"Congress shall make no law...abridging the freedom of speech"

From telstar@wired.comTue Jun  4 20:49:46 1996
Date: Tue, 4 Jun 1996 17:18:34 -0800
From: telstar@wired.com
To: telstar@wired.com
Cc: jw@bway.net
Subject: BACKGROUNDER: The Religious Right and CDA

Excuse me if my typing is a little sloppy... I've been biting my nails for
three days in anticipation of an imminent decision from the Philadelphia
court regarding the (un)constitutionality of the Communications Decency

Last week, I was told we might have a decision on Monday.  Monday came and
went, then melted into Tuesday (today), and still we haven't received any
news from Philly.  At last word, my contacts are hopeful that we'll have
the judges' decision on Thursday.

I hope they're right, because my fingertips are getting sore.

Meanwhile, as we nervously pace back and forth in this judicial waiting
room, I figure it's worth taking a minute to recall how we got here in the
first place.

The following article by Jonathan Wallace is an interesting overview of how
the religious right conspired with a clueless Congress to secure passage of
the Communications Decency Act earlier this year.

John writes, "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."

Read on for more gritty detail, and stay tuned to this frequency for
further announcements as soon as I learn more about the impending CDA

Work the network!

--Todd Lappin-->
Section Editor
WIRED Magazine



by Jonathan Wallace 

(This article appeared in the May issue of Freedom Writer, the newsletter
of the Institute for First Amendment Studies.)

A trial taking place in Philadelphia now 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 3rd 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 protege 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 the study as
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 cyber-porn, 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 long-time 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
act, 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, including the CDA, into law.

The religious right is not resting on its laurels. In addition to attending
the Philadelphia case, it has taken to the media with an aggressive defense
of the CDA. A few weeks ago, I debated ex-prosecutor Patrick Trueman, now
legislative affairs director for 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.

In her fine 1993 history of American arts censorship, ACLU attorney
Marjorie Heins wrote that "the message of religiously based 'profamily'
leaders like Reverend Donald Wildmon of the American Family Association or
Pat Robertson of the Christian Coalition was not merely that their views on
sexuality, women's rights, reproductive freedom, and religion were correct,
but that other views should not even be heard." These two organizations,
and others like them, have now mounted a pre-emptive strike against the

Jonathan Wallace, a software executive and attorney, is co-author with Mark
Mangan of Sex, Laws and Cyberspace, a book about Internet censorship
(Henry Holt, 1996) (http://www.spectacle.org/freespch/).

This transmission was brought to you by....


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WARNING: This is not a test!            WARNING: This is not a drill!

Dispatches from the CDA trial's beginning
"Happy to respond..." The DOJ embraces the American Family Association
FBI rebuffs the American Family Association
The Judge's response
American Family Association's original announcement

The magazine that started it all
Net reactions to Time

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