Tripod Home | New | TriTeca | Work/Money | Politics/Community | Living/Travel | Planet T | Daily ScoopPOLITICS & COMMUNITY
Mike Godwin
interviewed by Brian Hecht on 12 December, 1995
"Congress will have to be reminded forcibly of what the meaning of the Constitution is."
Mike Godwin serves as staff counsel to the Electronic Frontier Foundation (EFF). He spoke with Tripod about the Communications Decency Act (CDA) and its potential impact.
Tripod: On a scale from one to ten, how bad do you anticipate the effects of this legislation will be?
MG: Eleven. I think what you're seeing is not only the criminalization of a wide range of First Amendment-protected speech and expression. But you're also seeing a vast incentive for the providers to act as content police. I think there's a real risk of the providers being put in a position by the outcome of this telecommunications legislation of choosing between felons or being policemen.
Tripod: I assume that the commercial on-line services don't want this responsibility.
MG: It's not really that they don't want it. It's that they recognize that what the clients want is not to have mediated communication. They want to speak directly to other users, they do not want to have this editorial filter imposed by the providers because the government forces the providers to do that.
Tripod: And the providers would be incurring tremendous liability if they assume responsibility for the content of what was being said?
MG: I think they would have to fundamentally change their businesses.
Tripod: Could you take us through the big events in recent weeks, about this legislation?
MG: The Senate had passed the Exon legislation which outlawed indecency on the Net. And then the House had passed, resoundingly, the Cox-Wyden amendment to the Telecommunications Bill that promoted user control for filters and labelling. But they also passed some changes to the federal criminal code that expanded the scope of indecency and obscenity legislation in an unacceptable way. So there was a lot of concern that what would arise out of the conference committee would simply be a very broad regulatory regime. Well, there was some hope that a proposal by Representative Rick White of Washington would find favor with the House caucus of the conference committee. And it seemed to at first. They won on a vote of, I think 20 to 13. And that would have criminalized exposing minors to material that is obscene for minors. And that is a specific narrow standard that was crafted by the Supreme Court, or at least partially crafted by the Supreme Court in the beginning of the 1970s. But it ties it into obscenity laws, so in a way it's not a vast expansion.
At the same time, there was a lot of pressure from the religious right to increase all the risks and liabilities associated with providers by removing safe harbor provisions for anyone who provides labelling or filtering mechanisms. And partly as a result of that pressure, the language "harmful to minors" was removed. "Obscene as to minors" was removed. And what was swapped in was language specifying indecency again. So once again, we have now both houses of Congress attempting to criminalize indecency on the Net. The problem is that the term indecency has no established legislative or juriprudential meaning. The courts haven't said what it means. Congress hasn't said what is means. The FCC, which is not elected, has said what it means, but they change their definition every few years.
Tripod: And that's different from the Supreme Court definition of obscenity...
MG: Absolutely. If this were a case of merely attempting to ban or criminalize obscene materials on the Net, I think there would be some outcry, but there's no question that obscene materials are already illegal. But here you're taking materials that are not obscene and banning them.
Tripod: What's the political future for this legislation. Can there be a veto?
MG: I think there's a real chance that the Telecommunications Bill will include an indecency prohibition that will pass and be signed by the President. If that happens, there will be a lot of challenges in the courts, and what will happen then is that, I think that Congress will have to be reminded forcibly of what the meaning of the Constitution is. It's a shame that they've forgotten their own oath.
Tripod: But short of really voting this crew out...
MG: I think you should vote this crew out.
Tripod: Okay. I wasn't suggesting that that was too radical ...
MG: This is not single-issue politics. This is about the framework under which all political issues are discussed -- the First Amendment.
Tripod: Tell me about what's going on today in terms of the protest.
MG: People all over the Net are contacting their congressmen and senators and expressing their displeasure with the decision of Congress to abridge the First Amendment.
Tripod: In Washington, who do you see as the real offenders? The ones who just don't get it?
MG: I think the question is not who doesn't get it, but who does. It seems very clear that the Speaker of the House has a strong sense of the meaning of the First Amendment significance. In the Senate, Senator Patrick Leahy of Vermont is particularly notable. Congressman Ed Markey is very good. Congressmen Cox and Wyden who came up with alternative in the House are clearly knowledgable. And Rick White.
Tripod: Still, that doesn't sound like a majority.
MG: It's not even close! It tells you something that essentially the same legislation that Pat Schroeder voted for in the House, this anti-decency thing, is what Orrin Hatch voted for. In the Senate, you should also add Feingold and Pat Moynihan.
Tripod: So what's the common theme that unifies all these people who are supporting this legislation. Is it misinformation? Opportunism?
MG: There are several factors. One of them is misinformation about the medium, one of them is fear of the medium. One of them is fear of being seen as soft on pornography or soft on the protection of children. To a large extent they have let the religious right and anti-pornography activists define what they think the issues are. The problem is that even the religious right activists aren't terrible knowledgable about the medium.
Tripod: Finally, what's your estimation of the chances that this will pass into law?
MG: I'd say the chances are about 75 percent.
Tripod: Really? That's pretty grim.
MG: Yup.
You can visit the Electronic Frontier Foundation's Website at http://www.eff.org for more information.
Map | Search | Help | Send Us Comments
