A trial now taking place in Philadelphia will determine the constitutionality of the Communications Decency Act (CDA), a federal law passed last fall which criminalizes the online "depiction or description" of sexual acts and organs. By its terms, the CDA permits regulation of electronic text far beyond what is permissible for books and magazines under the First Amendment. In the back of the courtroom, representatives of the Religious Right, such as ex-prosecutor Bruce Taylor of the National Law Center for Children and Families, are monitoring each day of the trial with intent interest.
Why are they there? Not only is the CDA an extension of the Religious Right's campaign to dictate moral standards in traditional media, the CDA itself is a creature of the Religious Right, which had a significant hand in sculpting it, lining up politicians to support it, and then supplying them with the ammunition they needed to get it passed.
Soon after the Republicans released their Contract with America, the Christian Coalition responded with its Contract with the American Family; item 10 called for strict regulation of the Internet to protect minors against sexual material. Bruce Taylor responded to the Christian Coalition's call. Taylor prosecuted more than sixty obscenity cases during his tenure with the Department of Justice, before leaving to become executive director of the National Law Center for Children and Families. Working behind the scenes advising Nebraska Senator James J. Exon, a conservative Democrat who had made the issue of Internet indecency his own, Taylor helped draft the CDA, first introduced by Exon during 1994. The bill expired that year, but succeeded in becoming law in 1995, after the election of a Republican majority with ties to the Religious Right.
On June 12, 1995, the Senate initiated debate on the CDA with a prayer by the Senate chaplain, Dr. Lloyd John Ogilvie: "Almighty God, Lord of all life, we praise You for the advancements in computerized communications that we enjoy in our time. Sadly, however, there are those who are littering this information superhighway with obscene, indecent, and destructive pornography." Senator Patrick Leahy of Vermont, foremost adversary of the CDA, later commented that the chaplain should "allow us to debate these issues and determine how they come out and maybe pray for our guidance, but allow us to debate them. He may find that he has enough other duties, such as composing a prayer each morning for us, to keep him busy."
The entire Senate debate, spearheaded by Senator Exon and Republicans Dan Coats and Charles Grassley, was informed by the sensibilities of the Religious Right. The senators read letters from the Christian Coalition and from Bruce Taylor into the record. More significantly, they flaunted statistics from the notorious Marty Rimm "cyberporn" study two weeks before it was released in an exclusive article in the July 3 Time magazine. Apparently, the proponents of the CDA had been given a preview of the study's contents.
Mike Godwin, staff counsel to the Electronic Frontier Foundation, believes that the Religious Right acted as the conduit between the Georgetown Law Journal, then preparing the Rimm study for publication, and the pro-censorship senators. Godwin discovered that as early as November 1994, Bruce Taylor was assisting Marty Rimm, then a junior at Carnegie Mellon, in preparing his study, a thesis project. Deen Kaplan, a Georgetown law student and editor of the law journal, shared office space with Taylor in a complex which also housed the National Coalition for Children and Families and Donna Rice's organization, Enough is Enough. Another prot‚g‚ of Taylor's, John McMickle, was now on Senator Grassley's staff, and assisted him in drafting his own Internet indecency legislation. Deen Kaplan compiled Senator Exon's "blue book" of Internet pornography, which he brandished to great effect during the Senate discussions.
On June 14, Senator Coats of Indiana announced in the Senate that there were 450,000 pornographic images and text files on the net, which had been accessed 6.4 million times in the last year. Although he did not give the source of these statistics, they came directly from the still-secret Rimm study. After its release in July, the cyberporn study was quickly discredited as a scientific document and revealed to be the publicity-seeking stunt of a university undergraduate, but the damage it caused continues: the Department of Justice introduced it in evidence in the current trial of the CDA.
Ironically, the author soon tried to distance himself from the use the Religious Right made of his study. Ralph Reed of the Christian Coalition had praised the study on "Nightline." Marty Rimm responded: "Frankly, my sense is that things are getting blown out of proportion because people are angry that the study will be misappropriated. Their concerns are indeed well-founded. For instance, Ralph Reed stated on 'Nightline' that according to the Carnegie Mellon University survey, one-quarter of all the images involve the torture of women. This is simply untrue; the Carnegie Mellon study does not report any results concerning torture. Many others on Capitol Hill have misappropriated the study as well."
Some congressmen privately told constituents that they had no choice but to vote for a law which they believed the courts would later hold unconstitutional; the Senate passed the CDA by a vote of 86-14. The next day, Ralph Reed of the Christian Coalition exulted: "We are proud and honored that the first item of the Contract with the American Family that passed either house of Congress is designed to protect our children... We applaud Senators Coats and Exon for their decisive step forward to protect our nation's youth from the real threat of cyberporn, and we look forward to swift action in the House."
For a while, it looked as if the CDA would be defeated in the House, where Speaker Gingrich had announced that it was unconstitutional. The CDA was never reported out of committee, and the House made a show of passing the Cox-Wyden Amendment, which lauded the Internet and announced that the FCC would never have any role in regulating it. However, in a remarkable manipulation of the procedural rules, Congressman Henry Hyde of Illinois, another longtime supporter of the Religious Right's agenda, added his own version of Internet indecency language to the Telecommunications Reform Act in a last minute "manager's mark amendment." This swept to victory shortly afterwards as the House endorsed the Telcom Bill, with most legislators completely unaware that Congressman Hyde had tacked it on to the bill.
The next day, Ralph Reed said, apropos of this and other legislative developments: "We are on a roll.... We never expected to make so much progress so quickly.... Our grassroots will stay engaged until the final item is passed and signed by this or a future president." He made no mention of the unsavory way in which Congressman Hyde had resuscitated a law declared dead by the Speaker. A House-Senate conference commitee reconciled the Exon and Hyde versions, and later that fall President Clinton signed the Telcom Bill into law, which included the CDA.
The Religious Right is not resting on its laurels. In addition to attending the Philadelphia case, it is utilizing the media in its aggressive defense of the CDA. A few weeks ago, I debated ex-prosecutor Patrick Trueman, now legislative affairs director f or the American Family Association, on NBC's America's Talking cable network. Trueman called the Internet "depraved" and accused me of wanting "to let the perverts go." Shortly after, he released a letter to the press in which he called for the prosecution of the CompuServe online service under the CDA for its alleged hosting of pornographic images.
The Religious Right has now mounted a preemptive strike against the Internet.
Jonathan Wallace, a software executive and attorney, is co-author with Mark Mangan of Sex, Laws, and Cyberspace published by Henry Holt. He can be reached at firstname.lastname@example.org.