I Know It When I See It

Perhaps no other utterance truly captures the crux of the debate over what obscenity is better than Justice Stewart Potter's: I know it when I see it.

When President Bill Clinton signed the Telecommunications Bill of 1995 into law on Feb. 8, he lit a match beneath the First Amendment. Most of the bill is deregulation material for the telecommunications industry but the stinger of the scorpion is anatomically correct: They stuck the poison right at the end.

The Communications Decency Act was added as an amendment to the Telecommunications Bill in March of 1995. It outlaws providing "obscene, indecent, lewd or lascivious" material to people under the age of 18.

University Computing will know in about a month how this will affect its services to students. Currently, nothing is different on the system. Eventually, some Usenet groups or Web pages may have to be shut down or monitored, in theory, because some places may contain dirty words.

However, therein lies the problem with government defining what is obscene and indecent. Robert Corn-Revere of the Cato Institute suggests thinking of indecency as "obscenity lite." In the meantime, sociologists, psychologists, doctors and womenıs rights groups may be censored because breasts, abortion and other bodily functions have slang words which fall under the de facto standard, George Carlin's "Seven Dirty Words," which "will curve your spine, grow hair on your hands and maybe, even bring us, God help us, peace without honor."

During the 1980's the FCC attempted to find a policy which would clean up the air waves. Every time it tried to, the District of Colombia Court of Appeals shot it down.

First it tried to find a "Safe Harbor" for children between six a.m. and midnight. Congress intervened before the policy was in effect and banned indecency altogether. The courts struck down that legislation in Action for Children's Television v. FCC, writing, "neither the Commission's action prohibiting the broadcasting of indecent material, nor the congressional mandate that prompted it, can pass constitutional muster under the law of this circuit."

The most likely result of this new legislation will be that the government will impose the Federal Communications Commission v. Pacifica Foundation statute.

A Pacifica-owned station ran a program about language, including George Carlin's monologue. Before the program, they ran spots informing the audience that some sensibilities might be offended.

In a second case, the Pacifica-owned radio station in New York informed the commission that it intended to transmit a program of "substantial literary and cultural value" at 11 p.m. on June 16, 1987. The station ran intermittent announcements which stated that the program contained material that may offend some listeners.

The FCC advised against the broadcast, but could not bar them from airing the program because indecent speech is protected by the First Amendment. The FCC said the station would have to decide on its own whether or not to air the program.

However, those warnings were inadequate, according to the FCC. People tune in and out of radio, and may flip the switch to find themselves in the middle of George Carlin saying "Fuck," as listening to the radio and watching TV lend themselves to frequent channel-changing.

Obscenity
In the late 1800s, Anthony Comstock, president of the New York Society for the Suppression of Vice, began a crusade to, well, suppress vice. In particular, he took several book publishers to court citing a number of passages from books such as Lady Chatterly's Lover and Ulysses.

The courts decided that these books were obscene. They had absolutely no redeeming social importance and therefore should not be printed. The basis for this decision is Regina v. Hicklin, a British case which states that the yardstick for measuring obscenity was the weakest elements of society: young or immature persons.

Only passages, taken out of context, were read without the work as a whole being taken into account.

Finally, in 1932, Random House Publishers decided to go out on a limb and print James Joyce's Ulysses. Random House pressed the point that the courts must view the book as a whole and not pass judgement on a selected passage. As well, the yardstick for measuring the sensibilities of America should be the average Joe. The courts overturned earlier decisions and agreed with Random House.

Paradox of Obscenity
Robert Corn-Revere of the Cato Institute points out the inherent paradox of the current indecency law: While indecent speech is protected, it is subject to the same rules which applied to obscenity during the Comstock years. Instead of gauging offensiveness on the average listener, it is gauged on children.

The irony of this legislation is that it is impossible to enforce. There is no way to keep the Internet restrained. There are ways to keep children from seeing that which parents do not want them to see. Numerous software applications and on-line services have already implemented safeguards. America Online allows only the person who signed up for the service turn on features like Usenet. Programs such as Surfwatch allow parents to turn off access to nodes which they may not want their children to visit.

Legislators seem to be unaware of the complexity presented in the Internet. The Net is international and it is unlikely that this bill has the power to be so encompassing. Who would want it?

Second, with regards to email, there is no way of scanning messages for dirty words and suggestive meaning. There are simply too many ways of getting around the bill. Spell the word "fuk" or simply encrypt the whole message using shareware encryption programs.

Third, this isn't radio or television. There are many different ways of communicating over the Internet and new technologies pop up everyday.

System administrators, who will ultimately be saddled with the job of weeding out the obscenity, are none too happy with that task. Why bother? Just cancel the Internet.

Miscellaneous

The Communications Decency Act is only one small amendment to this bill. Other problems exist elsewhere:

• The V-Chip (V is for Violence)
  This chip was designed to block out television which carries with it a V-rating. The FCC determines which programs will carry the V-rating then automatically it is entered into the broadcast. Whenever the chip receives that particular transmission, it shuts down access to that channel until such time as the violence is off the T.V. In my house, we used to call it the remote controlŠ

  Supreme Court Justice Warren Burger, during the 1940s, became irate at what he saw the Supreme Court becoming: A censor board. He determined that it was essentially illegal for a court to be the judge of what is obscene and indecent. It must be up to the local community to establish moral standards, or so the courts say. O.K.

  There cannot be "fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive,'" wrote the court. However, they have given the authority to the five-member FCC board to do exactly that. Whose tremendous record does not inspire confidence.

• Monopoly isn't just a game anymore.
  President Teddy Roosevelt is turning over in his grave because in the quest to expand telecommunications in the U.S., Congress has opened a legal loophole for one company to have a monopoly on media in a particular market.

  Imagine this scenario: You love U.S. West. Everyone does. Imagine them owning your phone company, TV station, radio station, newspaper, magazine, and internet provider. Scared, yet?

  This verticle reorganization of media in America will kill small businesses and independent media. No matter how incredible of an innovation John Q. Scientist comes up with and applies to business, megacorporations will always be able to undercut him.

  Of course, this doesnıt prevent him from selling his genius to the company, leaving the town back at square one with a monopoly on the media.

  There have already been several instances of media monopolies in the last several years: GE purchasing NBC, Westinghouse purchasing CBS, and ABC merging with Disney.

  During an interview on Good Morning, America, a morning show on ABC, a host was asked what he thought of the merger.

  "I never thought I would be working for a giant mouse," he answered. Michael Eisner, chairman of Disney, who was a guest that morning, did not seem amused.

  Maybe William Gibson and the whole Cyberpunk vision is correct. Maybe megacorps will rule the earth eventually.

  This law is so uncalled for, so utterly ridiculous in scope that it boggles the mind. Government never seems to learn that you just canıt legislate morality and shouldnıt try.

  The Internet is an expanding media and should be allowed to cut as wide a path as possible without stepping on too many toes.

  On the other hand, there is no possible reason to allow anti-monopoly laws to go by the wayside just so Farmer Ed in Montana can email Farmer Joe in Iowa a little cheaper.

  Thomas Schoenborn is to one degree or another in charge of the Oregon Commentator