The Difference Between Obscenity and Indecency Excerpted from the book CYBER RIGHTS, by Mike Godwin (Random House, forthcoming in 1996) With the exceptions of broadcast media and dial-a-porn services, most publication and expression in this country is protected under the First Amendment unless it has been found to be "obscene". That is, it must flunk a three-part legal test laid out in the Supreme Court's 1973 decision in Miller v. California: a) it depicts sexual or excretory acts listed in a state obscenity statute, b) it depicts those acts in a "patently offensive" manner, appealing to the "prurient interest," as judged by a reasonable person applying the standards of the community, and c) it lacks "serious" literary, artistic, social, political, or scientific value. The antiporn activists are troubled by that test -- especially the last part, which allows otherwise-dirty pictures and words to escape censorship if they are arguably socially valuable in some way. They'd prefer a legal regime like that administered by the FCC over the world of broadcast radio and TV -- one in which "indecency" can be regulated in the interests of protecting children from the nasty effects of exposure to a "pervasive" medium. The term "indecency," although never defined by Congress or the courts, is a far broader concept than "obscenity" (examples of "indecency" include George Carlin's famous "Seven Dirty Words" monologues, at least some portions of Howard Stern's radio broadcasts, and, according to one court, the text of Allen Ginsberg's "Howl"). The concept of "indecency" was first legitimized in a case called FCC v. Pacifica Foundation, and it concerned whether a radio station could be fined for airing one of George Carlin's dirty-word monologues. Although Justice Stevens, writing for the majority, upheld the FCC's right to regulate "indecency" because TV and radio are "pervasive" and easily accessible to children, the pervasiveness/children rationale has long been assailed by Constitutional scholars. In fact, Raymond Smolla, a constitutional law professor at the College of William and Mary, argues that, given the force of the criticisms of Stevens's decision in the Pacifica case, that perhaps the Justice had "a hidden agenda, perhaps so hidden it was subconscious." In his 1988 book on Jerry Falwell's lawsuit against Larry Flynt and Hustler magazine, Smolla elaborates: "Pervasiveness and protection of children do not really tell the story. It is not the pervasiveness of broadcasting goading the FCC, but the pervasiveness of indecency. Much of American society -- at least some members of the Supreme Court, most people in the recent Reagan Administration, and a majority of the FCC -- really do not believe in the side of the First Amendment tradition that holds that the indecent but nonobscene should be fully protected. To many _FCC v. Pacifica_ should not represent a special broadcasting exception to the usual First Amendment rule -- it should _be_ the usual First Amendment rule. That expansion of _Pacifica_ was precisely what Jerry Falwell hoped to persuade the Supreme Court to undertake." Expanding "indecency" -- In the face of the increasing digitization of American culture, is it any wonder that Falwell's agenda in the mid-'80s became the antiporn activists' agenda in the mid-'90s? Since we're all going to be online more and more in the coming decades, it was vitally important for the antiporn crowd to establish "indecency" rules as the standard of acceptability in the online world. And the cyberporn panic caused by the Rimm study was a perfect fit for that agenda -- it gave the antiporn activists a crisis to hype, and a way to argue that current laws must be inadequate, else why would ostensibly obscene material still be available on the Internet? (Never mind that the logic here is faulty --sort of like arguing that the ubiquity of pot smokers proves that marijuana must be legal.) The answer, clearly, was to ban "indecency" from the publicly accessible areas on the Net. The ban would have the effect of limiting adult-to-adult conversations in the public spaces of the Net to content deemed by the FCC to be acceptable for children. In short, countless things you can say in writing, or in public speaking, without fear of censorship, would turn you into a felon if you said them on the Net.