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[FYI] (Fwd) censorware and statistics in the news

------- Forwarded message follows -------
Date sent:      	Mon, 22 May 2000 16:58:11 -0400
Send reply to:  	Law & Policy of Computer Communications
From:           	Chris Savage <chris.savage@CRBLAW.COM>
Subject:        	censorware and statistics in the news

The Supreme Court just upheld a 3-judge district court's decision to
invalidate Section 505 of the Telecom Act of 1996, which required
either total, complete scrambling of adult programming on cable
systems or, if that was too expensive or not possible, time-limited
broadcasts from 10 p.m. to 6 a.m.  Most cable ops had chosen
time-shifting out of fears that their less-than-100% effective
scrambling systems would subject them to liability.

The case is at:


Some of the list's perennial topics are addressed.  Censorware
(directly and indirectly):

"And, while mentioned only in passing, the mere possibility that
user-based Internet screening software would 'soon be widely
available' was relevant to our rejection of an overbroad restriction
of indecent cyberspeech.  Reno, supra, at 876-77."  (Majority at 9).

"There is, moreover, a key difference between cable television and the
broadcasting media, which is the point on which this case turns: Cable
systems have the capacity to block unwanted channels on a
household-by-household basis."  (Id. at 10).

"Simply put, targeted blocking is less restrictive than banning, and
the Government cannot ban speech if targeted blocking is a feasible
and effective means of furthering its compelling interests."  (Id. at

And statistics:

"To say that millions of children are subject to a risk of viewing
signal bleed [[[i.e., the ability to view and/or hear adult channels
even though they are supposedly 'scrambled']]] is one thing; to avoid
articulating the true nature and extent of the risk is quite another."
 (Id. at 14).

"Although the parties have taken the additional step of lodging with
the Court an assortment of videotapes, some of which show quite
explicit bleeding and some of which show television static or snow,
there is no attempt at explanation or context; there is no discussion,
for instance, of the extent to which any particular tape is
representative of what appears on screens nationwide."  (Id. at 15).

"'[T]he Government presented no evidence on the number of households
actually exposed to signal bleed and thus has not quantified the
actual extent of the problem of signal bleed.' [[[District Court
Opinion, 30 F. Supp. 2d]]] at 709.  The finding is not clearly
erroneous; indeed it is all but required."  (Id. at 16).

"Without some sort of field survey, it is impossible to know how
widespread the problem in fact is, and the only indicator in the
record is a handful of complaints. ... If the number of children
transfixed by even flickering pornographic television images in fact
reached into the millions we, like the District Court, would have
expected to be directed to more than a handful of complaints."  (Id.
at 17).

"The question is whether an actual problem has been proven in this
case.  We agree that the Government has failed to establish a
pervasive, nationwide problem justifying its nationwide daytime speech
ban."  (Id. at 18).

So, what does it all mean (for cyberspace)?  If nothing else, the fact
that the Supreme Court now recognizes a separate word ("cyberspeech")
for what, e.g., we are doing now, is reasonably cool, although that
hardly goes to the merits of its discussion.

Christopher W. Savage, Cole, Raywid & Braverman, L.L.P.
1919 Penn. Ave. N.W., Suite 200, Washington, D.C. 20006
voice: 202-828-9811 e-fax: 703-991-1470  fax: 202-452-0067

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