One section of this legislation attempts to control indecent material that can be viewed on the Internet. The attempts by the government to control what can be viewed are broadly applied and inhibit the First Amendment rights of adults.

It is our belief that the Internet

should be considered in the context of obscenity, as are telephone and mail usage – not the narrowly defined indecency provision that is applied to public television and radio broadcasts.

Obscenity must pass a three-part test defined in the 1973 Supreme Court case Miller v. California. The three tests are (a) violates existing state statutes for sexual or excretory acts that cannot be depicted, (b) material must be patently offensive and appeal to prurient interest, and (c) material must lack literary, artistic, scientific, political or other social value.

It is the last test for obscenity that is absent from the government’s new indecency legislation. When the legislation was passed, a report was attached stating patently offensive material is intended to be judged indecent, not educational material. Unfortunately these comments are not an actual portion of the law. The American Civil Liberties Union said it is concerned that judges will only interpret the law without reviewing the report’s comments.

Two Supreme Court cases illustrate the different applications of indecent and obscene definitions. The first is Sable Communications v. FCC (1989). The federal government attempted to ban dial-a-porn services. The court ruled sexual expression that is indecent, but not obscene, is protected by the First Amendment, and the government did not apply its guidelines narrowly enough without infringing upon adults’ rights of free speech.

In FCC v. Pacifica Foundation (1978), the Supreme Court upheld a ruling that determined a radio station’s broadcast was indecent and the government had legitimate interest in regulating broadcast because of its pervasiveness and open access.

The Internet is not an open broadcast as is television or radio. It requires an active intent to use, the same as buying a magazine or dialing a phone, so the indecency standard is improper for its regulation as it is for mail or phone use.

The ACLU, along with 19 individuals and groups, filed a lawsuit against the legislation shortly after it was signed by Clinton. On Thursday, a federal judge blocked the enforcement of the indecency act by the federal government but upheld the provision that criminalizes the display of patently offensive material in a venue accessible to minors.

With Internet still a relatively new medium, as with television and radio when they were first invented, how to define what should and should not be applied to control content is going to be crucial in the coming years.

While commendable in their intent – to protect children – our legislators send those same children a more chilling message when they restrict the people’s rights to freely communicate.