From Issue 2.6 - June/July 1996
"Just as the strength of the Internet is chaos, so the strength of our
liberty depends upon the chaos and cacophony of the unfettered speech
the First Amendment protects."
-- excerpt from the decision
On June 12, a 3-judge panel in Philadelphia unanimously ruled that the Communications Decency Act (CDA), part of the recently passed Telecommunications Act, is unconstitutional. The suit against the CDA -- known as ACLU vs. Reno -- was filed by the ACLU in conjunction with some 40 plaintiffs and by the Citizens Internet Empowerment Coalition. The CDA attempted to ban transmission by computer of "any comment, request, suggestion, proposal, image or other communication" which is "indecent" or "patently offensive."
The judges showed a good grasp of the nature of online communication, and agreed that the Internet is more similar to print media or a telephone conversation than it is to a broadcast medium such as television, in that users must seek specific content rather than having it thrust upon them. In the words of Judge Stewart Dalzell, "The Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through the CDA, interrupt that conversation." The judges agreed with the ACLU's contention that the indecency standard is too broad and vague, and noted that there are no accepted community standards in cyberspace.
The cause of the ACLU was apparently helped along by the American Family Association (AFA), which in April pressured the FBI to crack down on Compuserve for allegedly allowing children to access pornography (in fact, the online service takes several measures to let parents regulate what their children see). The move flew in the face of an injunction against enforcement of the CDA, and the peeved justices ordered the FBI to cease CDA-related actions until the court case was decided. In the wake of the decision, Cathy Cleaver of the Family Research Council (over)reacted by stating, “Failure to enact strong laws is a concession that the information superhighway should belong to pornographers. It would be like leaving a loaded gun in a playground."
The Department of Justice (DoJ) has twenty days to file an appeal to the Supreme Court; an appeal was previously assumed to be imminent, but as we go to press the DoJ may be waffling in the face of the unanimous appeals court decision. In the meantime, an injunction against enforcement of the law remains in effect. Another challenge to the CDA, American Reporter vs. Reno, is currently underway in Manhattan.
It is the nightmare of every kinky parent. Selina and Steven Houghton, a New York couple who practice consensual SM, had their two children taken away by "child protection" authorities in early January of this year.
The couple was accused of child abuse after an acquaintance stole from their home and turned over to the police photographs and a videotape showing Selina and Steven engaged in SM play. The couple's children did not appear in the video.
The detective in charge of the case, Lieutenant Bernard, is a known crusader against child abuse. In a recent case, a teacher he prosecuted was forced to leave town in disgrace despite being cleared of all charges. After viewing the Houghtons' tape, Bernard pressured the "child protection" agency to remove the couple's children -- a twelve year old girl and a six year old boy -- from their home. A case worker stated that the agency had found no evidence of child abuse, and recommended that the children be returned to their home. Bernard threatened to create negative publicity if the children were released by the agency.
When the Houghtons went to court in March to try to regain custody, Bernard arrested Selina and Steven in the courthouse, charging them with misdemeanor offenses. The couple were sent to jail while their friends and supporters (including Boudoir Noir magazine publisher Robert Dante, 1995 Ms. NLA Mary Dante, and authors Philip Miller and Molly Devon) contacted sympathetic attorneys and raised money for the usually high $4,000 bail. Bernard has attempted to have the current relatively sympathetic prosecutor, who recommended the children's return, removed from the case.
The Houghtons' family court case began in early May, and so far the trial has not gone well. The couple's attorneys have proposed a plea bargain whereby the Houghtons would plead guilty to simple neglect in order to have their children returned. Several psychologists and psychiatrists have made statements in support of the couple. In addition to the family court case, the Houghtons also face a criminal trial.
In addition to losing their children (who remain in foster care), both Selina and Steven have lost their jobs and have been unable to stay in their home. They have had to sell many of their belongings to pay for their defense. Fortunately, members of the SM community have rallied to support the couple, including publishers, authors, and titleholders. The Houghtons visited New York City in April to speak about their case to various leather groups and at an event at The Vault, raising over $4,000. Donations can be sent to the Boudoir Noir Defense Fund, Box 5, Stn. F, Toronto, Ontario, Canada M4Y 2L4. For more information, contact Robert Dante at 416-591-2387 or visit the web site at http://www.boudoir-noir.com.
Spectator newspaper and several other adult publications are continuing their fight against AB17, a 1994 law which makes it illegal to sell sexually explicit material from unguarded newsracks or street vending boxes. Penalties include fines and jail time. In January 1995, the plaintiffs were granted a preliminary injunction against enforcement of the law pending appeal. In September 1995, a federal district court judge ruled against the publishers. The Ninth Circuit Court of Appeals is scheduled to hear the appeal on July 1l; this will be the last chance (except for the Supreme Court) to stop the law from being enacted. First Amendment attorney Stanley Fleishman will argue the case before a three-judge panel. The plaintiffs maintain that AB17 imposes impermissible content restrictions, does not represent the least restrictive means of protecting children from sexually explicit material, and interferes with adults' rights to access such material. Feminists for Free Expression and Californians Against Censorship Together have filed amicus briefs in support of the plaintiffs
Last issue we reported that while Little Sister's bookstore in
Vancouver, Canada had won a moral victory in their case against Canada
Customs' discriminatory seizure of gay-themed materials, the court had
not prevented customs from continuing such actions. After the verdict
in January, Little Sister's filed for an injunction to stop further
seizures and recover some of their legal expenses. In late March, the
judges ordered Canada Customs to take Little Sister's off their
"lookout list" for potential seizures. The court also ruled that the
Canadian government must pay $170,000 toward Little Sister's lawyers'
fees and more for expert witness expenses. Little Sister's is still
appealing Canada Customs' right to seize sexually explicit material
in general, a case that will likely ultimately go to the Canadian
Supreme Court. Donations can sent to the Little Sister's Defense Fund,
1221 Thurlow Street, Vancouver, B.C., Canada V6E 1X4.