telecommunications rant

no big deal.

(Special Edition)

Updated February 6, 1996 by Rebecca L. Eisenberg

Hello, and welcome to Rebecca's Rants, another special edition. Tired of having to hear ordinary opinions on events? Then you've come to the right place! With Rebecca's Rants, you can hear mine! The following points of view are mine and mine alone. If you care to respond, you may do so by writing to, and maybe I will even post my response to you here!

This week's topic: telecommunications decency: whatever. Dated February 6. 1996.

Mime-Version: 1.0
Date: Tue, 6 Feb 1996 18:47:13 -0600
To: John Shiple 
From: (Fresh One)
Subject: even longer rant Re: US 48 Hours of Protest: turn your WWW pages black (fwd)

finally diving in ... partly since i am a fucking lawyer (emphasis on both, of course) who has myself lived in the beltway, worked for the aclu, and even (special bonus!) published several articles on first amendment freedoms and porgography,... and even more because i am startled and surprised to hear some intelligent commentary on this debate ...

i do agree with much, but not all, of the attached letter. especially the part about "preaching to the converted." i also want to premise this by saying that, personally, there is hardly anything i value more than the right to speak in order to communicate. hell, i gave up an entire spring vacation in law school just for the ability to have the word "fuck" used in an article published on critical feminist thought. with that being said ...

first, i don't think that we *have* lost the "battle", much less the "war" for freedom of expression. i also think that that is a battle that is always worth waging, as long as it is done in a thoughtful, rather than knee-jerk, fashion. i have been less than underwhelmed by the level of debate on this issue -- in particular the lack of debate altogether. publications like wired and hotwired merely preach, without any discussion about the meaning and purpose of some regulation. i tend to think that there are usually (but not always) "two sides" to most issues. there certainly is more than just one side to the current issue, even while disregarding all of the right-wing fascist drivel.

still, it is clear to me, at least, that much of the proposed regulations will *not* withstand judicial scrutiny. unlike the radio, televsion, and film industries, the internet is not a pre-existing government entity. to the extent that the internet uses government resources and government channels, the government may in fact regulate certain aspects of "time and place" but generally not "content." but still there must be a minimum level of "state action" for the government to step in like it may want to. compare: "speech codes" at universities. when reguations come with criminal sanctions, like many of these do, the government has to really come up with a good reason why its proposed regulation is a reasonable and narrow-tailored means of curbing the harm sought to be curbed, while leaving alternate channels of communication available.

i happen to think that better analogies to radio and television are available. for example, in some respects, the internet is like the u.s. post office, but with even less government involvement. the government, for the most part, cannot regulate what we write in private letters, except to the extent that the mail is harassing or threatening, or meets a few other narrowly tailored exceptions. i see no reason why a person has a genuine interest in harassing or threatening another person, while, at the same time, such letters can cause significant stress and fear on the part of the recipient, so those laws make sense to me.

i am not sure how much the government is involved in the internet, but it seems to be nominal. for example, if the government shut down the usenet, couldn't it just pop up, in its entirety, on another node? to the extent that the internet is available on private channels, i just don't understand how the government could touch it. compare: the publication of print medium, photography, records, art.

second, for better or for worse, there is very little "freedom" when it comes to any kind of "obscene" speech. further attempts to regulate what the government considers obscene are nothing new. while i disagree with the basis of the current doctrine of obscenity, i cannot deny that it exists. and, how many of us really want to take a stand in favor of the distribution of child pornography or (the infamously cliche example) to shout "fire" in a movie theater?

under current obscenity doctrine, material is obscene (and unprotected by the whole force of the first amendment) if it meets the following test: if an "average person applying contemporary community standards" would find that the work as a whole appealed to the "prurient interest", if the work depicted sexual conduct in a "patently offensive way", and if the work "taken as a whole lacks serious literary, artistic, political, or scientific value." (it's called the Roth-Miller test, if you care). the test does not apply in many mediums, and applies in greater force in others. i happen to think it is a stupid test, but hey, i hated the law enough to leave practice altogether. it seems to me that the definition of the medium is going to be the most important part of any discussion of or challenges to, the current regulation.

the whole "abortion issue" debate strikes me as ridiculous, for all of the reasons already mentioned. e.g. is the government really going to prohibit distribution of legal analyses of roe v. wade via internet? are they going to shut down the u.s. court's cc:Mail system where judges and law clerks often discuss legal issues surrounding abortion, obscenity, and other materials covered by this act? just about every federal court system is now on line -- are they really going to shut that down? the courts have done stupider things in the past, but one thing i learned from my experience there, is that they are very unlikely to enforce regulation that limits *their own* freedom freedom and power. and yes, you can quote me on that one.

third, it must remember that this is an untested medium. just like the legal issues surrounding offensive rap lyrics, and sampling of rap music, there are no direct precedents to draw from. in these instances, courts tend to draw from analogies that are most accessible to them. judges are often old, and not too good about learning new technologies. (sometime when you are bored, i can try to describe the countless hours i spent explaining to former judge-employers what it means to store information on a floppy, just to name one example!). remember, the government wasn't even able to wage a coherent battle against bill gates when the law was clearly, technically, against him. in these instances, it usually tends to be the better lawyers -- e.g. the ones that can translate new technology to easily accessible terms -- that win. hopefully, that will be in this case "us" ... since it the prospect of it being the government, given their computer literacy, strikes me as very low.

one thing is more than clear, though. judges and law clerks, who are the individuals who are going to be deciding the constitutionality of the law once it is enacted, don't give a damn about who is picketing in the streets. federal judges are not elected and, for the most part, care about no consitutuency beyond the few execs who have the power to elevate them to a higher court. protest is always useful, i believe, but it is also nice to know who has the power to make the changes you seek via the protest.

finally, and most importantly, at least to me, is my frustration with the lack of perspective with which the anti-net-censorship zealots are displaying with their driving cause. only a small percentage of people in this country can even access the net (remember, more than one half of the world's population has ever even used a phone!), and those who can access the internet are among the wealthiest and most privileged and educated in our society -- i.e. the group of individuals who already *have* the most freedom. (soapbox warning: alert!) those people who *really* want to take a stand on freedom have many issues to support that affect far more people --- aids, educational equity and opportunity, homelessness, lack of health care, all the 'isms (racism, sexism, heterosexism, etc), ad nauseam. there are so many battles to fight ... this one, which will, at least for now, affect only the "elite", leaves a bad taste in my mouth, even though i value internet freedom dearly. let's face it, speech *is* powerful -- that's why we fight for our right to use it ... it can create new landscapes and build new worlds, but it also can harass, degrade, threaten,debase, and slander. instead of group posts of calls for "freedom," i myself would like to see a group call for civility, creativity, thoughtful debate, and perspective.

okay, i admit, i *never* thought that this would pass. i now eat my words. and, if i have to, i will be jailed or fined for my words too (as long as i get to take my powerbook in there with me!). hell, i've been fired for my words before ...

my recommendation as to people who want to go protest this action in the streets, is instead to go put some intelligent content on the net. i'm not talking about pages that just say "fuck fuck fuck" or "abortion abortion abortion" over and over again, but rather, something useful and interesting, silly, creative, angry, intelligent. then, when this matter is brought to court, at least we will have something of value to point to when we defend our treasured Right to Write.

just my two cents. more fun than packing. rebecca

At 2:13 PM 2/6/96, John Shiple wrote:
>Jeff B. says you may forward this as you see fit...please leave it intact
>Date: Tue, 06 Feb 1996 13:49:04 -0800
>From: Jeff Burchell 
>Subject: (long rant) Re: US 48 Hours of Protest: turn your WWW pages black
>Jonathan Golub wrote:
>> >
>> >                     * 48 HOURS OF PROTEST *
>> I say, let's do it!
>Could we preach to the choir any more?  We're considering a protest, in
>a medium that to people we are protesting won't ever see.  lovely, just
>lovely.  One big bronx cheer to whomever came up with this idea
>Here's my 2 cents, be forwarned that I am a cynic that lived inside the
>beltway for almost 20 years, with an ACLU lawyer in the family.


>Call me a cynic, call me crazy, just don't plan to apologize when this
>shit happens.
>"Subtlety is the art of saying exactly what you mean
> and getting out of the way before it is understood"

"rebecca lynn eisenberg",,

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Copyright 1995, 1996 Rebecca Eisenberg