I Fought The Law

by Mike Peck
(page 2)

If you spend any time online

and haven't been living in a vacuum for the last couple months, you've heard of more than a few examples of this, first and foremost being the Exon Amendment, a proposed addition to the Senate telecommunications bill. The amendment, sponsored by Senator James Exon (D-NE), is aimed at curbing all "indecent" and "harassing" communications over the telephone or any other communications device, which includes online services and the Internet.

It's not limited to keeping the individual who "makes, transmits or otherwise makes available any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent" in line. It also intends to hold responsible any person or service who knowingly allows its facilities to be used to transmit the material. The hefty penalties included in the amendment include jail terms of up to two years and fines of up to $100,000.

The scary part here is that the Senate Commerce Committee has already voted to approve the proposal. And while it still has to jump through many more political hoops, it has received a decent level of bipartisan support so far.

Now, I'm not a lawyer and many legal and political types with far more technical knowledge than I have attacked this, but I offer the layman's view of what's going on.

One of the first points to note here is that exactly what's obscene has never been clearly defined. The most recent case in which the U.S. Supreme Court tackled the issue was Miller vs. California, which was taken up more than 20 years ago. That decision amounted to a cop-out, in my humble opinion, since the Court merely said that material does not have to be "utterly without redeeming social value" to be considered obscene, and obscenity was defined as material that is "patently offensive."

Get it?

In order for it to be offensive, it has to offend you.

Well that settles it quite nicely. In addition, the Court in that case said it is impossible to set a national standard for what is obscene, so it left it up to local governmental bodies to decide. In other words, "we don't know, but perhaps the small-town folks can figure it out for themselves."

That model opened the door to idiotic prosecution of various mail-order porn merchants, particularly in the home video portion of the business. The method is simple -- find some bible-thumping hamlet in Alabama, from there order something hard-core from a place in L.A., and then prosecute, where the locals will most likely find the material indecent.

It seems to me that violates the spirit of the Court's lame decision. If it wasn't meant to set a standard, at least it was meant for each community to take care of itself. I doubt it was intended to be a secret weapon for puritans and thought police.

One of the more frightening aspects of the situation is that Senator Exon, the lawmaker, apparently doesn't even understand exactly what he governs when it comes to online services.