COMMENTS TO ME ON THE 'INDECENCY' CONCEPT OF THE 1996 COMMUNICATIONS DECENCY ACT, AND ON THE 'HARMFUL TO MINORS' CONCEPT FROM A 1998 SENATE BILL,

From ELECTRONIC FRONTIER FOUNDATION

Hi Bill.

Your understanding of the CDA and the Supreme Court's indecency ruling are not quite right. Indecency has nothing to do with community standards -- only obscenity looks to local mores in determining what is and what is not obscene. Indecency is a legal term that has been defined as being, among other things, the seven dirty words you can't say on the airwaves. Indecency is always legal for adults, but may be inappropriate for minors and therefore can be limited to times, places or manners where minors are less likely to have access to the materials. The CDA indecency provisions were struck down because there is no reasonable way to limit access from minors to materials on the net without restricting access for adults, which is an unconstitutional abridgement of adults' First Amendment rights.

The problem with the "harmful to minors" language contained in the current Coats legislation (please note that the McCain legislation is not a rehashing of the CDA with "harmful to minors" language -- that is the Coats bill. The McCain legislation has to do with mandatory filtering for schools and libraries receiving federal funding) is that "harmful to minors" is not a well-articulated legal standard, like obscenity, indecency, child pornography, etc. It could mean *anything* that someone could argue is harmful to minors, such as cigarette advertising, that has nothing to do with sex. It will be significantly more difficult to argue against in court, because there isn't necessarily a clear acceptance by legal definition that adults have a constitutional right to access the materials. And the phrase "harmful to minors" implies that the state has a strong interest in protecting children from these materials.

Of course EFF, the ACLU and others who fought against the CDA are talking about a legal challenge if the Coats legislation (or the McCain

legislation, for that matter) become law. But we see this as a much more difficult legal challenge.

Hope this helps clarify things. Take care.

Shari

Shari Steele, Staff Attorney, Electronic Frontier Foundation

Harmful to minors will probably prove more difficult to strike down in court, as applied to the Net, but not impossible. It's really a matter of the overbreadth, not the vagueness - CDA II shares with CDA the fatal flaw that it will in effect ban the content, not restrict it to minors, because there is no way to restrict it to minors. If it passes, we expect to successfully have it ruled unconstitutional in court, just not quite as easily or quickly as the original CDA.

The definition of "harmful to minors" is in fact vague as well, and we can probably prove it, but the overbreadth of application to reach beyond commercial smut-purveyors to non-profits, educational sites, online newspapers, etc., will probably be the clincher.

(Stanton McCandlish, EFF)

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