B y C r a i g M c L a u g h l i n
ON DECEMBER 6, members of the congressional conference committee working out the differences between House and Senate versions of legislation that would overhaul the telecommunications industry agreed on language for the "anti-smut" provisions. The really good news is that commercial on-line services like America Online and CompuServe will not be legally responsible for everything their customers send over their networks. The really, really, really bad news is that criminal penalties apply to anyone who knowingly transmits "indecent" material, as opposed to material that is "obscene," "sexually explicit" or "harmful to minors."
Each of these phrases has a very different meaning in the courts, and "indecent" covers a lot of ground. Indecent material doesn't even have to be about sex--in legal lingo, it isn't necessary that "the dominant theme of the material taken as a whole appeals to a prurient interest in sex." The only thing required for material to be indecent is that it be "patently offensive by contemporary community standards" and that it be "utterly without redeeming social value."
This definition of indecency comes from Supreme Court cases that determined whether the government may regulate material that goes out over the public airwaves. The court ruled that the FCC could "channel" indecent material away from the hours when children are likely to be listening, and that indecency encompassed any on-air mention of seven words that figured prominently in "Filthy Words," George Carlin's infamous 12-minute monologue the Pacifica Radio Network spent five years defending in court after a 1973 broadcast. The reference books on my shelf are too cowardly to list the words, but Michael Huntsberger, general manager of KAOS radio in Olympia, Wash., tells me they are shit, fuck, cunt, cock, cocksucker, motherfucker and tits.
Aside from channeling indecent material on the public airwaves away from primetime, the courts have consistently found that censoring indecent material is unconstitutional. Yet this is the standard Congress wants to apply to the Internet.
It's bad enough that my friend Amelia Copeland, who publishes an erotic magazine called Paramour, might be banned from the Web. Her thinking when she created her magazine was that you can be a little more explicit, less predictable and less vanilla than some erotica publications without sacrificing literary or artistic quality. I think she's succeeded and she should have as much right to publish electronically as in print.
But that's not what we're talking about here. We could be talking about my novel, this column, and lots more. The last novel I finished was Anne Rice's Taltos and she used the word cock. There is no law against a minor going into a bookstore and buying an Anne Rice novel. I can legally use cunt in this column, which is published in alternative newsweeklies that are distributed free in street racks.
But now there's a new level of regulation proposed for the Internet. And because the Internet goes everywhere, who's to say what community's moral standards apply, and who is to judge redeeming social value? The case that preceded the Pacifica case and really established the indecent standard was based on a live interview broadcast from a musician's hotel room in 1970. The musician used fuck and shit repeatedly, and the court ruled that broadcasting the musician's unedited speech was "without redeeming social value." The radio station, WUHY, was fined. Yet when the man died, he was heralded as a visionary by the world press and his image adorned the cover of almost every major U.S. magazine. In its 1970 ruling, the U.S. 2nd District Court in Washington, D.C., referred to him simply as "Mr. Garcia."
By now I have used all seven words, most of them more than once. I usually don't do that. As an editor, I discourage the gratuitous swearing that writers sometimes include just to show how cool they are. Why knowingly drive off a certain number of potential readers when there are other ways to say things? But hate those little asterisks--as in f**k--and I consider writing this column this way an act of political defiance. But will I be able to post this tidbit of political speech on my Web site without fear of legal harassment? Probably not.
I say: Fuck this shit.
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