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I. The Internet And Its Effects On Mass Media Law

In the 17th and 18th centuries, America went through what was known as the Industrial Revolution, where Western culture as a whole went from using hand-tools to using machines that mass-produced the same items. What once took a week to produce now took a day to produce.(Kitano, 1999) Now, as we cross over into the 21st century, we have entered what has been called The Information Revolution, or the Information Age. We live in a time where information is only a mouse-click away for a large portion of the country and the world. Up until ten years ago, people had to go to their local library or purchase an expensive encyclopedia set for their home just to obtain information. Now, information is free and easily accessible from the home. Why pay five hundred dollars for an encyclopedia set when you can get on the Internet and obtain even more information for free? Also, within the past year, Internet service to the home has become available free of charge through certain providers that subsidize their service through advertisements. But with all these advantages, there definitely has to be a flip side of the coin. An old adage says that everything comes with a price, and that is definitely true of the Internet. The purpose of this paper is to discuss how this new technology has affected Mass Media Law and society as well. For the sake of time and space, I will give only a brief overview of each act, bill, or case that is presented so that I can focus more on the effects and implications of each. With the Internet becoming more and more popular, the world now faces many new legal and moral questions raised by this emerging technology. I will address several of the more important of these questions, including the following: “How do we keep indecent material from minors?,” “How do we protect authors of original material from having their creation spread all over the world for everyone to copy?,” and “How do we create a system where people that libel other individuals anonymously on the Internet can be prosecuted for their crime?” It is questions like these that our world has had to face in the past two to three years since the Internet has come into the foreground. A work of this length would have a great difficulty trying to exhaustively address every angle and issue involved in media law and the effects that the internet has upon it, and instead must give a cursory overview of several main issues in the forefront of today’s legal news.

II. The Internet and Obscenity

A. Brief Overview Of The Communications Decency Act of 1996 and The Child Online Protection Act (CDA 2)

In 1996, Congress passed the Telecommunications Act of 1996.(Telecommunications Act, 1996) The purpose of this act was To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies. (Telecommunications Act, 1996) In and of itself, the act was intended to create healthy competition in the new, fast-emerging, unregulated market that the Internet, cable television, and telephone companies had helped to create. It was also to help foster fair competition in this new market.

It is Section 5 of this act that gets the most attention, however. Section 5 is also known as The Communications Decency Act of 1996. The CDA attempted to restrict all people, regardless of age, from creating, viewing and transmitting indecent material via the Internet. Indecent speech is defined as material that may be sexually graphic but is protected by the First Amendment. Indecent material is also referred to as adult material or sexually explicit material. (Pember, 1999) This is a very vague description of the term “indecency,” but so far, it has yet to be challenged in the Supreme Court. As District Judge, Dalzell said in his response to the CDA, “The definition of indecency, like the definition of obscenity, is not a rigid formula. Rather it confers a large degree of autonomy to individual communities to set the bounds of decency for themselves.”(Dalzell, 1998)

The term “obscenity” also seems to attract attention in today s legal system. The definition of “obscenity” was agreed upon by a majority of the Supreme Court after the case Miller v. California in 1973. Chief Justice Warren Burger set the following standards for defining obscenity: “1) An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. 2) The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3) The work in question lacks serious literary, artistic, political or scientific value.”(Dalzell, 1998) Before the CDA, the law protected indecent speech, but not obscene speech. The Telecommunications Act was passed in 1996, but Section 5, otherwise known as the CDA, was later declared unconstitutional by the Supreme Court in Reno v. ACLU, not because it presented high barriers to entry for minors, but because it presented those same barriers to adults, thus infringing on their constitutional right to view indecent material.

Soon after the CDA was declared unconstitutional, Congress made another attempt to attack indecency on the internet by passing what was called The Child Online Protection Act or as it was so aptly named, “CDA 2″. The purpose of COPA was the same as the original CDA, but it applied to commercial sites on the Internet. “Whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that includes any material that is harmful to minors without restricting access to such material by minors pursuant to subsection (c) shall be fined not more than $50,000, imprisoned not more than 6 months, or both.”(Stuckey, 1999) COPA was declared unconstitutional by the Supreme Court after the ACLU filed a suit against the Department of Justice immediately after the act was passed.(ACLU v. Reno, 1998) This ruling was due to the fact that COPA was almost identical to the CDA, and it still raised high barriers to entry for adults. One positive result of COPA was the fact that Congress clarified itself on how it officially defines indecent material: “Any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post pubescent female breast; and (C) taken as whole, lacks serious literary, artistic, political, or scientific value for minors.”(ACLU v. Reno, 1998) Basically, this definition was a combination of the Miller test resulting from the aforementioned case Miller v. California, and the definition of indecency given by the Supreme Court.

B. Children and the CDA: How Do We Keep Pornography From

Our Kids?

The question remains: if the government cannot keep indecent material on the Internet from minors, then who can legally take up that task? After having searched the internet for different methods of filtering internet sites, whether it be through the means of filtering software or through the use of a “family-friendly internet service provider (ISP),” I have come to the conclusion that it is up to the parents. No filtering software or ISP can block out all pornography successfully, because children are more knowledgeable about technology today than ever before. There are numerous ways to circumvent current filtering softwares and Family-Friendly ISPs through the use of certain websites that provide a cloak for the Internet user. One such site is known as The Anonymizer.(Anonymizer, 1999) This site allows the user to be anonymous to anyone that is monitoring their actions from a remote location. For instance, if I want to view a website that is not allowed by Web Sense on the Toccoa Falls College Internet server, I would simply surf over to www.anonymizer.com and enter the address that I want to visit anonymously. The frightening part is that this service is free of charge to anyone who has Internet access. However, if parents take up the task of monitoring what their children view on the internet, not only will they have control over what they see, but this will also force the parents to spend more time with their children, which is, to use an old clich , “Killing two birds with one stone.” This is a perfectly legal way to control minors’ access to pornography. On the internet today, all a minor needs to do in order to access pornography is to click on a disclaimer at the start of a pornographic web page, stating that they are 18 years of age or older, and that pornography is not illegal in their community. I liken this method to the current system that exists for keeping alcohol and tobacco from minors. It all rests upon the person that is selling the alcohol or tobacco: it is up to them if they ask for proper identification or not. A study done in 1997 by the University of Michigan found that “1 in 2 (46%) twelfth grade students report drinking monthly.”(Johnson, 1997) Granted, the government does attempt to stop underage drinking by cracking down on retailers of alcohol and tobacco, but the government has its own limitations and can only do so much. If we want to stop underage drinking and smoking, we need to talk to our children about the dangers involved and take an active role in their lives to assure that they make the right choices. The same concept applies to pornography on the web. However, there are two major differences between buying alcohol and viewing pornography on the internet: First, there is no one person “behind the counter” to check identification; second, it does not cost an adult anything to show identification for the purchase of alcohol or tobacco: A barrier that the CDA and COPA could not seem to conquer.

Some have suggested making legislation that would require web site owners to register their domain names with a “xxx” at the end of the domain name, such as “www.playboy.com.xxx” which would automatically inform filtering software or ISP’s that the site contains pornography as defined by the standards of the federal government. However, the biggest problem with this suggestion is that it would require web site owners to spend money on registering their domain name. Currently, most pornographic web sites do not cost anything because they are free due to the paid advertising that runs in the background or through what are known as “pop-up windows.” This would create a barrier to entry for any adults that wanted to create a pornographic web site, one of the main reasons that both the CDA and COPA were declared unconstitutional by the Supreme Court.

Again, the question remains: how do we keep pornography on the Internet from minors? The answer is simple: parents must be the gatekeepers because the job does not belong to the government. This solution is not talked about much because a good number of parents in America are too busy with work or other activities to take the time to monitor their children’s behavior. The secondary avenue for protecting minors from Internet pornography is using filtering software or “Family-friendly Internet Service Providers,” which should be used in conjunction with parental monitoring. There is a bottom line for this issue: If parents do not want their kids viewing pornographic or other material that they deem inappropriate for minors, then they must get involved. Involvement is a small price to pay for tomorrow’s future.

C. How Do We Respond As Christians to Obscenity, the CDA

And COPA?

As Christians, we are more inclined to look at the CDA and see it as a positive step in the right direction for our country and especially our children. However, what most people do not realize is that the CDA, had it been approved by the Supreme Court, would have taken away fundamental rights provided to every American. The right to view indecent material is protected by the same First Amendment that gives Christians the right to believe the way we do and to be vocal about those beliefs. In doing extensive research for the purpose of this paper, I was amazed at some of the outright ignorance on the part of Christian organizations concerning the issue of indecency on the Internet. The Family Research Council, in one of its numerous documents addressing the issue of indecency on the internet said,

“But computers may also bring into public libraries and the classroom not just novel ways to present or access academic facts and retrieve articles, but also character-corrupting images in the form of Internet obscenity as well as academic plagiarism on a previously unimaginable scale. The chief protagonists in this struggle for the hearts, minds and souls of America s children and citizens are the American Library Association (ALA) and the American Civil Liberties Union (ALCU) two groups that have had great success in cloaking their core agenda of moral and social nihilism in First Amendment garb.”(Marshall, 1999)

I do not understand how Christians seem to forget that organizations like the ACLU and the ALA have been crusaders for the First Amendment thereby protecting the right of free speech for Christians as much as for purveyors of pornography on the internet, even if their motives may have not been Christian in nature. With a name like “The Family Research Council,” one would be inclined to expect them to support the idea of parental supervision and involvement when it comes to indecency and minors. If we as Christians are not careful and we attempt to censor anything that does not agree with our doctrine and do not stand up for the First Amendment, the censurers may soon become the censored.

The question of what makes indecency and obscenity any worse than the depiction of violence must also be raised. Judge Sarokin best reflected this sentiment in E-Bru, Inc. v. Graves when he said “They [indecent materials] also seem to arouse passions of an entirely different sort. If a merchant announced his intention to open a store dedicated to murder mysteries, no matter how violent or bloody, nary a picket or protestor would appear. But should one announce that sex is to be the main theme, then organized opposition is inevitable.”(E-Bru v. Graves, 1983) How do we respond to this sentiment as Christians? First, we must look at what Jesus said in Matthew: “You have heard that it was said, ‘Do not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart.”(NIV) When looking at this from a Christian perspective, we see that when it comes to lust, mere intent is sinful. This same admonition is not used to address intentions of anger and violence, rather only the actions resulting from those intentions. In Ephesians, Paul states, “In your anger do not sin: Do not let the sun go down while you are still angry “(NIV) These verses show a difference between indecency and violence from a Christian perspective. However, since we live in a non-Christian world, we must make our position known concerning not only indecency but violence as well, yet at the same time protecting the First Amendment and subsequently free speech.

III. The Internet and Libel Law

A. Brief Overview of Current Libel Law Involving The

Internet

Libel can be defined as “Published or broadcast communication that lowers the reputation of an individual by holding him or her up to contempt, ridicule, or scorn.”(Pember, 1999) In order for a plaintiff to win a libel suit, there are five conditions that must be proven to exist: (A) The libel was published. (B) The words were dealing with the plaintiff involved in the suit. (C) The material contained in the publication is defamatory. (D) The material contained in the publication is false. (E) The defendant in the suit is found to be at fault. All five of these conditions must exist for a plaintiff to win a libel suit. Libel is also referred to as “defamation,” which is more narrowly defined as “a communication which exposes a person to hatred, ridicule, or contempt, lowers him in the esteem of his fellows, causes him to be shunned, or injures him in his business or calling.”(Pember, 1999) The Internet is considered to be a mass medium the same as radio, television, or newspaper, in regards to libel law.

B. How Does Libel Affect On-Line Service Providers? (OSP)

Before the passage of the Telecommunications Act of 1996, On-Line Service Providers (OSP s) would have been held liable for any acts of libel or defamation committed using their services or equipment. According to 509 of the law, No provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. (Woody, 1996) This was ultimately put to the test in the recent case of Blumenthal v. Drudge. Matt Drudge is the author and publisher of The Drudge report which appears on the web at www.drudgereport.com It is a site that posts rumors and other types of gossip that take place primarily on Capitol Hill. Matt Drudge is the person who began circulating the story concerning the Monica Lewinsky and President Clinton sex scandal, leading to further investigation. Late at night on the evening of Sunday, August 10, 1997, defendant Drudge wrote and transmitted the edition of the Drudge Report that contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from Los Angeles, California by email to his direct subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. (Blumenthal v. Drudge, 1998) The report contained defamatory speech aimed specifically at Mr. Blumenthal, stating that he had a history of spousal abuse. The banner on the web site read, Charge: New White House Recruit Sidney Blumenthal Has Spousal Abuse Past. Not only was Drudge putting himself in the way of litigation, but he also inadvertently brought his on-line service provider, America Online(AOL) into the legal picture. The Blumenthals filed suit against both Drudge and AOL, claiming that both were responsible for the defamatory statement. AOL asked for a summary judgment and was granted one by a district court in the District of Columbia. Judge Friedman in his summary judgment for AOL stated:

AOL is not a passive conduit like the telephone company, a

common carrier with no control and therefore no

responsibility for what is said over the telephone wires.

Because it has the right to exercise editorial control over

those with whom it contracts and whose words it

disseminates, it would seem only fair to hold AOL to the

liability standards applied to a publisher or, at least,

like a book store owner or library, to the liability

standards applied to a distributor. But Congress has made a

different policy choice by providing immunity even where

the interactive service provider has an active, even

aggressive role in making available content prepared by

others. In some sort of tacit quid pro quo arrangement with

the service provider community, Congress has conferred

immunity from tort liability as an incentive to Internet

service providers to self-police the Internet for obscenity

and other offensive material, even where the self-policing

is unsuccessful or not even attempted. (Blumenthal v.

Drudge, 1998)

In speaking about Congress providing immunity, Judge Friedman was referring to the Telecommunications Act of 1996, which removes liability on the part of OSP s. Five years before the Telecommunications Act, CompuServe was sued for publishing libel, but was later found to not be liable for the offense. CompuServe was considered to be a distributor, not a publisher, and therefore was not responsible because it did not know and had no reason to know of the statements. (Cubby v. CompuServe, 1991) However, considering the increase in libel litigation involving the Internet, if the legal system keeps heading in the same direction that it is today this law could change. As for the OSP s, most of them, such as AOL, CompuServe, and Prodigy will only police web pages originating from their servers when they are alerted to an offense. Even considering the Terms of Use agreement forms created by AOL and CompuServe, these legal notices do not say much concerning obscenity, let alone libel and defamation. CompuServe, for example (which is owned by AOL and therefore has the same legal notice), states the following in its service agreement which every member who signs up for service must agree to and digitally sign:

Neither CompuServe nor any of its partners, agents,

affiliates, suppliers or content providers shall be liable

for any direct, indirect, incidental, special or

consequential damages arising out of or relating to any use

of compuserve.com (CompuServe, 1999)

While this legal notice may not specifically deal with obscenity or libel, other parts of it do seriously address the issue of copyright, which will be discussed in more detail in the next section.

Even if it is granted that we could hold OSP s and ISP s liable for any and every crime that is committed using their services, are we to ignore individual responsibility? It is not Prodigy s fault that someone posts a libelous statement in one of their public forums or uses web space provided by Prodigy to create an obscene website. The service provider should have a responsibility to remove the offensive materials and terminate the user s account. MindSpring, currently the country s largest ISP, does not address the issue of libel or defamation either. In their service agreement they state,



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