The New American Way of
Censorship ONLINE LAW
BY DEREK E. B
Saudi Arabia censors the
Internet because it fears blasphemy. Britain
censors it to interdict child pornography.
America does so to block sales of fake
NFL shirts and downloads of pop songs.
Americans—especially lawyers—are
invariably surprised to learn that their government censors the Internet. And they
should be surprised to learn why it does so.
Such actions seem in tension with the
country’s robust protection for unfettered
discourse, including hate speech, lies about
one’s military record, and video games
featuring graphic disembowelment. 1 Those
versed in the history of U.S. Internet
regulation recall that a pair of seminal
Supreme Court cases rejected congressional attempts to prevent minors from reaching sexually explicit material online. 2
Moreover, just last winter, an unprecedented wave of political advocacy by Silicon
Valley, Netizens and civic groups beat back
attempts to pass laws cutting off sites that
allegedly infringed IP from funding and
access by American users. 3 The war against
Internet censorship seemed won. What
happened?
In this article, I trace briefly the rise of
the new American way of censorship.
Next, I suggest a rationale grounded in
public choice theory for why censorship of
porn failed, but that of IP infringement
succeeded. Put simply, porn has a posse,
and peer-to-peer does not. Finally, I argue
that while curtailing IP infringement is a
worthwhile pursuit, the means currently
employed pose significant risk to other
key American values, such as due process,
transparency and accountability.
Censorship Reborn
One of the Internet’s founding myths is
that censorship is made impossible by the
network’s adaptable, end-to-end architec-
ture. Countries such as China and Saudi
Arabia quickly proved that wrong, success-
fully designing their networks to block
access to disfavored content. Because
America’s network architecture did not
permit centralized technological restric-
tions, would-be censors turned to law.
Driven by concerns over the ready access
to pornography online, the federal govern-
ment passed restrictive legislation shortly
after the Net opened to commercial con-
tent. The first bill, hastily and inartfully
drafted, contained two provisions. One
banned knowing transmission of obscene
or indecent communications to anyone
known to be under age 18. 4 The second
prohibited displaying online, in a way
accessible to minors, any patently offensive
communication depicting or describing
sexual or excretory activities or organs. 5
Although the statute created a set of
affirmative defenses, several—such as adult
access codes or adult personal identifica-
tion numbers—existed only in the congres-
sional imagination, and others were wholly
ineffective in preventing access by minors. 6
The statute’s vagueness in specifying pro-
hibited content, and the effects upon
speech lawful for adults, led the Supreme
Court to strike down those provisions of
the Communications Decency Act (CDA)
