Monday, April 7, 1997

Virginia Postrel, Editor of Reason magazine, Mike Godwin, staff counsel for Electronic Frontier, and Ned Desmond, editor, Infoseek, discuss the Communications Decency Act. Postrel, Godwin and Desmond debate the constitutionality of the law, and more broadly, what role the federal government should have in regulating the web.

Recorded on Monday, April 7, 1997

ROBINSON: Welcome to Uncommon Knowledge. I'm Peter Robinson, a fellow at the Hoover Institution. Today's show: censoring the Internet. There was time when what parents didn't want their children to see was this: a magazine in a brown paper wrapper. Pornography in those days came with a stigma attached; it was illicit, it was seedy, and it was difficult to get. Today? Today, what millions of parents are afraid of is this: a little mouse, a little mouse attached to a middle-sized computer, which in turn is attached to the gigantic new medium of the Internet, a medium that grants access to an astounding array of information and also to hard-core pornography. All, just a click away. Last year, Congress attempted to do something about porn on the Net by passing the Communications Decency Act. The act makes it a felony knowingly to transmit indecent material over the Internet where youngsters may see it. The Supreme Court is now considering the constitutionality of the act.

With us today: Virginia Postrel, editor of Reason magazine; Mike Godwin, staff counsel for the Electronic Frontier Foundation; and Ned Desmond, editor at Infoseek, an Internet search engine and news service. We talked about the Communications Decency Act, and we talked about the wider question of what role the government should have, if any, in regulating the Internet, now that the high technology "cat" is out of the bag. In other words, can the cat--or in this case, the mouse--be put back into the bag?


ROBINSON: It's pretty clear that there's a lot of disturbing stuff on the web and that tens of thousands, hundreds of thousands, millions of Americans are upset about it in one way or another. More or less informed, we don't know, but they're upset about it. And last year Congress tried to do something about it with the Communications Decency Act. So, let's talk for a moment about that act. Can you define it in a tight couple of sentences, what the act attempted to do?

POSTREL: It attempted to apply to the Internet the standard that has been applied over the years to broadcasting, to treat computer communications as though it were radio or television. That's when I say--that's what it attempted to do; you know, who knows? What it basically says is that, if Reason magazine runs, as we did, a review of Howard Stern's best-selling book and quotes, as we did, long passages from it, I could go to jail.

ROBINSON: Because Reason magazine is available not only in paper form but on the web.

POSTREL: On the web. Right.

ROBINSON: Okay, and so it says that the provision of indecent material in such a way that it is available for people under 18 years of age becomes illegal.

POSTREL: Even if it is--now, Mike can correct me on this, but this is the extreme read--even if it is in the context of a serious political magazine like Reason, because this is indecent speech. It has four-letter words.

GODWIN: The statute actually says--it actually is quite tricky on this--it says that indecency is defined in terms of something that is patently offensive in context. Well, that's not a legal term of [inaudible] either, and the problem is, if you're a parent or if you're a child or if you're a policymaker or the sheriff, you don't know what "in context" means.

ROBINSON: Hang on one second. Let me go around the table. You're opposed to the Communications Decency Act?


ROBINSON: Opposed?

GODWIN: My name's on the court case, so I think I'm opposed. I stand against it.

ROBINSON: You're publicly, vociferously opposed--in detail. Ned?

DESMOND: I'm opposed because I think it's bad law, but it's going after the right issue.

ROBINSON: Ah, okay. Let's talk for a moment about the law, and then I'd like to get to the principles underlying it. Now, Mike, what's your argument?

GODWIN: We already have laws against obscenity. We already have, in fact, an obscenities scheme that--for all that civil libertarians like me complain about it--in fact, it's been a fairly stable body of law for a couple of decades, and everybody knows what that means. It's defined in terms of the level of community standards as patently offensive and it appeals to the prurient interest. It's hard core stuff.

ROBINSON: And it has absolutely no content whatsoever.

GODWIN: It has no serious--

ROBINSON: Because of the way the Supreme Court has whittled it away over the last thirty years.

GODWIN: Well, now, that's not true.

ROBINSON: Let me give you an illustration. See how you respond to this. Norman Podhoretz writes in the most recent Commentary that when he was in Salt Lake City recently he found porn available in a store directly across from the Mormon tabernacle. Now, if, across the street from the Mormon tabernacle, in Salt Lake City, there's porn available, then that's pretty good proof that it's virtually impossible to impose community standards.

GODWIN: Oh, it was ever thus. I mean it's always been the case that you could acquire more in your community than was ever prosecuted, but that's never been the issue. You can acquire more marijuana in your community than is legal, too.

ROBINSON: The law is on the books but it's toothless.

GODWIN: No, that's not at all true. There's a bulletin board system--not even a web site, just a computer bulletin board system--that operated a few miles from here, from where we are now. It was prosecuted in Tennessee. Here we are in California; it was prosecuted in Tennessee. That case, though they appealed it and they raised every possible objection to their being prosecuted in a remote jurisdiction, they lost all the way down the line. So, to say that it's toothless, when you can actually ship people from one state to another--

ROBINSON: Let me put it this way. My view of it would be, in the past thirty years, we've seen--there's just no question that up until the 1950s or 1960s, to get pornography you'd get the stuff in the brown paper wrapper. It was seedy. It was slightly difficult to do. And in the past thirty years, it has become utterly commonplace. And so, the law may have one or two teeth left--would be my view--but if you get one prosecution in Alabama and one prosecution in Tennessee in the face of an overwhelming flood of this stuff, the laws are not good enough.

DESMOND: I think the core issue is that the Internet is a new form of delivery system. It makes a lot of things accessible in a way that they've never been accessible before, and what the law was trying to react to, and they failed badly--

ROBINSON: The Communications Decency Act?

DESMOND: Yeah, [what it] was trying to react to is that a lot of people are quite shocked that a click away is all of this pornography on the web. How much there is--I don't know. I don't think it's relevant how much there is. It's going to be out there. It's going to be there regardless. It's going to be in hotel rooms. But the point is, it's so accessible, and people don't understand the mechanisms. They don't understand why it suddenly comes into their face. And to say, as the law does, that censorship should be imposed is probably not workable and it's not the right idea.

POSTREL: To have it come into your face, though, you have to look openly for it.

DESMOND: No, but it does. Look, you can search, if you search on a whole lot of innocent terms on Yahoo!, you get an ad for Amateur.com and you're one click away from a very hard-core porn site.

GODWIN: But the government tried to demonstrate that, in fact, in Philadelphia. They tried to demonstrate this kind of problem of accidental encounters of pornography. It seems to be very difficult to stage for a court. In fact, when the computer is there in the courtroom and you're trying to have the government witness punch his way into this site or that site, what you find is, number one, it's difficult for him to do it and, number two, if you have any kind of filtering software at all, the percentage of hits goes down. So the question is--

ROBINSON: A government lawyer doesn't have half the expertise of a seventeen-year-old male.

GODWIN: You're referred to two problems, and this is very important. This is very important. You have the issue of passive exposure, and maybe that's a problem. And you have the issue of someone seeking out the porn, and that may be a problem, too. As far as the passive exposure issue goes, technically it is already solved. As far as the issue of your child--

ROBINSON: Whoa, wait--how is it solved? How is it solved?

GODWIN: You can do it through software, and not only can you do it through software, you can customize it the way it has to be--

ROBINSON: Yes, but you're saying that anybody on his own computer can do it through software.

GODWIN: No, I'm not saying that; in fact, you can't. I'll say a little bit more--

ROBINSON: You're saying the government can do it through software?

GODWIN: Everybody can do it through software.

ROBINSON: Impose standards on the whole Internet?

GODWIN: Everybody can do it through software. This is important to understand. When the government does it, they're imposing a standard on constitutionally protected speech, when we're talking about the Communications Decency Act. You're not imposing it on obscenity; you're imposing it on speech that has value, that is protected speech, that will not get you arrested and sent to prison for two years if you say it on the street. If you are worried about your child seeking out the material, no technological solution is a fix. Only teaching values is a fix.

ROBINSON: Mike's the lawyer here. I want to know on precisely what grounds he opposes the act.


ROBINSON: Draw this distinction for us between indecency on the one hand and obscenity on the other. Just clear that up if you would.

GODWIN: I'd love it if the Supreme Court would, because indecency has never been defined by the Supreme Court, not once, not in any case, not ever. In the one case in which the concept--

ROBINSON: So, your objection to the Communications Decency Act is that it tries to eliminate indecency, which has never been legally defined.

GODWIN: That's right.

ROBINSON: That's the legal objections.

GODWIN: That's a fundamental one.

ROBINSON: And you'd object on those grounds as well?

POSTREL: It certainly is the case that it is much more difficult today, partly because of the Internet, to protect a child from seeing and being exposed to things other than those which express the parents' values. However, it is foolish to limit that to sex. There is political speech that undermines parents' values; there is religious speech that undermines parents' values, significantly, far more significantly than seeing some dirty pictures. There is any number of kinds of intellectual discourse, all kinds. If you are a devoutly religious Catholic, let's say, and your child is surfing around the net, and comes upon an evangelical web site that attacks Catholicism, that raises issues that you as a parent have to deal with, just as you have to deal with issues about teaching your children about sex. Yet, we allow freedom of religious expression, because we decided that that is not a ruling that should be made centrally by the power of the state.

ROBINSON: Hang on one second. Now, Robert Bork, failed nominee to the Supreme Court but a pretty bright guy, makes the following argument: that what is distinctive about speech is that it conveys ideas; pornography does not. It is intended to arouse, it appeals to the emotions, and so forth. So that what you're saying is that there are all kinds of speech that may be pernicious, that may undermine my values as a parent and so forth, but I as a parent am powerless to anything about that because it is clearly protected by the First Amendment and the Supreme Court has so held throughout our history. Fine. I as a parent am also irritated--more than irritated, outraged--by garbage, all kinds of places in the culture. One place is the web, but that isn't or shouldn't be protected by the constitution. So, that we can eliminate, that we can work against.

GODWIN: Why pick the web? B. Dalton's bookstores have plenty of stuff that's indecent. I mean, I don't see why you're stopping at the web. You should walk into the chain bookstores. I'm not talking about dirty bookstores. I'm talking about the standard ones that are in every mall. Because you can find--that's where I first saw Madonna's Sex being sold.

ROBINSON: You'd be opposed to censorship of any kind?

POSTREL: I am opposed to censorship of any kind.

ROBINSON: Of any kind whatsoever?

POSTREL: Of any kind whatsoever. Except for, if in the making of whatever it is, there was either child abuse involved or physical coercion of adults involved--I mean, that sort of thing.

DESMOND: Do you object to existing obscenity laws?

POSTREL: I do, yes.

ROBINSON: You object to existing obscenity laws?

POSTREL: Yes, I do. But I think that they are irrelevant to this. This discussion has been--we have passed a law against indecency by talking about obscenity, and that is not legitimate. I mean, I may be opposed to obscenity laws, but that's not what this is about.

ROBINSON: We can all agree that the Communications Decency Act, as written, is bad law. Right, everybody at this table agrees to that. Fine, now let me go on . . . .


ROBINSON: Now, I want to get at the fundamentals. What is protected speech and what is not? Do you believe in any limits to the free exchange of goods and ideas in the market place?

GODWIN: I think fraud's a good idea. I think misrepresentation ought to be policeable, either civilly or criminally. In fact, I don't think perjury in courtrooms is a good idea; I think we can punish that. There are all sorts of things, I think, that are bad speech, that are punishable. But the notion that ideas, because ideas can cause people to think badly or act badly--

ROBINSON: No, no. Not ideas--dirty pictures. Ideas is a completely separate realm.

GODWIN: If you think it's a given, then we just shut the brake down now, but, in fact, one of the things that we know is that the arts express lots of ideas in sexual terms. In fact, when you were saying something about the First Amendment protecting ideas--

ROBINSON: There's no such thing as trash?

GODWIN: I kept thinking about William Shakespeare's sonnets. You know, what they aren't is political discourse. They're something else. They're not political speech, and yet there's no doubt that every sonnet is protected by the First Amendment.

ROBINSON: You believe that American democracy is such a blunt instrument, that we're incapable of drawing distinctions between William Shakespeare's sonnets and Hustler magazine? I think that's a distinction--

GODWIN: I think, if you want a strawman, he was going to sit here, but I wasn't going to actually fill that position.

ROBINSON: That's too fine-grained a distinction for this government to make?

GODWIN: I make critical judgments all the time, but Congress are not the best literary critics.

POSTREL: Yeah, I don't want Congress making those distinctions. I can make distinctions, and I would make different distinctions from ones that other people would make.

ROBINSON: You believe Congress is incapable of making these distinctions?

DESMOND: I think there are two issues here, one that will never go away, which is where the American political order cares to draw the line on these things, and it's across all mediums, it's going to involve courts.

ROBINSON: But Mike and Virginia are saying that no line should ever be drawn.

POSTREL: That's not exactly what we're saying, but--

ROBINSON: That's exactly what you're saying. You're opposed to censorship of any kind in any time.

POSTREL: I'm opposed to censorship by government, by the use of force by the state.

GODWIN: It's precisely because ideas have power that we allow freedom of speech.

ROBINSON: And the second issue is?

DESMOND: And the second issue is the Internet and why are people so upset about this and what is it that drives them crazy? And, really, you have two positions. You have the EFF's view, which is that people should protect themselves electronically.


GODWIN: Electronic Frontier Foundation. We're a public interest civil liberties group.

ROBINSON: It's called the Electronic Frontier Foundation?

GODWIN: That's right. We deal with civil liberties on the Net.

DESMOND: And they've taken a very thoughtful approach, which is, sure, some people don't want to see this, so they should take matters into their own hands and buy a piece of software that inhibits access to it, but not perfectly, I don't think, not yet. It's impossible for it to be perfect, but then maybe it doesn't need to be perfect, maybe it just needs to be basically all right.

GODWIN: Well, our public policy has been in terms of--

DESMOND: And then on the other side is this law, which is a very blunt, crude, ineffective instrument, which has been written badly and tries to get the government into a role that it probably can't execute well. But the problem is, where the EFF is concerned or that view of how to protect yourself, is it sounds like a protection racket. Why should I have to buy software to prevent people in my house from having accidental encounters with--not Playboy, because Playboy's relatively responsible and they have a very high barrier to entry into their site--

GODWIN: That's a very good question: Why should I have to?

DESMOND: Or a lot of other sites which are now using adult certification in order to get into the site. Those are great. I think that's a smart move on the part of those sites, but there's still this huge number of porn sites out there that are doing the opposite.

POSTREL: You asked, "Is there such a thing of trash?" And I would say that, yes, there is, there is trash. There is trash, and that's different from dangerous, serious stuff. But the real question is--

ROBINSON: Now, let me ask a second question.

POSTREL: --Should the power of the state, should Orrin Hatch, decide what's trash or not? Or whomever.

ROBINSON: Nobody suggests that Orrin Hatch--

POSTREL: Well, I just pick him because he's--

DESMOND: The real question is, Should there be legislation that requires certain kinds of sites to put up barriers of entry to getting into them? I think that's the real question. And what should the barrier of entry be? Should it be based on age? You know, what is a responsible approach on the part of a context like that--

GODWIN: That actually is not the question, because those laws are actually already in place. In every jurisdiction that I know of there are laws that prevent material that is obscene as to minors being accessible to minors. You can go to prison in any state.

DESMOND: As a practical matter, there may be a few test cases out there, but it's not having any impact on the behavior of sites on the web.

GODWIN: So, the question then becomes what the incremental, additional value of something following the Communications Decency Act will be. It is not the case that we are dealing in a vacuum here. These laws predate this medium, and in fact they were not medium specific.

ROBINSON: So, it's okay for individuals to censor porn but not the government? How come?


ROBINSON: There's trash. We can agree there's trash. There may be little problems of definition here and there. You may draw this circle for trash and mine may be this and this, but, lo and behold, we'll all agree on a little something that's trash. What is wrong with, through the usual apparatus of democracy, the American public outlawing this stuff?

POSTREL: Well, there are any number of things wrong with it. One is that I'm not sure that we would all agree on a little circle. Perhaps what is now defined as obscenity, perhaps--

ROBINSON: We've lived with censorship laws for a hundred and seventy-five years of this nation's existence--

POSTREL: Yeah, well, we lived with Jim Crow laws, too. I mean, I hate to use that example, because of students who've always used it.

ROBINSON: So, censorship was wrong? Everything in the first hundred and seventy-five years of the country's history was wrong?

POSTREL: Censorship was wrong. Yes. Censorship was wrong.

ROBINSON: So, censorship is immoral? You make a moral point?

POSTREL: I make a moral point, among other points.

ROBINSON: It's wrong in and of itself. Okay, so, that's your answer. Now, what's your answer?

GODWIN: It is not the case that we've had censorship, at least of that kind of material, for a hundred and seventy-five years. As Justice Douglas, the sainted Douglas Justice, pointed out in his dissent in Miller v. California, in fact, the laws that we now term the obscenity laws originally at the beginning of the nineteenth century were not there.

ROBINSON: The legal basis for censorship certainly shifted. There's no question about that. But this material was not available, partly for legal reasons and partly for social reasons.

POSTREL: Censorship is the norm throughout human history.

ROBINSON: But it's immoral, according to Virginia Postrel. And what is your--

POSTREL: And is partly immoral because it imposes one set of tastes and knowledge on everyone.

ROBINSON: I'm just trying to get back to what I take to be the impulse behind the Communications Decency Act, which, however, we've already agreed is lousy legislation. The impulse strikes me as a pretty modest one. There's a lot of stuff on the web which is garbage, which has virtually no redeeming value, and that kids can get to and that parents recognize, as a matter of fact and practice, the kids will get to. So, please give us a little help. Now, is that such an outrageous position?

DESMOND: I think that's the core of the question--

ROBINSON: Okay, then, how would you answer the question?

DESMOND: --and then parsing it from there is the hard part. I have a hard time believing that you guys don't know what hard-core porn looks like on the Internet. I mean, it's almost impossible to avoid.

GODWIN: I've never run into it.

DESMOND: Oh, come on, Mike.

GODWIN: I have never run into it. I'm not making this up.

POSTREL: I'm sure it's easy to find. I don't disagree with that, but this idea that it's like constantly in your face is just not my experience. Now that may have to do with--or that it's like ever in your face--but maybe it's--

DESMOND: It's not constantly in your face, but the difference is that there's a change in the way you get to it. There was a time before the Internet where you could see these things if you paid for them in an hotel room, if you rented a video, or if you were tall enough to reach up to the back of the rack in a magazine store.

POSTREL: That's why he doesn't like all those things.

DESMOND: I think people are upset because now there's an entirely new, much easier way to get to it. And it's perfectly reasonable to say that, if you don't want to get to it, you don't have to go to it. That's okay. But what's interesting to me--and I'm not arguing in favor of censorship. I think censorship is a question it would be best if this discussion could defer. But if there were a way to say to these sites that, you know, that you have to make a barrier to entry, because even if they're behaving well, they turn up all over the place because of the way search engines and directories work. Because we've got dozens of complaints daily from people who bump into these things, and they blame search engines, for instance, for directing them to them to them inadvertently.

ROBINSON: Who gets to tell them to erect a barrier to entry? You're saying Congress gets to enact legislation?

DESMOND: Well, I don't know. Maybe that's an interesting wrinkle to this thing.

GODWIN: If Congress imposes that barrier of entry--

DESMOND: There's already an adult chamber of commerce, which is asking these sites to put up barriers of entry.

GODWIN: It's important to understand what happens here. If you put up a barrier of entry, if Congress imposes a barrier to entry requirement on the adult service providers--most of them, in fact, already have barriers of entry--but if it does that, what it does is that it makes the Internet safe for commercial pornographers, because they know that, if they obey the rules, they're safe from prosecution. If they put up a credit card identification, if they have everything in place, they spend the money to--

POSTREL: So, why not do it?

GODWIN: They do it already. Playboy--

DESMOND: The big commercial sites already do it.

GODWIN: The big commercial sites. In fact, the little ones get cross here. This is not about commercial speech. In fact, this is one of the things . . .

ROBINSON: Let me bring it back one more time to what the government should or shouldn't do to protect kids. This time, let me try putting the question a different way.


ROBINSON: I will now take, particularly Mike and Virginia and, to some extent, Ned as exemplars of the new culture, the web culture, the silicon valley culture, and it's clear that you guys are just not going to go for censorship, full stop. I think we've teased that much out in this discussion. Let me ask, is there some way for the industry itself to come up with standards of some kind?

POSTREL: Well, I think if people who are in favor of censorship would stop pooh-poohing them, that all these various kinds of software screening programs, this could be much more powerful than anything the government can do, because it can be tailored. Many parents who would support the Communications Decency Act do not want their children exposed to perfectly non-obscene or [non-]indecent speech about homosexuality that casts it in a good light. They don't want them to see--

ROBINSON: The gay culture.

POSTREL: The gay culture. And I'm not talking about anything, but--

DESMOND: But their apprehensions aren't limited to the net at all.

GODWIN: Exactly.

POSTREL: Well, now, I'm saying, Des, this is--and the same thing they would want to keep their kids away from books or whatever, not necessarily using the power of government, possibly, possibly not. Well, you can buy software that does that. Now, some people who take more of a gay rights approach are appalled by this.

GODWIN: I want to say something about your question, which I thought was great. Your question was really great, because don't you think the industry, what could the industry--you are the industry now, you're the content provider now on the web. The thing about the net is that it's disintermediary communications. You don't have an editor standing between you and your audience. You are the industry. You want to set standards? Set the standards.

ROBINSON: Here we have it nicely lined up. This is a new world, the web. Certainly, according to you guys, this is a new world that deserves to be treated differently, quite apart from the questions of censorship, and one approach is for parents to go out and buy their own software which solves--now here comes the question--that solves the problem for my kids, but--and here we draw the analogy to pollution--you might say, "Well, if you don't like pollution, don't put up a smokestack in your back yard." But, of course, that isn't the point at all. Somebody else's smokestack pollutes the entire environment. And I've got little kids, and Ned has little kids, you have bigger kid--we all have to live in an environment in which others are imbibing a lot of garbage and, if we believe that culture has any effect on people at all, we have to believe that it coarsens their judgment, debases the society, and so forth. So, let me come at this question one more time. You're quite content to say that anybody can put anything he wants on the web; and parents can darn well go out and buy their own software and solve the problem for their own kids in their own house, but that's it. Would that be your position, Mike?

GODWIN: No, I actually have the values of the culture as a primary concern, because I keep thinking that pluralism is one of the values of our culture. I keep thinking we subscribe to the notion that we tolerate a lot of divergence of opinion about a lot of issues. We all believe in that. That's the thing we share. That's built into the Constitution. That's the thing that, even if I have a different religion from you or I'm of a different political party from you, I believe that you--

ROBINSON: [inaudible]

POSTREL: You cannot censor and say--

GODWIN: You can't dismiss pluralism. You can't--

ROBINSON: Of course, I'm not going to dismiss pluralism, but dirty pictures aren't pluralism!

POSTREL: You can't sit there and say--maybe you can because you're the incredible agnostic of all time--you can't sit there and say that parents don't care and it doesn't affect their children and it doesn't affect out culture what people's views on religion are.

GODWIN: You can justify anything that way.

ROBINSON: I don't know what the circuit was that got from my question to that.

POSTREL: You said, this is a new world and therefore it has new rules, and then that's what we think I'm going to take issue with. But then you said, "But doesn't that affect the culture of the whole? Even if I protect my kids completely, there's an externality."

ROBINSON: Yes, exactly.

POSTREL: Well, I'm saying that's true of print, and it's not just true of sex. It's true of everything, and it's more true of ideas than it is of ideas than it is of dirty pictures. It is more true of political speech; it is more true of religious speech.

ROBINSON: Virginia Postrel, Mike Godwin, Ned Desmond--thank you very much.


ROBINSON: Shakespeare's sonnets. The Communications Decency Act. Everyone of our guests opposed it, and the Supreme Court may very well find it unconstitutional. So, the best parents can do for now is get filtering software. But the wider issues here remain profound: Will the government, should the government, regulate the Internet, which is now, as it stands, the freest medium of expression in our society? And what happens to our culture, to the moral temper of the country we pass on to our children, in the new high tech age? Stay tuned. I'm Peter Robinson. Thanks for joining us.

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