ARTS & FARCES internet

The First Amendment took a major hit in the US House of Representatives today as that once-august body overwhelmingly passed H.R.310, the Broadcast Decency Enforcement Act of 2005. I’m especially disappointed that my own Representative, Betty McCollum (D-Minnesota) voted in favor of this travesty, and I’d like an explanation.

The legislation has three main components:

1. Raises the maximum penalty for indecent broadcasts from US$32,500 to US$500,000 per violation;
2. Expands the FCC’s authority to fine individuals—not just license holders—responsible for indecency
3. Institutes a sort of three-strikes penalty that requires the FCC to initiate license revocation proceedings against a broadcaster that has been fined three times.

Ill-conceived legislation like this prevents the creatives in the culture from producing quality work and simultaneously revokes the citizenry’s right to choose which works to peruse. Even the arch-conservative Heritage Foundation opposed the resolution.

The Senate’s version of the legislation—S.193—ups the ante by raising the indecency stakes to US$3 million.

Remember that something doesn’t have to be obscene to be found indecent, just merely offensive or inappropriate will do, or as the FCC makes crystal clear, indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” The basic rule of thumb is that screwing, crapping, and peeing are off limits; the most bloody killing imaginable is hunky-dory.

In what is almost certainly the most alarming editorial I’ve ever seen and ever hope to see in my lifetime, the New York Sun is calling for peace demonstrators to be monitored so they can eventually be tried for treason under Article III of the U.S. Constitution.

That’s right, treason.

The conservative daily broadsheet started publishing last year and in a 6 February editorial called for New York City officials to obstruct a scheduled 15 February peace demonstration.

Earlier this week, a three-judge panel led by Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit overturned the law requiring libraries to filter Internet content for material harmful to minors. Judge Becker, a Reagan appointee, found that the filtering technology blocks so much unobjectionable material so as to violate the First Amendment rights of library patrons.

The law that was overturned, the Children’s Internet Protection Act of 2001 (CIPA), was the third effort by U.S. legislators to prevent children from viewing pornography and other harmful material on the Internet. Libraries and schools that failed to comply with the filtering law would lose federal subsidies used to finance Internet access.

Too bad there’s not a three-strikes provision for censorship laws in the United States.

Unsolicited bulk email (”spam”) is not protected by the First Amendment, although it may not be long until it is. Last month a court struck down the federal “junk fax” law, and the Supreme Court struck down a federal law prohibiting pharmacies from advertising “mixed-to-order” drugs, for example. Both of these cases indicate that a corporation’s “right” to market trumps the government’s interest in protecting the citizenry.

A disturbing trend in constitutional law—led primarily by conservatives like Supreme Court Justice Clarence Thomas—is to blur the line between commercial (unprotected) and noncommercial (protected) speech, as Adam Cohen points out in a New York Times editorial published last Sunday.

Until relatively recently, commercial speech enjoyed no First Amendment protection at all. Cohen cites a 1942 case where an owner of a former Navy submarine was prohibited from distributing advertising flyers because the flyers littered the streets. The Supreme Court’s decision in the case was clear: “purely commercial advertising” is not protected by the Constitution.

Since then, the Supreme Court’s absolutist position with regard to commercial speech has moderated. Courts now regularly assess the value of commercial speech in arenas such as false or misleading product claims.

Lately, Cohen notes, corporations have begun pressing equal protection for advertising under the First Amendment. The result would be that advertisements would be afforded the same protections as political speech.

Highly recommended.

Are there limits to free speech in a democracy? Of course there are. We all know that you can’t for example, shout “FIRE!” in a crowded theater.

In early February 1999, a federal jury in Portland, Oregon ordered the creators of a Web site to pay US$500,000 in compensatory damages and US$106.5 million in punitive damages to victims of deadly threats published by the Web site. Ironically, the creator of the Web site, Otis O’Neal Horsley Jr. was not named as a defendant in the case, even though he took full responsibility for the content of the site during the trial.

The anti-abortion Web site, The Nuremberg Files contained a series of American frontier-style “wanted” posters listing the names and pictures of abortion providers, accusing them of “crimes against humanity.” At least seven abortion clinic employees have been killed and more than 250 clinic bombings and arsons have been reported in the last few years.

While the 14 defendants argued that nothing on the Web site advocated violence, the contested material included names, addresses, and license-plate numbers of abortion providers and their families. When a listed provider is killed, the Web site displays a line drawn through the provider’s name. When a listed provider is wounded, the Web site displays the name in gray.