Brother Powell rely principally on two factors in reaching this conclusion: (1) the capacity of a radio broadcast to intrude into the unwilling listener's home, and (2) the presence of children in the listening audience. Dispassionate analysis, removed from individual notions as to what is proper and what is not, starkly reveals that these justifications, whether individually or together, simply do not support even the professedly moderate degree of governmental homogenization of radio communications -- if, indeed, such homogenization can ever be moderate given the pre-eminent status of the right of free speech in our constitutional scheme -- that the Court today permits.

[To be continued.]


Stewart, J., dissenting.


[Statutory interpretation of "indecent", citing Hamling.]

My take on it all


It's impossible to read the transcript of the Carlin monologue without laughing. (Try it.) I remember his voice delivering this monologue. The transcript misses his sense of timing, but it's still very effective. Far from being the "verbal shock treatment" the Court complains about, it's a straightforward, intensely political commentary by a talented observer. So it's terrifying, to me, that the Court seems to equate the Carlin piece with, well, Beavis. Meaning either that the Court can't tell the difference, or (more honestly) it doesn't care about the content, disapproves on principle, and is willing to leave regulation up to the bureaucrats. And we know they can't tell the difference.

To me, the most frightening part of the discussion is the Court's repeated willingness to do anything in the name of the children who might be listening. They might be browsing this Web page too, or reading books in a library, or watching cable TV, or attending the Million Man March, or doing any of a thousand other disturbing things. Yes, their parents (and some of my best friends are parents) are entitled to protect them from my evil pernicious influence. All they have to do is not read my Web page. Is that so much to ask?

That's how we got into this Decency Act stuff, after all, worrying about all those kids browsing all those dirty Web pages. Like this one. Highly illegal. Throw the guy in jail.

And if radio can constitutionally be regulated on this basis, why not the Internet? (Re-read the excerpts, and substitute "Internet" for "radio". Scary, huh?)

I don't particularly care for swearing; I'll even admit that typing portions of the above transcript made me mildly uncomfortable. Still, the Government has no damn business telling me I can't offend anyone. It's not my speech I'm really worried about, though. The Internet is a precious, roiling, confusing, complex place. The Government has no damn business telling you you can't offend anyone, or telling me I'm not allowed to read what you've written, whatever it is.


The hope for the future


As I see it, there are only two grounds for distinguishing Pacifica.

One can argue that the Internet is less obtrusive than radio, and less plausibly susceptible to a "family hour" doctrine of appropriate time and place for G-rated speech. Unfortunately, the intrusiveness rationale, while clearly important to the Court's frame of mind, does not distinguish between family hour and other radio programming. If the Court had held that radio broadcasts, like sound trucks, were sufficiently intrusive to be regulated, and had banned Carlin's monologue entirely for that reason, the Internet would be safer. Instead, it was the potential access for children that formed the primary basis for the holding in Pacifica, a factor that is also present here and central to the statute's express purpose.

Alternatively, one could hope to distinguish Pacifica as dealing with civil sanctions rather than criminal penalties. A statute providing criminal penalties, such as the Decency Act, must generally meet a high standard of accuracy in its definition, or be upset under the "void for vagueness" doctrine. However, vagueness is not a First Amendment issue. For example, an accurate drafting of the law can overcome "vagueness". And in my case, the language transcribed above has already been squarely held by the Supreme Court to meet the law's existing definition, so it would be hard for me to argue vagueness.

The temporary restraining order granted in ACLU v. Reno acknowledges that the plaintiffs have a plausible case, and if they eventually win would in the meantime suffer a loss of First Amendment rights. The Justice Department's announcement that it will not institute prosecutions for violations of the Decency Act until this litigation runs its course only postpones the reckoning. In particular, according to that announcement,

If the law is upheld, the government has reserved the right to prosecute later for such speech dating from the passage of the law.

If the above discussion is correct, there is a significant chance that the law will be upheld, and that the Justice Department will institute prosecutions for language like mine.


I hope I have convinced you that, by reproducing excerpts from this opinion on a Web page accessible by children, I am committing a felony under Federal law.

(The ACLU has a page quite similar to this one. There are no new ideas.)


If you would like to commit a felony too, add the following language to your Web page:

I'm committing a <a href="http://www.cs.washington.edu/homes/eric/Pacifica.html">felony </a>; why don't you?


If you would like to turn your Web page black, add the following:
<Body BGcolor="#000000" text="#ffffff" vlink="#ff99ff" link="#ff99ff">
Other sites that I have found of interest on this issue (both pro and con): and of course
The assistance of the Legal Information Institute's United States Code database is gratefully acknowledged. They are in no respect responsible for the content of this document, however.

eric@cs.washington.edu
29 Feb 1996