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Lawyers, I suppose, were children once. -- Charles Lamb

This is a speech Mike Godwin of EFF delivered in late '95 at a San Francisco Internet rally and protest sponsored by Wired magazine.

Posted-Date: Mon, 11 Dec 1995 03:35:33 -0500
From: Mike Godwin

Listen. Take a moment now and listen. (Sound of ripping paper.) That's the sound of what the United States Congress has been doing to the Constitution in the last few months, all in the name of protecting our children.

But do they really care about our children? I doubt it.

What they care about, for the most part, is being *seen* as pro-family and pro-children. And since the religious right has seized much of the high ground of pro-children-and-family rhetoric, guess who they're afraid of.

Were their votes grounded in an intelligent appraisal of the technology and functions of the Net? Were they based on knowledge and reflection? The short answer to these questions is "No." The votes of Senators and Representatives were driven, for the most part, by fear and ignorance.

Last Thursday I was sworn in as a member of the state bar of California. This is the third jurisdiction I'm admitted to practice in, but it was only the first time I'd ever attended one of the group swearing-in ceremonies. Like all the other new admittees, I echoed the words of the attorney at the front of the auditorium. In unison, we all swore to dedicate ourselves to upholding the United States Constitution.

This oath is not terribly different in wording or philosophy from that taken by each member of the United States House of Representatives, or each member of the United States Senate, or the Governor of any state, or the President of the United States. We have all sworn to uphold the Constitution.

Part of the Constitution is the First Amendment. And whenever you think about the First Amendment, the first thing you should remember is that it was designed by the Framers of the Constitution to protect offensive speech and offensive speakers. After all, no one ever tries to ban the other kind.

And this was what I was thinking about as I stood in that auditorium and took my oath -- that I was once again swearing to uphold the First Amendment and the Constitution of which it is a part.

But where are all the Representatives and Senators who have sworn to uphold the First Amendment, I asked myself? Now that we face the greatest attack on the freedom of speech of the common man that this nation has ever seen, where are the other defenders of the Constitution? Are they educating themselve about the new medium of the Net? Have they read a word of Howard Rheingold's book on virtual communities? Have they logged in themselves? Have they surfed the Web? Have made a friend on the Net? Or are they satisfied with doing something that doesn't require any online time at all -- passing bad laws?

One senator from my state, Dianne Feinstein, is ready to ban information from the Net that is legal in every library -- perhaps because she's under the impression that it costs nothing to create the fiction that she's preventing another Oklahoma City. But it does cost something -- it costs us the freedom that our forefathers shed their blood to bequeath to us. Here's the sound of what Senator Feinstein is ready to do to the First Amendment. (Sound of ripping paper.)

And what about Senator Jim Exon from Nebraska? Is it any surprise that Senator Exon gets all nervous and antsy when interviewers ask him whether he personally has logged on? Is it any surprise that, for Senator Exon, the Net is just another place to make an obscene phone call? Here's the sound of what Senator Exon is ready to do to the First Amendment. (Sound of ripping paper.)

And the issue of shutting down free speech on the Net is hardly one that divides liberals and conservatives. Here's the sound of what Rep. Pat Schroeder, a liberal Democrat, and Senator Orrin Hatch, a conservative Republican, have already voted to do to the First Amendment. (Sound of ripping paper.)

You may wonder, by the way, why I'm using the sound effect of ripping paper to symbolize what Congress is about to do to online speech, which involves no paper at all. The answer, of course, is that most of Senators and Representatives who voted for imprisoning the Net in a new censorship regime don't know enough to find the Delete key. You'd think that if they're going to legislate in cyberspace, they'd at least learn to use computers themselves, so that the sound we hear as our freedoms are whisked away would be the click of a keyboard or a mouse. But no.

We may also hear, of course, the occasional voice of someone to whom the Constitution still has meaning. Sen. Patrick Leahy of Vermont and Speaker of the House Newt Gingrich have gone on record as opposing any broad ban of "indecency" on the Net. Which goes to show you: the cause of freedom of speech is not a partisan issue either.

For the most part, the issue is one of ignorance of the Constitution and what it protects. The First Amendment, so the courts tell us, does not protect "obscenity" -- and the word "obscenity" has a special legal meaning. It doesn't mean profane language. It doesn't mean Playboy magazine. According to the Supreme Court, it has something to with community standards, with "prurient interest," and with a lack of any "serious" literary, artistic, scientific, or political value. What is the sound of obscenity? I'm not sure, but I'm told that if you dial up a certain 900 number you just might hear some of it.

But Congress isn't even trying to outlaw "obscenity" on the Net -- they're banning something called "indecency," which is a far broader, far vaguer concept. Unlike "obscenity," indecency is protected by the First Amendment, according to the Supreme Court. But that same Court has never defined the term, and Congress hasn't done so either.

Still, we have some notion of what the sounds of indecency are. Thanks to George Carlin and a case involving Pacifica Radio, we know that sometimes indecency sounds like these seven words:

"shit, piss, fuck, cunt, cocksucker, motherfucker and tits."

Now, this isn't the politest language in the world -- on that point I agree with the Christian Coalition. But I must say, as the father of a little girl, that I lose no sleep over the prospect that Ariel will encounter any of these words on the Net -- she is certain to encounter them in the real world, no matter how or where she is raised. What causes me to wake up in the middle of the night, whiteknuckled in fear, is the prospect that, thanks to Senator Exon and the Christian Coalition, my little girl will never be able to speak freely on the Net, for fear that some bureaucrat somewhere doesn't think their language is polite enough -- that it's "patently offensive" or "indecent."

What is the sound of the indecent speech? Thanks to my friend Harvey Silverglate, a lawyer in Boston, we know part of the answer. Harvey wrote the following last week:

'As a result of the FCC's ban on "broadcast indecency", Pacifica Radio has ceased its broadcasts each year, on the anniversary of the publication of Allen's Ginsberg's classic poem, "Howl", of a reading of Ginsberg's poem by the poet. Pacifica and Ginsberg and others have sued the FCC, and while they won a small modicum of relief in the Court of Appeals, they have petitioned the U S Supreme Court for review. The Supreme Court should act within the month. Meanwhile, high school kids read "Howl" in their English poetry anthologies, but it cannot be read on the radio!'

What is that the FCC thought was indecent? Try the sound of these words:

"I saw the best minds of my generation destroyed by madness, starving hysterical naked, /dragging themselves through the negro streets at dawn looking for an angry fix/angelheaded hipsters burning for the ancient heavenly connection to the starry dynamo in the machinery of night."

And if they found Allen Ginsberg indecent, is there any doubt they'd come to the same opinion about James Joyce's ULYSSES, whose character Molly Bloom closes one of the most sexually charged monologues in the English language with this passage?

"... and how he kissed me under the Moorish wall and I thought well as well him as another and then I asked him with my eyes to ask again yes and then asked would I yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes."

That's the sound of indecency for you. And it's a measure of the climate of fear created by Congress that America Online felt impelled to delete all user profiles that include the word "breast" in them -- much to the dismay of countless breast-cancer survivors. Now I ask you, don't be mad at America Online, whose management has already apologized for this gaffe -- be angry at Congress, whose crazy actions have created a world in which the word "breast" is something to be afraid of.

Now at this point the proponents of this legislation will cavil -- they'll say "Look, we're not trying to ban artists or literary geniuses or brilliant comedians. We're just trying to protect our children."

To which I have two answers:

First, if you really want to protect our children, find a better way to do it than to force all of us who engage in public speech and expression to speak at the level of children. There are laws already on the books that prevent the exposure to children of obscene speech, and that prohibit child abuse -- before you start passing new laws, make sure you understand what the old laws do. It may be that no new legislation is required at all.

Second, remember that freedom of expression isn't just for artists or literary geniuses or brilliant comedians. It's for all of us -- it provides a space for each citizen to find his own artistry, his own genius, his own comedy, and to share it with others. It also provides a space in which we can choose -- and sometimes must choose -- to say things that others might find "patently offensive." And the First Amendment protects that space most. Don't pass laws that undercut the very foundation of a free society -- the ability to speak freely, even when others are offended by what we have to say.

I'm speaking now to you, Congress. If you pass a telecommunications bill with this "indecency" language in it, we will remember. And we will organize against you and vote you out.

This isn't single-issue politics -- it's politics about the framework in which *all* issues are discussed, and in which even offensive thoughts are expressed. And you, Congress, are threatening to destroy the framework of freedom of speech on the Net, the first medium in the history of mankind that holds the promise of mass communications out to each individual citizen.

At this point, Congress, I'm not afraid of sexual speech on the Net. And I'm not afraid that my little girl will encounter sexual speech on the Net. What scares me is what you will do to the First Amendment on the Net if we don't stop you. That's more of a perversion than any citizen of the United States should have to witness.

And I'm telling you now, Representatives and Senators, we stand ready to stop you. Listen to us now, or soon you will be listening to this sound: (Sound of ripping paper.) That's the sound of what we will do to your political future if you forget the oaths you swore.

Long live the First Amendment and the Constitution. And long live freedom of speech on the Net.

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