Saturday, November 18, 2006

How I looked at censorship in 1997

When I wrote my first book (details here) and published it in 1997, I suggested the "renovation" of the Bill of Rights with a new constitutional amendment. (I know that "constitutional amendment" has become itself a "bad word" in view of all of the anti-gay marriage amendment referendums.) The text of the chapter in which I proposed it is here.

One section of the "Amendment" was a reaction to the Communications Decency Act (CDA), and it was written before the Supreme Court struck down the Act in June 1997.

The text read:

"Section 12.

When anyone is charged with an offense of making indecent or otherwise unsuitable material available to minors, a successful defense is made when the actor makes a good-faith effort to publish in an area not normally or immediately accessible to minors, or to use customer age-screening technologies available at reasonable effort and cost."

Obviously by today's debate this is overbroad. At least, credit cards and adult-id screening hasn't been shown to be available and effective at "reasonable effort and cost."

But in 1996-1997, I did have a different idea of how the Internet would play out. I perceived the book becoming known by word-of-mouth (to some extent this happened, as I got on television once with a university speech in early 1998 after moving to Minneapolis for a job transfer). I perceived the website (which at the time was called -- now all moved to doaskdotell) as maintaing the accuracy of the political and social research material as events continued to unfold -- for people who already had the book. Most of the site was arranged as "consolidated footnote files" when first put up in the summer of 1997, and it was duplicated on "Hometown AOL."

In fact, I added this footnote on one of the files:

Ch. 6 Page 306, Provision 12. I would now add the provision "without an unreasonable burden upon adult speakers and readers of electronic media."Ch. 6 Page 306, Provision 12. I would now add the provision "without an unreasonable burden upon adult speakers and readers of electronic media."

I was fortunate to have an ISP hosting owned by a coworker, who quickly educated me on the value of search engines and agressive presence. It turned out that the domain was much more stable and important than I had originally expected.

By late 1998, I realized the importance of search engines in being found by people, and that one could build up a public brand reputation with essentially "free entry" and passive marketing. When COPA was written, I realized that this model was at risk for newbies. It does seem that if a newbie has a book to sell and markets passively (with free content) to attract attention to a self-published book, this could fit the meaning of "commercial". (Maybe, however, the word "commercial" is narrower, such as conducting business transactions on the site.)

It is good to go back and read the slip opinion about the CDA in 1997, here.

In those days, commentators were referring to the "indecency" standard as too overbroad, and the "harmful to minors" standard (not used in the original CDA) as narrower. However, it is clear that this is not the case. We still don't know what an "average minor" is (across age ranges or across cognitive ability) or whether "minors" refers to average minors or the "best" minors (the "Clark Kent Problem"). We don't have a clear idea of what a national standard for "... with respect to minors" really would mean.

I do have to admit, however, that in 1997 I imagined that one could write a very narrow law (maybe Prong 2 without the word "represents") and require adult access technology, consistently and without discretion or subjectivity -- and that was partly because I saw Internet publishing as still a bit like book publishing. But it is not. Even in 1997, the Supreme Court indicated that First Amendment protections apply to online content, and content-based restrictions are presumptively invalid. I was, of course, concerned mainly with the implicit content and subject matter question, but even some explicit content is arguably very valuable socially to many minors (such as STD prevention, cancer detection, disability issues) and objection to the materials comes more from ideas about socialization of minors according to some peoples' religious and family values, than about anything objective.

My original 1998 affidavit is here.

I am not sure what happened Thursday, but to the best of my knowledge final closing arguments may occur on Monday Nov. 20. Please comment if you know differently.

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