Regulating the Internet is Unconstitutional
By
Theresa A. Scribner
CIS 101
Professor Minkoff
August17, 1999
Scribner 1
Recently I purchased a computer to help me in typing my papers for school, and also to gather information off the Internet. I was curious about chat rooms, so I sat in a chat room and listened to the users conversations. Some of the conversations were inappropriate, and most contained sexual references. This was just one particular site, so I went to another site,and found it to be similar in nature. There are numerous chat rooms on the Internet, and I'm sure that some contain appropriate language, and no Sexual content.
After visiting a chat room the next day, my e-mail would be filled with messages that were pornographic. An example of the messages could range from seeing the Spice Girls naked, or pictures of other naked women. This upset me a little because I never solicited these sites in anyway shape, or form. The messages also implied I was a Lesbian, which offended me, because I'm not a Lesbian. I was shocked that total strangers, that I don't know, could send me this material, without my permission, and assume my sexual preference.
The possibility of minors being able to view pornographic sites appears to be easily accessible. Children should be protected from inappropriate language, and obscenity, but trying to define indecency, may mean different things to different
people. In trying to regulate indecency over the Internet would be difficult, and unconstitutional.
Scribner 2
In the past trying to define First Amendment rights in the case of Near v. Minnesota 283 U.S. 697 (1931), dealt with the issue of freedom of the press, and barred the government from censorship. This case also prevented interference of the
government from censorship. This case also preventing interference of the government in communication, and freedom of expression except in extreme circumstances, for example the country goes to war (Calvi & Coleman 205).
In the case of Roth v. United States, a 1957 case, dealt with mailing obscene materials such as advertisements and books. This case is just one of the cases that would attempt to equalize freedom of speech and communication against governmental interference. This particular case identified a three-prong test to be considered in an obscenity case. (1) "that the work would be judged in its entirety and not on selected portions"; (2)"that it would be examined in terms of community standards and not on its effect on one person"; (3)"that the focus would be whether it appealed to "prurient interests rather than immorality"; Other cases were to follow in defining obscenity (Calvi & Coleman 211,213).
The case of Miller v. California (1973) was the mailing of sexually explicit material in violation of a California statute. This material had not been solicited from the people who receive it. The Supreme Court found that the state could regulate
obscenity
Scribner 3
which would weaken the First Amendment right of speech and press. Under freedom of expression the First Amendment is limited. The reasoning in this case was to protect the interests of minors (Calvi & Coleman 213).
The first case in Near v. Minnesota a 1931 case that dealt with several newspapers publishing slanderous information. In Roth v U.S. and Miller v. California both cases were about obscene material being sent thru the mail. The Internet is not like the concrete world, because it's an electronic world. The Internet and postal mail are two different mediums, and the mail has been defined as far as obscenity, and indecent material. The Internet has yet to be defined.
The previous cases involved obscenity, but indecency is not defined in a statute. It is however mentioned in the statutes along the lines of indecent material. Indecent material or items do not affect the access to the Internet because it prohibits importing indecent items and sending items through the post ("Indecency" 1).
There are statutes that do apply to indecent photographs of children under the ages of sixteen on the Internet. One such statute's is the Protection of Children Act 1978 and this particular statute is concerned with indecent photographs, or false-photographs of children. It also restricts advertisers from showing, or dispensing pictures of children ("Protection of Children Act 1978").
Scribner 4
Cyberspace is accountable if it rests on your server, and it is child pornography, but what about unauthorized access or computer misuse? A recent article I came across was about a hacker, who had disrupted services at Amherst, and Harvard College. The young man had to pay for damages, and received six months in jail, he could have been sentenced to eighteen months, but the prosecution agreed to a lesser sentence.
However the young man committed unauthorized access, which means a person is guilty of an offense if he causes a computer to perform any function with intent to secure unauthorized access to any program, or data held in any computer and he knows at the time when he causes the computer to perform the function that is the case. This is known as the Computer Misuse Act 1990, which consists of three offenses (Central Maine Newspaper B6).
1. Unauthorized access to computer material
2. Unauthorized access with intent to commit or facilitate commission of further offenses
3. Unauthorized modification of computer material ("Computer Misuse Act 1990")
The young hacker stated that he was only doing to learn and not for malicious intent, yet he admitted to using abusive language, and shutting down chat rooms (Central Maine Newspapers).
Scribner 5
The Communications Decency Act of 1996 seeks to protect minors from harmful material on the Internet, and international network of computers that enables millions of people to communicate with on another in cyberspace and to access vast amounts of information around the world ("Reno v. ACLU" 1).
The Supreme Court agreed that there is a compelling interests to protect children , and to shield them from obscene, and indecent messages, but the Internet is not the same thing as placing a call, and deliberately accessing the receiver, or turning on the radio and hearing an obscene message. Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment (Legal Issues 201, 202).
On November 21st, 1998, a United States court handed down a ruling upholding the strongest constitutional protections of free expression on the Internet. A United States district court ruled, in Mainstream Loudoun, et. al. v. Board of Trustees of the Loudoun County Library, that the Loundoun County, Virginia, policy requiring filtering software in public libraries violated the First Amendment by preventing adults from using library computers to access a wide array of mainstream, constitutionally-protected materials ("EFF Statements on Loundoun" 1)
Scribner 6
The Internet is a communications device similar to a medium of television, and radio. Television and radio both are regulated, and in the future the possibility of the Internet being regulated could happen. As it stands in this time period the regulation of the Internet is Unconstitutional.
Scribner 7
Calvi, James V., Coleman, Susan. Cases
in Constitutional Law
Summaries and Critiques. Prentice Hall, Inc. 1994: pg. 205,211,213.
"EFF Statement on Loundoun Ruling." Electronic Frontier Foundation.
pg. 1. Online. Internet. 28 Jul. 1999. Available:
www.eff.org/pub/Legal/Cases?Loudoun_library/HTML/19981123_eff_statement.html
"Indecency". pg.1. Online. Internet. 4 Aug. 1999. Available: http://aranea.law.bris.as.uk.//JISC/JiscSeminar/tsld008.htm
Katsh, M. Ethan. Taking Sides. 8th Ed. Dushkin/McGraw-Hill, Guilford, Ct. 1998: pg. 201,202,203.
"Protection if Children Act 1978". pg.1. Online. Internet. 4 Aug. 1999. Available: http://aranea.law.bros.ac.uk./JISC/JiscSeminar/tsld014.htm
"Reno v. ACLU" Decision. pg.1 Online. Internet. 10 Aug. 1999.
Available: http://www2epic.org/cda/cda_decision.html
"Unauthorized Access." pg. 1. Online. Internet. 10 Aug. 1999. Available:
http://aranea.law.bris.ac.uk./JISC/JiscSeminar/tsld014.htm
Return to Home Page