A Brief Analysis of the Communications Indecency Act of 1995

This page has been accessed times since it was established in January 1996. The page was last updated 12 February 1996.

What the Communications Decency Act Does

It is difficult to piece together just what precisely has been enacted into law by this monstrosity. It amends various laws by sticking in little pieces here and there, and unless you have all the pieces, you often can't even tell what it is talking about. Here, as near as I can figure them out, are the main provisions of the indecency portion of the bill.

Section 502: No Indecency for the Kiddies . . .

The main problem child is Section 502. Its provisions:
  1. You can't send indecent material to people under the age of 18.
  2. You can't make available indecent material in such a way that people under the age of 18 can access it (i.e., on a WWW site or a usenet newsgroup).
  3. You can't advertise the existence of indecent material that is available to people under the age of 18.
  4. Internet Service Providers cannot knowingly allow their equipment to be used to do #1, #2, or #3 (ISPs are off the hook if they don't know about it).
What is indecent material? It is anything that depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. This is vague on the one hand and very general on the other. It could include everything from the seven dirty words to medical writings about sexual or excretory functions to certain passages in the Bible.

Specifically, since 1987 the FCC has deemed as indecent "all explicit references to such things as masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles." [Note that this list itself is undoubtedly indecent. However in the interest of clarity I guess I'll take my chances with the prosecutor.]

Section 507: And No Obscenity for Their Daddies

In addition to Section 502, whose provisions I just outlined, there is another, less known part of the bill that applies to the internet. Section 507 specifies that:
  1. You can't post obscene, lewd, lascivious, filthy, or indecent material.
  2. You can't view obscene, lewd, lascivious, filthy, or indecent material.
  3. You can't post material telling, directly or indirectly, how or where to get an abortion.
Although Section 507 looks worse, its end effect will probably be less. #3 will certainly be overturned and in #1 and #2, judges have officially decided to read "or" as "and" (judges apparently go to a different grammar school than the rest of us and it seems they have a policy of adopting an interpretation of a law that makes it constitutional, even if that interpretation seems a stretch by normal-person standards ). So #1 and #2 are basically restrict "obscene" material only.

#3 has abortion rights activists in an uproar; a suit has already been filed and the Justice Department has promised not to prosecute until the suit is settled.

Thus the final effect of Section 507 will certainly be:

  1. You can't post obscene material.
  2. You can't view obscene material.
This is nice, but irrelevant. Obscene material was prohibited already, in any form.

And that, my dear readers, is the Communications Decency Act (CDA) in a nutshell.

Know Your Indecency . . .

I have written a detailed analysis of the CDA, including the full text of the relevant portions of the law, and my opinion as to how these laws will affect the internet. In some instances where the CDA amends a current law, I have taken the trouble to look up the law that was amended and show you how the amendations affect the law in context, so reading this may be even more informative than reading the actual text passed by congress (not that I'm prejudiced against Congress and their ultra-clear way of writing, or anything . . . ). You can jump immediately to any of these sections of the analysis:

CPSR also has a briefer analysis of the bill as does the CDT. The legally inclined can read the full text of the bill that was passed. David Heise has a nice summary of what the bill prohibits and what will be its effect on universities using the internet, and the New York Times printed an editorial decrying the overly broad nature of the CDA.

The Cato Institute has a fine analysis of the whole indecency/obscenity issue. It covers the history of censorship in the U.S. including judicial decisions, legislative efforts to control expression, and the regulatory maze that has ensued.

Harry Erwin has powerfully expressed his views about why the CDA was passed and whether we should protest against it.

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