According to the rapid expansion of personal computer and World Wide Web, the proliferation of pornography on Internet has brought concerns of the public about its rampant phenomenon and the protection of children. As a concrete counter action, in January 1995, Senator James Exon (D., Nebraska) proposed the CDA amendment to restrict sexually explicit material on the Internet. This attempt of government regulation again sparked the fierce antagonism between free speech advocates and child-welfare advocates supporting the regulation.

Meanwhile, Time magazine's cover story on cyberporn--based on the survey report written by research team at Carnergie Mellon University--created a major influence on and accelerated public and Congress debates surrounding regulation of pornography on the Internet. (1) Cyber civil liberty groups, including various human rights and interests groups, vigorously deployed the anticensorship campaign, arguing that the bill would bring chilling effect on free speech on the Internet.

Since the legal enforcement, the prohibition of obscenity and the regulation of pornography to protect children have been controversial concerning compatibility with free speech rights and effects of both legal actions and exposure to sexually explicit material. In addition, the applications of current obscenity laws and regulations in a novel setting has doubled the controversy and caused new conflicts as it is occurring in other legal areas such intellectual property, trade laws, and privacy. New legislation based on the analogies of traditional media have consistently been created to regulate Internet content in Congress like the Communication Decency Act, Children Online Protection Act, and School Online Filtering Act and they have been ruled their unconstitutionality in courts.

The purpose of this paper is to examine likely best regulatory alternatives to prohibit obscenity and to protect children from sexually explicit content on the Internet. This paper contents that regulation of obscene materials and child pornography should be continued by combination of current laws and new standards, and that voluntary use of filtering software and multiple rating systems will be temporarily useful until their incompleteness are supplemented by advanced technology

This paper puts arguments in the legal and sociopolitical context to better understand the controversies concerning the scope of regulation policy and laws of pornography. In my view, the regulation of pornography has historically been contingent not only on court decisions but also on the battle of political and ideological power. Part II offers respectively a brief overview of current obscenity and indecency regulations. Part III deals with different positions on obscenity and indecency regulations among free speech advocates, conservative Christian groups, and anti-pornography feminists. Part IV examines the clashes between the traditional regulatory concept of the physical world and new interactive technology which seamlessly connect people. Finally, part V and VI attempts to suggest legal alternatives combined with social remedies arguing for open discussion of sex for young adults, parents, and teachers.

II. Understanding of Obscenity and Indecency in Legal Context

In everyday life, people commonly use pornography to describe sexual materials. However, in a legal community, sexual speech is strictly distinguished as obscenity and indecency. Obscenity is unprotected by the First Amendment, and obscenity laws make it a crime to sell obscene material, even to willing adults. The term indecency is less sexually explicit than obscenity, and is protected by the First Amendment for adults. Pornography is protected unless it is determined to be obscene.

1. Determination of Obscenity: From the Hicklin Rule to the Miller Test

The first widely used definition of obscenity was the Hicklin rule borrowed form British law.(2) The Hicklin rule was so broad that it facilitated the prosecutions by federal and state agencies: If something is obscene to a child, it is obscene for everyone and its distribution or sale can be completely banned. In 1957, Hicklin was abandoned.

The Supreme Court adopted a new definition for obscenity in the 1950s and the early 1960s. In the 1957 decision of Roth v. United States, (3) the Supreme Court established the test that obscenity was not protected by the First Amendment. Roth is the first attempt to define the scope of modern obscenity law. (4) After Roth, in 1962, the Supreme Court limited the scope of obscenity regulation, holding that obscenity should be determined by a three-prong test. (5)

In Miller, (6) for the first time, a majority of the Supreme Court reached agreement on a definition of obscenity following below:

(a)Whether "the average person, applying contemporary local community standard" would find that the work, taken as a whole, appeals to prurient interest; (b) whether the work deficits, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (7)

Miller established the concept of contemporary local community standards, which continues to be the law today, abandoning national standards of the Roth-Memoirs test. Since Miller, obscenity has been evaluated according to the accepted local community standard. For each community has different tolerance about public depiction of sexual conduct.

After Miller, Hamling (8)clarified the first prong of the Miller test that the "average person" includes all adults, except children, who comprise the community.

Jurors can consider the impact of the material on sensitive or insensitive persons in

in relevant community standards. In most jurisdictions, the term "local community standards" has been translated to mean "state standard." All communities within the same state share the same standards. (9) The question of applicable community standards becomes an important factor in cases that involve the shipment of pornographic material between states within the U.S. and in cases that involve the importation of sexually explicit material form outside the U.S. The application of local standards is causing increasing problems as more mass media and telecommunications data are distributed nationally and globally.

2. Variable Obscenity: Two Standards for the Protection of Children

The Miller test does not apply in three situations: dissemination of sexual materials to minors, child pornography, and the private use of obscene material at home. In Ginsberg v. New York in 1968, (10) the First Amendment permitted New York State to prosecute the bookstore owner who sold pornographic magazines to a 16-year-old-boy. The magazines were legally sold to an adult. Two different standards, one for adults and one for minors, are permitted for a compelling state interest in protecting child welfare. However, a simple ban of all nudity violates the First Amendment. The definition of material that could not be distributed to minors requires narrow and well-defined circumstances. (11)

In 1982, the Supreme Court unanimously upheld a New York statute limiting the distribution of child pornography. (12) The state law prohibits any person from knowingly promoting a sexual performance by a child under 16 years and from distributing such materials. The Court held that child pornography defined in the statute was unprotected speech, even if material might not be obscene under the three-part Miller test. In order to stop the sexual exploitation of children, some states make it a crime to merely possess child pornography, (13)as an exception for Stanely. (14)

In Stanely, the Supreme Court ruled that individuals might possess obscene material in the privacy of their homes. However, states can prohibit transportation, distribution and reception of those obscene materials. (15)

3. Current Obscenity Statutes and Regulation in Broadcasting

All state and federal statutes regulating obscenity are subject to limitations constructed by the Supreme Court in the First Amendment. The Supreme Court--based on the Miller test--deals with many obscenity cases brought by the statutes.

Each state has different statutes regulating selling, distribution, transportation, manufacturing, exhibiting, mailing, and advertising of obscenity. While state statutes and legal enforcement mostly devote to ban obscenity in adult bookstores and adult theaters, broadcasting content regulation and three federal obscenity statute are closely relevant to Internet pornography regulation.

a. Indecency Regulation in Broadcasting

Among other mass media, broadcasting has given the strictest restriction and less First Amendment protection in light of sexual content regulation because of its unique pervasive presence. Title18, section 1464 of the Federal Criminal Code gives the FCC the power to revoke any broadcast license if the licensee transmits obscene or indecent material over the airwaves. Cable and the print media art not subjected to this kind of content regulation. (16)

In Pacifica, (17) the Supreme Court upheld the FCC ruling that radio station violated the federal law WBAI in New York City when it aired filthy words referring to sexual activities or excretory organs in an afternoon broadcast. The Court concluded the words were indecent as broadcast. However, Pacifica only applies to over-the-air broadcasting. Radio and television stations are prohibited from carrying sexually oriented indecent programs between 6 A.M. and 10 P.M. Congress has attempted to apply this broadcast regulation model to cyberspace in the recent Communications Decency Act.

b. Three Federal Statutes to be applied to the Internet

As opponents of new legislation to regulate Internet content argue, three federal laws are presently employed to prosecute obscene material on the Internet. Meanwhile, existing laws cause many problems in applying "contemporary local community standards" of Miller to the Internet.

The first is the statute to prohibit child pornography in 18 U.S.C. 2252 (1988). This federal statute can prosecute materials that visually depict a sexual performance engaged in children under 18 years old. Based on this statute, Department of Justice presently investigates "traffickers in hard-core child pornography, in child predators, and in large-scale and multi district commercial distributors of obscene materials" the Department acknowledges that the national investigation has resulted in 196 indictments, 75 information, 207 convictions, and 202 arrests. (18)

The second is 18 U.S.C. 1465, *(19) which bans the interstate transfer of obscene material for selling and distribution. Under the Commerce Clause of the Constitution, the federal legislature has the exclusive power to regulate interstate commerce. Based on this statute, U.S. Postal Service has traditionally played a role in regulating the flow of pornographic material in the mail. Thomas was prosecuted by transportation of computer image files, being applied to this statute. (20)

The third federal statute is 47 U.S.C. 223 (a). This law aims at proscribing "dial-a porn" telephone businesses. It is federal offense to make "any comment,

request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent; - - - shall be fined not more than $ 50,000 or imprisoned not more than six months or both." Providers must restrict access to minors under 18 years old according to FCC regulations, which require providers to use access codes, payment by credit card or scrambling devices.

The Communications Decency Act--changing the word " telephone" into "telecommunications device" and "interactive computer services"-- amended the section entitled "Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications," which is a part of the Common Carrier subchapter of the Wire and Radio Communications Chapter of title 47. (22)

Sable in 1989 found that indecent sexual expression was protected by the First Amendment while obscene interstate commercial telephone messages were banned and criminalized. Sable rejected to apply Pacifica's finding of "uniquely pervasive" medium to telephone calls. (23)

III. Emerging Controversies of Sexual Content on the Internet: Politics and Ideology of Pornography

Regulating pornography presuppose its possible harm on society and human value. In fact, contemporary scientific studies have not resolved the question as to whether pornography increases or decreases sexual aggression in society. Opponents and proponents of pornography regulation toss contradictory consequences about social and psychological impact of sexually explicit text and imagery. Surely, each camp argues different policies and social measures based on their different political and ideological positions rather than scientific evidences. Even so, they can be roughly categorized into three: Conservative Christian groups and child-welfare advocates, anti-pornography feminists, and absolute free speech advocates, including anti-censorship feminists.

 
* Conservative Christian groups and Child Welfare Advocates

Conservative Christian groups and the so-called pro-family advocacy groups (24)

decry the recent phenomenon of sexual content on the Internet. They argue that pornography undermines moral standards and human dignity, and stimulate antisocial acts like rape, child molestation, sexual violence, and other deviant sexual behavior.

One director of anti-pornography activist group argued that current laws do not play an appropriate role in regulating "pornography-related activity" in cyberspace. Recalling that The Washington Post called the Internet the largest pornography store in the history of mankind, she provided the numbers emphasizing that pornography is "the third largest sector of sales on the Internet, generating $1 billion annually." She also offered that there are an estimated 72,000 pornographic sites on the WWW alone, with approximately 39 new explicit sex sites every day." (25)

She also argued that it became relatively easier for children to encounter and access pornographic imagery and link to those Web sites than to find adult material in the physical world. People can get pornography far more freely via the Internet than any other media. Thus, the burden should be primarily on pornographers and distributors, not solely on parents to deal with the issue of children's exposure. (26)

Thus, easier access to pornography on the Internet calls for stronger law enforcement. Overall, conservative Christian groups and child advocacy groups demand increased regulation and suppression of child pornography and pornographic materials in the marketplace.

2. Anti-pornography Feminists: Harmful Effects on Society and Women

Another fierce debate on pornography regulation is in feminist groups. Feminist perspectives on pornography are polarized by different ideological positions on free speech, assessment of harmful effect of pornography, and measures dealing with pornography.

Anti-pornography feminists argue for regulation of subordinating and degrading women in pornography. They attempted to legislate for a ban of female exploitation in pornography, arguing that pornography both discriminate against women and provoke violence against women. In 1984, Indianapolis passed such a law. However, U.S. district judge Sarah Evans Baker ruled that anti-pornography law was unconstitutional because it was so vague that it could prohibit the kind of expression protected by the First Amendment. The judge did not agree that protection of women from sexual exploitation was a compelling state interest unlike child protection. (27). Cass R. Sunstein (28) also argued that pornography was a significant social problem producing serious harm, "gender-related harm". His focus on social problem of sexual violence is a little bit different from the anti-pornography feminist perspective focusing on degradation and discrimination of women. (29)

MacKinnon, strong anti-pornography scholar, emphasized that the Internet accelerated the spread of pornography and more visibly reflected a reality that was already pervasive in society. (30) For example, the Rimm study showed that more than ninety-nine percent of all the pictures studied on the AABBS presented women having sex with animals.(31) Without the Rimm study, proliferation of pornography on the Internet is generally accepted by parents and others.(32)

Anti-pornography feminists want to legislate new laws to prohibit female pornography on the Internet and in other media and ask to even more strictly apply current laws. For the quantity of pornography on the Internet is increasing, its quality is deteriorating, and access to it is getting easier.

3. Absolute Free Speech Advocates

Absolute free speech tradition vigorously opposes the prior restraint and publication censorship. Along with the rapid expansion of ordinary people's access to computer networks, emerging cyber civil liberties groups (or cyber libertarians) (33) have played a leading role to preserve free speech on the Internet. Based on the same First Amendment philosophy, anti-censorship feminists (34) emphasize women's liberation from parietal sexual suppression.

a. Cyber Libertarians

For certain libertarians, obscene is speech not sex, so it is eligible for the First Amendment protection. They oppose any form of legal regulations. (35)

For others, for instance, the ACLU unwillingly accepts that "only a narrow range of 'obscene' material can be suppressed." (36) However, this camp notes that cultural censorship was not far ahead from political censorship, saying that even the relatively narrow obscenity exception serves as a vehicle for abuse by government authorities. (37)

The ACLU criticizes that the Supreme Court has supported the restriction of sexual speech based on moral grounds. The bottom line is that individuals have rights to choose what they see and listen to. (38) With this emphasis on individual liberty,

the regulation of indecency in broadcast is a result of "the politically seductive goal of 'protecting the children' is perilous" because it distracts safe guarding freedom of speech in a democracy. (39) The regulation of pornography or indecency is a violation of the First Amendment.

This camp opposes the regulation of indecency and claims the employment of the print model regulation in the traditional and new media. Unlike the situation with broadcasting or cable television, children cannot easily encounter across sexually explicit or offensive pictures on the Internet. Downloading adult imagery requires much capacity of computer savage and considerable effort. (40)

b. Anti-censorship Feminists: Harmful Effects of Sexual Censorship on Society and Women

Anti-censorship feminists argue that anti-pornography laws doubly flawed: they undermine both free speech and equality (41).Anti-censorship feminists criticize that anti-pornography campaign simply reproduces the assumptions and ideology of the dominant culture concerning sexuality. (42) A sexually censorious regime undermine women's bodily and sexual freedom and conservative political forces often use sexual censor as a major weapon to overturn feminist gains. (43)The primary harm of pornography on women's rights comes from sexual censorship, not from explicitly sexual material per se. (44)

These feminists note that the critiques of obscenity law have been advanced by individual justice in the U.S. Supreme Court, and argue that the suppression of obscenity is danger to a open and free society (45) Accordingly, anti-censorship feminists reject the approach that government and laws can protect women from harmful sexual text and images. (46)

Meyer argueS that we should ignore the growing presence of cybermut and concentrate on expanding access to online sexual discussion. (47) The Internet offers tremendous possibilities as an open forum to foster honest discussion of sexuality for the young and to liberate women. Open discussion can teach what is wrong with pornography, and it can formulate a new sexual truth against falsehood of human sexual activity depicted by pornography. (48) In this sense, the Internet may be benefits. Cybersex can serve to an alternative method of satisfying sexual urges rather than rather than stimulating them. (49).

In fact, anti-censorship feminists reject any form of sexual censorship and do not consider the Internet sexual speech as problems. Rather they assert that it is even more difficult to access to the Internet than nearly anywhere else in our culture: Late night cable video is more easily taped into than is Internet porn. (50)

To summarize, social and political groups have been polarized concerning the regulation of Internet pornography. In a moderate position, Branscomb carefully predicts that it may be a just passing phase and finds similarity from the initial success of the French Minitel used as a dandy tool for arranging sexual rendevous. (51)

In addition, some assert that online digital pornography less cause harm to local community than pornography in bookstores on street corners because it is used in private home rather. (52)

However, as we observed in recent political history, pornography policy and regulation are often established by politics and battle between conflicting political and ideological groups. In 1969, The Commission appointed by President Lyndon Johnson recommended to repeal all obscenity laws restricting the use of erotic materials by adults in its Report of the Commission on Obscenity and Pornography, but the new president, Richard Nixon, rejected the its conclusion and changed the makeup of the Supreme Court. The new Court established the legal definition of obscenity in Miller test. (53)

Politics surrounding pornography regulation continued surrounding new computer technologies between child advocates and conservative political force,(54) and free speech advocates. Congress has sought to create new laws to regulate obscene and indecent content on the Internet. Congress enacted the Communications Decency Act in 1996 and the Child Online Protection Act in 1998. (55) Additionally, two new bills which mandate to install filtering software on all computer terminals of public elementary and secondary schools were introduced in the House and in the Senate: respectively the "Safe Schools Internet Act" and the "Children's Internet Protection Act." Filtering software blocks access to certain online sites which are programmed to restrict access. (56)

IV. The Clash When Old Concept Meets New Technology

There are two methods to regulate Internet pornography. One is to rely on existing federal obscenity statutes as examined in the previous section; the other is to legislate new laws to particularly aim at Internet pornography prosecution. There are three cases involved in Internet pornography regulation to illustrate problems when old concepts of regulation clash with the Internet.

1. When Existing Laws and Rules Apply to the Internet: Contradiction with Geographical Boundaries in Community Standard of the Miller test

Thomases (57) were convicted in violation of federal obscenity statutes for transportation of obscene material through a computer network. They operated an adult computer bulletin board system called Amateur Action from their home in California. Subscribers who paid money for membership can download allegedly obscene material from the AABBS in Tennessee. An undercovered postal

inspector--working with an assistant U.S. attorney in Memphis-- subscribed to the BBS to go after it. He downloaded graphic imagery files of sexually explicit content and it led indictment in violation of obscene laws of Tennessee.

The 6th U.S. Circuit Court of Appeals upheld that transmission of computer obscene images violated the statute, 18 U.S.C. 1465 (58) for knowingly using and causing to be used a facility and means of interstate commerce--a combined computer/telephone system-- for the purpose of transporting obscene material in interstate commerce. (59) The court focused on the dissemination of any obscene material regardless of the means used to effect that end.

The defendant (Thomases) tried to move their case from Tennessee to California where they ran the business, but the Western District of Tennessee judge denied their pre-trial motions for the reason that the alleged obscene material was downloaded and Memphis was affected by the distribution of it. (60) The appeal court held that a person residing in Tennessee could download and view the sexually explicit images transported on one's computer screen, and/or print them out in hard copy. (61)

The court argued that there is no need to adopt a new definition of community in this case because Thomases advertised and sold obscenity, and they knew that they had a member in Tennessee through their membership requirement.

`It has long been held to be constitutional to prosecute pornography vendors located in liberal jurisdiction when they knowingly or intentionally sell obscenity or sent it into conservative jurisdiction. Postal inspectors often work a sting to investigate whether pornography vendors distribute obscene materials into their states. (62)

However, this case brought up the debate that the jurisdiction application in Thomas infringed on the first prong of Miller test, in which the Supreme Court recognized that different geographic communities have different moral standards.

Memphis standard was applied to Thomas of California.(63) The significant problem is that electronic bulletin board system in its nature is not able to have geographical limitation. Anyone, member of the BBS can access and download obscene images from the host computer without BBS operators' knowing about transmission of the images. Even though BBS operators did not intend to send them out, under the Miller test all BBS are eventually subject to obscenity prosecution in all states to which the sexual images or texts are distributed.

Accompanying problem is that there is no guarantee to screen users' geographic locations because they can freely use online address in elsewhere. The current technology does not allow the material to be posted selectively within certain limited communities. Accordingly, this could mean that the most restrictive law in one jurisdiction could be applied to other jurisdictions. This issue also accompanies the practical problem that state and federal obscenity law faces when the source of obscenity is outside U.S.

Eventually, venues shopping and various community standards could bring massive chilling effect on free speech on the Internet to avoid threats of potential prosecution. Zanghi suggests "contemporary standards" of "society at large" without geographic limitations, as conversely the Miller test adopted community standards from national obscenity standards. (64) According to Zanghi, "Contemporary standards" needs expert's testimony to determine obscenity under new standards, and statistical testimony based on empirical studies of obscenity. (65) In Thomas, the court did not introduce expert's testimony. Measuring obscenity seems to be easier than measuring the harmful effect of obscenity on society even though it has still difficulty in the definition of obscenity.

2. Clashes When New Legislation from Old Concept Meets the Internet

Each state can legislate different statute to regulate obscenity. When Congress passed the Communications Decency Act, new federal statute to regulate indecency on the Internet, the state of New York also legislated the state version of the CDA. (66) Interests groups, including the commercial and the noncommercial, filed respectively lawsuits and courts attempted to find appropriate analogy for the purpose of First Amendment analysis. Particularly, Pataki illustrates the problem of Internet regulation at a state level.

a. In ALA v. Pataki in New York, Is the Internet like a Highway or Railroad?

The American Library Association (ALA) representing fourteen organizations, including book sellers, publishers, computer software companies, for-profit or non-profit Web operators, and a civil liberty group filed a lawsuit (67) against New York Penal Law 235.21(3) (the "Act"). (68) The ALA at al. argued that the Act violated the First Amendment and the Commerce Clause of the Constitution.

The Act is a criminal statute that a person is guilty of disseminating indecent material to minors ("harmful to minors") in the second degree. The Commerce Clause under the Constitution prohibits the individual states' interference with the flow of interstate commerce in two ways. It restricts discrimination aimed directly at interstate commerce and bars state regulation that unduly burden interstate commerce because certain types of commerce require consistent treatment and regulation only on a national level. (69)

Plaintiffs argued about potential chilling effect on free speech and burden on their business on the Internet or through computer networks. For they cannot effectively prevent their Web sites or discussion groups from being accessed by New York users, (70) as, in Thomas, already discussed the technological unfeasibility to limit access to the Internet according to users' geographical locations.

The court noted that the state compelling interest in protecting children was necessarily concerned with interstate communications. Nevertheless, the court agreed that the Act would have forced plaintiffs to self-censor against the threat of criminal liability and they would lose sales and goodwill generated by their use of the Internet related to censored and noncensored materials and resources.

The Southern District Court of New York ruled that first, the Act unconstitutionally projected New York law into interstate conduct occurring outside New York. Second, the burdens on interstate commerce caused by the Act exceeded local benefits protecting children from harmful material. Third, the Act unconstitutionally subjects interstate use of the Internet to inconsistent regulation. The court made an analogy of the Internet to highway or railroad, recognizing that Internet's nature of seamless connection could not be effectively regulated by any single state regulation. Inconsistent state regulation would cause only chaos and jeopardize the growth of the Internet, national infrastructure of communications and trade. For each state would enact laws subjecting users to conflicting obligations. (71)

The court understood that state's jurisdiction is geographically limited, on the contrary the geographical limitation is meaningless on the Internet. This case also illustrated the contradiction the concept of physical geographic jurisdiction with novel idea of universal cyberspace, which consists of various, numerous cyber communities. The court ordered preliminary injunction of the Act on June 20, 1997. In this case, the court only dealt with the violation of Commerce Clause, leaving the matter of First Amendment to the Supreme Court, who looks at the constitutionality of the CDA.

b. Is the Internet Much like Broadcasting or a Dial-a-porn?

1) The Communications Decency Act

The CDA came into being as Title V of the Telecommunications Act of 1996, which sweepingly reformed the Communications Act of 1934. President Clinton signed the Telecommunication Bill into law on February 8, 1996; and on the same day, the ACLU, representing nineteen other organizations, filed a lawsuit. (72)

The ACLU et al. has challenged two provisions of the CDA: knowing transmission and display of "indecent" or "patently offensive" messages to minors. (73) They argued that the definitions of indecency and patent offensiveness were so overbroad and vague that the CDA could have abridged legitimate online discussions between adults. It could even have punished an e-mail conversation between a parent and a child, or the display of classic arts. The CDA was a criminal statute, which could have punished violation with a jail term of up to two years and a $ 25,000 fine.(74)

The CDA offered two affirmative defenses limiting the application of the two provisions above by using available technology in good faith to prevent access of minors to indecent content, or requiring credit card or other feasible age verification systems that many commercial providers already employ. (75)

The plaintiff argued that "no technology exists" which allows those restrictions in news groups, mail exploder, or chat rooms and the cost of adult age verification systems for all noncommercial speakers on the WWW would be "prohibitively expensive." (76)

The Supreme Court (77) agreed with this contention. Three points can be made in the ruling that Justice John Paul Stevens wrote for the Court. First, Justice Stevenson made an analogy of the Internet to a "dial-a-porn" (A business offering sexually oriented prerecorded telephone message) in terms that both can have effective devices (e.g. credit cards and access codes) to prohibit minors' access to commercial pornographic, indecent content while protecting adults' rights of access to it.(78) The Court took, instead of Pacifica, Sable in which sexual speech in indecency, not in obscenity is protected by the First Amendment. This analogy meant that the Court saw the Internet as a totally different medium from broadcasting and cable TV, whose strict regulations could therefore not be applied to the Internet.

Second, The Court noted that the definition of the words "indecent" and "patently offensive" is too vague and its vagueness caused problematic concerns because the CDA is a content-based regulation of speech and a criminal statue. To the extent that the CDA's "indecent" standard is only one part of the three-prong Miller test, it did not limit the uncertain sweep of the broad definition unlike Miller's other two prongs--"taken as a whole" and "social value" requirement impose some limitations to the definition of obscenity. This argument implied that if its language was more carefully tailored, the CDA's burden on protected speech could be justified.

Third, the Court focused on technological unfeasibility to screen minors access to indecent content without denying assess of adults. The Court rejected the government's age verification defense could not be workable because of its technological and economical implausibility for noncommercial as well as commercial in part. Concerning the technological feasibility, Justice O'Connor argued in his concurring in part and dissenting in part opinion that if technology was available for screening minors' access to indecent material, the CDA could be constitutional.

The plaintiff groups' main concern was over the chilling effect that the CDA's vagueness may have had on the First Amendment. In fact, they feared that the law would end up giving rise to political censorship on the Internet. These groups also insisted that the Internet be allowed to evolve as an unprecedented medium having innovative potential for democracy and society; and that, therefore, the Internet, like the print media, deserve the highest degree of First Amendment protection.(79) The Supreme Court agreed that the Internet is the most participatory and democratic medium where "anyone can become a town crier with a voice that resonates farther than it could from any soapbox." (80) with relatively unlimited, low-cost capacity for communication of all kinds.

2) Child Online Protection Act

The Child Online Protect Act ("COPA") (81) is a Congress's second attempt to regulate sexual content on the Internet after the defeat of ACLU v. Reno. (82) The ACLU representing 17 organizations, including among others, civil liberties groups, Web site operators, content providers of sex information for gay, lesbian, and those with disabilities and illness, and booksellers, filed a lawsuit challenging the COPA on October 22, 1998. The Eastern District of Pennsylvania granted the preliminary injunction prohibiting enforcement of the law on February I, 1999.

The COPA makes it a federal crime to "knowingly " communicate "for commercial purposes" material regarded as "harmful to minors." Criminal penalties include fines of up to $50,000 for each day of violation, and up to six months in prison. The Act also has the option to bring a civil suit against individuals with the same amount of fine of up to $50,000 for each day per violation. (83)

The plaintiff groups argued that COPA was unconstitutional because the regulation of speech which was "harmful to minors" restricted adults' protected speech and imposed an economic and technological burden on speakers on the Web. In addition, its limited application for "commercial purpose" could not defense noncommercial providers. They argued that it would be chilled speeches on the Web.(84)

The court concluded in the plaintiff groups' side. (85) COPA is a content-based regulation of speech which is protected as to adults. The First Amendment protects nonobscene sexual expression, and the plaintiff did not challenge obscenity regulation of COPA.

First, the court again made an analogy of the Internet to dial-a porn, rejecting the argument that broadcasting regulation should be applied to the internet to promote government compelling interest of protecting minors from harmful speeches. Thus, the court concluded that nonobscene expression of adults are protected by the First Amendment on the Internet.

Second is about the term "commercial purpose" COPA limited its applicability to only commercial pornographers who "knowingly makes any communication for commercial purpose", that is, those who distribute harmful materials on the Web to minors as their business. The defendant argued that the plaintiff s were not "engaged in the business "of selling or distributing harmful to minors materials under the law because the content on their Web is not harmful to minors materials. However, the court pointed out that COPA did not narrowly tailor and imposed liability on a speaker who make communication "that includes any material that is harmful to minors" on the Web. The court construed that "engaged in business" did not necessarily mean that the person makes a profit or that the making or offering to make such communications was the person's sole or principal business or source of income. The plaintiff groups are subject to the category of a speaker "engaged in the business."

The plaintiff contended that such sexual material could be considered "harmful to minors" by some communities. COPA did not define the relevant "community" for purpose of determining what is "harmful to minors" in the global medium of cyberspace. (86)

Third, the court found that technology and cost to screen minors' access was still burden on the Web sites of the plaintiffs and non-profit organizations even though it was not burden for commercial pornographers. The court considered that this burden eventually would be obstacles of free speech on the Web, and limit free speech rights of adults.

Although sexual information on plaintiff groups' Web sites is not considered harmful to minors, the plaintiffs cannot avoid being linked to other Web pages containing content harmful to minors or monitoring those materials to be posted by users. All of the plaintiff groups ranging from non-profit to for profit, have some sexual content and/or have members who post sexual content on their Web sites and/or other sites. With regard to limitation of minors' access, another point is that even though implementing credit cards or pin cards screening process to identify users' age is economically affordable or technology feasible, those identification processes would bring decrease of users of plaintiffs' web sites, and therefore result in serious economic loss.(87)

In addition, the affirmative defenses did not reduced that burden which would bring the loss of users of their Web sits because of loss of anonymity. "The Court found no effective way to determine the age of a user who is accessing material through email, mail exploders, news groups, or chat rooms.

(To summary)

V. Different Regulatory Ideas on Pornography

1. The Idea of Zoning of the Internet

Justic O'Conner (88) already suggested the concept of zoning cyberspace which denies access to only minors, in his concurring in part and dissenting in part opinion of the CDA case. Zoning of the Internet from is an analogy of real-space zoning from adult book stores and theaters.(89) According to him, the constitutionality of the CDA is contingent on the development of technology which make age verification available to restrict minors' access to indecent material because adults' right to access constitutionally protected speech are not prohibited. For the limitation of minors' access to "indecency" or "harmful to minors" content have long been held by states. The technological possibility of creating "locks" within the Internet is also similar to for constitutional regulation of indecency. (90)

The problem is that the zoning technologies are still expensive and burdensome on speakers, and are not available for all categories of the Internet like e-mail, mail exploder, and newsgroups. Hence, Lessig (91) idea is that the more court cases dealing with current Internet conflicts Internet are better until zoning device is available.

2. The Print Model Based on User Control over Content

Cyber Civil liberty activism suggests the print model as a regulatory framework for the Internet.(92) As observed in the positions of free speech groups on pornography and obscenity, they rejects any form of content regulation and emphasize users' choice of what they want to see and hear. The print model brought form the American press in the nineteenth century is based on freedom of government intervention and free flow of information for diversity.(93) This analogy comes from the belief that the Internet differs from broadcasting, cable, and some characteristics of telephone system because users can control over the content that they access.(94) Radio and television has unique pervasiveness, and thereby the only way to protect children from sexual content is to keep those speeches off the air.

They also oppose the analogy of dial-a-porn to the Internet because the determination of obscenity based on community standards doctrine is not applicable. (95) Instead of legal regulation, based on the print model, they suggest various multiple filtering systems which enable users to select or block access to certain content based on various criteria according to their own judgements; and third-party rating systems which could be used for programming filtering and blocking of certain content. (96)

Among Internet activist groups, the CDT encourage the use of various rating and filtering schemes whereas the ACLU oppose a ratings system in that ratings is an another form of censorship. Both of them oppose mandatory installation of filtering software in public schools. (97)

VI. Conclusion

The core arguments concerning Internet content regulation are about "obscenity," unprotected speech and "indecency," protected speech. When current obscenity laws apply to the Internet, local community standards cause problems of jurisdiction

because content providers cannot limit Internet users' connection, downloading, posting, and putting linkage. Now we need new standards to determine obscenity in the era of information highway. As Zanghi suggested, contemporary standards of society at large without geographic limitations, instead of the Miller test. Traditional principles of obscenity regulation are effective in the new media if new standards are established. More court cases and more discussion will be examined and then new standards will be developed.

In terms of indecency regulation, in my view, the concept of cyberspace is the best possible answer. Constitutionality of indecency regulation relies on the development of technology.

Another possible alternative is to use the Internet as an open educational forum for young adults to discuss human sexuality and healthy sex information. To be effective,

parents, teachers, and other interested adults should participate in discussion , not to teach, but to listen to them and to communicate with them.

1. Time ran the story in the July 3, 1995 issue, while the CDA was discussed in its initial stage in Congress. An eighteen month study entitled "Marketing Pornography on the Information Superhighway," which was going to be published in The Georgetwon Law Journal (Vol. 83: 1849, 1995), was primarily conducted by Martin Rimm, an undergraduate in electrical engineering. The Rimm study's subtitle "a survey of 917, 410 images, descriptions, short stories, and animations downloaded 8.5 million times by consumers in over 2000 cities in forty countries, provinces, and territories' implies the scope and methodology of the study It claimed that 83.5 percent of those pictures were pornographic and the most popular pictures were the hard-core pornography such as pedophilia, bondage, sadomasochism and bestiality. Conservative congressmen and Christian Coalition Director Ralph Reed urged to back up the findings of the study, on one hand; some experts on Internet content, for instance Professor Donna Hoffman of Vanderbilt University, criticized that the study had "serious conceptual, logical and methodological flaws and errors." (See Gary Chapman, Not So Naughty, The New Republic, 11 (July 31, 1995); Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, [http://www. dais.net/cannon/cda/cannon2.html], 49 Federal Communications Law Journal 51 (Nov. 1996).

2. Regina v. Hicklin, L.R. 3 Q.B. 360 (1868).

3. 354 U.S. 476 (1957).

4. John S. Zanghi, J.D., Community Standards in Cyberspace,

21 Univ. of Dayton L.R. 95 (1995) at 98.

5. Memoirs v. Massachusetts, 383 U.S. 413 (1966).

The three main parts of the Roth-Memoirs test
* The dominant theme of the material, taken as a whole, appeals to an average person's prurient interest in sex. This modified the Hicklin rule in two ways :
* Material that was offensive to children or overly sensitive persons was no longer declared obscene for all.
* The entire work, not just a part of a book or film, must be considered when determining whether it is obscene.
* The material is patently offensive because it affronts contemporary community standards relating to sexual matters. It was assumed that there was a single, national standard that was applicable to all parts of the country.
* The material is utterly without redeeming social value. It has no value at all.

(Don R. Pember, Mass Media Law, (1997) at 418).

6. Miller v. California, 413 U.S. 15 (1973)

7. Id at 24 (citation omitted).

8. Hamling v. United States, 418 u.s. 87 (1974).

9, Smith v. United States, 431 U.S. 291 (1977).

10. 390 U.S. 629 (1968).

11. Erznozink v. City of Jacksonville, 422 U.S. 205 (1975).

12. 18 U.S.C. 2252 (1988).

13. New York v. Ferber, 458 U.S. 747 (1982).

14. Stanley v. Georgia, 394 U.S. 557 (1969).

15 United States v. Orito, 413 U.S.139, 140 (1973).

16. Kenneth C. Creech, Electronic Media Law and Regulation, p 20

17. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

18. U.S. Department of Justice letters to Chairman, Committee on Commerce, U.S. House of Representatives, October 5, 1998. [http://www.aclu.org/court/acluvrenoII_doj_letter.html]

19. 18 U.S.C. 1465, The statute provides:

Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.
* United States v. Thomas, 74 F. 3D 701 (1996) The 6th U.S. Circuit Court of

Appeals.

21. John S. Zanghi, J.D., Community Standards in Cyberspace, at 111

22 Robert Cannon

23 Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)

24. [http://www.filteringfacts.org/friendly.htm] (This site provides linkages to several anti-pornography activist groups such as American Center for Law and Justice, American Family Association, Dallas Association for Decency, Enough is Enough, Family Research Council, etc. For instance, Family Research Council is a large national pro-family group that is active in protecting children from' Internet pornography. K.I.D.S., which calls for "Keep the Internet Decent and Safe," claims to protect children from Internet pornography in public libraries.)

25. Cathleen A. Cleaver, The Internet: A Clear and Present Danger? This speech was delivered at Boston University on October 29, 1997, as part of a College of Communication Great Debate. [http://www.frc.org/podium/pd97k2pn.html]

(As director of Legal Policy at Family Research Council, she was a lead speaker for the affirmative in the debate about the danger of Internet pornography, however, she willingly admitted that the Internet is a beneficial tool in daily life.)

26. Id.

27. American Booksellers Association v. Hudnut, 598 F. Supp. 1316 (1984)

As MacKinnon argued, along this line, federal authority did not treated pornographic text using a woman classmate's name via the Internet as a crime. For example, Mchigan undergraduate Jake Baker published a pornographic short story dealing with torture and murder on the Internet and was indicted on charges "for interstate transmission of a threat, not for fantasizing, not for doing something but for going to do." See Catherine MacKinnon, Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace, 83 Geo. L.J. 1959 (1995).

28. Cass R. Sunstein, Pornography and the First Amendment, 4 Duke L.J. 589 (1986). Sunstein made three points in problems of pornography First, pornography harms women who coerced into and brutalized in producing pornography. Second, pornography increases sexual violence against women and aggregates its level. Finally, pornography negatively affects both men and women in perception of gender role.

29. Id at 595.

30. MacKinnon, see supra note 27, at 1965.

31. Id at 1963.

32. See Interactive Working Group Report to Senator Leathy, Parental Empowerment, Child Protection and Free Speech in Interactive Media, July 24, 1995. [http://www.cdt.org/cda/iwgrep.txt] (Majority of content on the Internet is aimed for educational, cultural, political, and entertainment value, however, some of material is not appropriate for children.)

33. The so-called cyber civil liberties groups--such as the ACLU, EFF, EPIC, and CDT-- groups have recently gained recognition through anti-CDA activities, as new forms of citizen (or social) movements. Considering themselves as civil libertarians, these groups have accelerated their activities ever since in the area of civil liberty issues (e.g. civil rights and privacy, free speech rights, and intellectual property) and became main actors of the CDA free speech movement as a whole. The EFF (Electronic Frontier Foundation, http://www.eff.org), the EPIC (Electronic Privacy Information Center, http://www.epic.org), and the CDT (Center for Democracy and Technology, http://www.cdt.org) were respectively founded in 1991, 1994, and 1995. In early 1996, The ACLU, a long-time advocate of the Bill of Rights since 1920, launched its Web site, "ACLU Freedom Network" and filed the CDA suit. With these actions, the ACLU radically marked its initial step as a cyber civil liberties group.

34. For instance, Nadine Strossen, strong anti-censorship feminist scholar, is president of the ACLU.

35. Cass R. Sunstein, Democracy and the Problem of Free Speech (1993).

36. ACLU Briefing Paper, Number 14, Freedom of Expression in the Arts and Entertainment Sexual Speech, [http://www.aclu.org/library/pbp14.html]

37. Id.

38. Id.

39. John Corry, Doug Bandow, Adam D. Thierer, Daniel E. Troy, and E. Brandt Gustavson, with an Introduction by Edward H. Crane, Speaking Freely: The Public Interest in Unfettered Speech, The Media Institute (1995) at x.

40. ACLU Brief in Reno, 1997. [http://www.epic.org/free_speech/CDA/lawsuit/sup_ct_rief.html].

41. Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, (1995) at 34.

42. Carlin Meyer, Reclaiming Sex from the Pornographers: Cybersexual Possibilities,

83 Georgetown L.J 1969 (1995). See note 195 at 2006.

43. Id, note 141 at 1994-95.

44. Meyer. see supra note 42.

45. Strossen, see supra note 41 at 57-59.

46. Id at 14.

47. Meyer, see supra note 44 at1974.

48. Id at 1999

49. Anne Wells Branscomb, Internet Babylon? Does the Carnegie Mellon Study of Pornography on the Information Superhighway Reveal a Threat to the Stability of Society ?, 83 Georgetown L.J 1935 (1995)

50. Meyer, see supra note 42 at 1998.

51. Brancomb, see supra note 49 at 1956.

52. See supra note 13.

53. There were two presidential commissions to study the regulation of obscenity. They published different results to regulate obscenity, however, regardless of the studies, regulation policy and legal standard has been established by political goals. In 1985, President Ronald Reagan appointed a second presidential commission on pornography. The Attorney General Edwin Meese headed it. In its Final Report, the Commission did not require new laws but suggested to aggressively apply existing statutes to stop the flow of explicit sexual material like Penthouse and Playboy, popular girlie magazines, and sexually oriented films and TV programs. The work of Commission brought criticism from liberal free speech advocates.

54. Republican Contract with America's support for the Family Reinforcement Act's support for The Family Reinforcement Act called for stronger child pornography laws, suggesting "increasing the offense level by 2 levels if a computer was used" in purveying child pornography. (cited in Meyer p. 1971)

55. ACLU Action Alert, [http://www.aclu.org/action/filtering 106.html]

(Both of laws were ruled as unconstitutional. This paper deals with its controversy in following part.)

56. Id.

57. Zanghi, see supra note 4.

58. Id.

59. Electronic citation: 1996 FED App. 0032P (6th Cir.)

[http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis]

60. Zanghi, see supra note 4 at 108.

61. See supra note 59.

62. Mike Godwin, [http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis]

(Thomas case archives containing 4 articles)

63. Zanghi, see supra note 4 at 112-113.

64. Id. at 114-117.

65. Id. at 115.

66. The New York ACT was also telecommunication version of Ginsberg, see supra note 10. The Supreme Court upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered harmful to minors even if not obscene as to adults. As Justice O'Connor noted in the ACLU case, the Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone which denied access only to minors. However, the law was about print media in the physical world which is possible to create adult zone with two characteristics: geography and identity. Theses two characteristics make fundamental difference between the physical world and cyberspace. Cyberzoning does not work. (Reno v. ACLU, The Supreme Court Decision, 1997.)

67. The Southern District of New York entered a preliminary injunction enjoining enforcement of the Act (New York Penal Law 235.21(3)on June 20, 1997. The Supreme Court ruled unconstitutionality of the CDA on June 26, 1997. The New York court discussed mainly violation of Commerce Clause and left violation of the First Amendment out to the Supreme Court dealing with ACLU v. Reno. 117 S. Ct. 2329 (1997).

68.New York Penal Law 235.21(3) provides:

Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

69. ALA v. Pataki Injunction Order, June 20, 1997.

[http://www.Loundy.com/CASES/ALA_v. Pataki.html]

70. Id.

71. Id. The court stated that commercial use of the Internet is a growing phenomenon, and in terms of the definition of the commerce, noted that many of users communicating for private, noncommercial purpose are nonetheless participants in interstate commerce by virtue of their Internet consumption.

72. A few weeks later, the ALA (American Library Association), representing twenty-seven plaintiffs and users, filed a similar suit. The two cases were soon consolidated in the Eastern District of Pennsylvania. After the Philadelphia court ruled on the unconstitutionality of the CDA, the case moved directly into the U.S. Supreme Court by the government's appeal. On June 21, 1997, the Supreme Court held that the CDA was unconstitutional. The ACLU represented nonprofit advocates of civil, human, gay and lesbian, and free speech rights. The ALA represented libraries, book publishers, computer and software industries, commercial online service providers, journalism groups, and nonprofit groups and users.

73. 47 U.S.C.A. 223(A) (Supp. 1997)

(a)Whoever-
* in interstate or foreign communications-

(B) by means of a telecommunications device knowingly-

(i) makes, creates, or solicits, and

(ii) initiates the transmission of,

"any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;. . . .

223 (d)

(d) Whoever-
* in interstate or foreign communications knowingly-
* uses an interactive computer service to send to a specific person or persons under 18 years of age, or
* uses any interactive computer service to display in a manner available to a person under 18 years of age,

any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory aactivities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under Title 18, or imprisoned not more than two years, or both .

74. ACLU Brief (1997), see supra note 40. . [http://www.epic.org/free_speech/CDA/lawsuit/sup_ct_rief.html]

75. The CDA established a defense to prosecution to a person who

"has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors" to their indecent communications under 47 U.S.C. 223(e) (5) (A), and "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number" 47 U.S.C. 223(e) (5) (B)

76.ACLU Brief, see supra note 40.

77. Reno v. ACLU Supreme Court Decision, June 26, 1997. [http://www2.epic.org/cda_decision.html]

78. ACLU Brief (1997), see supra note 40.

79. Id.

80. Id.

81. 47 U.S.C. 231.

82. See supra note 40

83. 47 U.S.C. 231(a)(1) provides:

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

47 U.S.C. 231(e)(6) provides the definitions of materials "harmful to minors":

The term "material that is harmful to minors: means any communication, picture, image, graphic image file, article, recording, writing, or other mater of any kind that is obscene or that --(A) the average person, applying contemporary community standards, would fine, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole., lacks serious literary, artistic, political or scientific value for minors.

47 U.S.C. 231(e)(7) defines "minors" as "any person under 17 years of age."

ACLU v. Reno II Preliminary Injunction Order, Feb. 1, 1999. [http://www.aclu.org/court/acluvrenoII_pi_order.html]

84. Plaintiff's, Memorandum of Law in Support of Their Motion for a Temporary Restraining Order and Preliminary Injunction, [http://www.aclu.org/court/acluvrenoII_tro.html]

85. See supra note 83. ACLU v. Reno II Preliminary Injunction Order.

86. See supra note 84. (COPA intended to restrict children's access to teasers, free sexually explicit images and animated graphic image files designed to entice a user to pay a fee to browse the whole site. It is easy to encounter or accidentally link to those pages which offer these teasers, although those sites require paying by credit cards to enter next screen.)

87. Most plaintiffs provide information to users for free and rely on incomes of advertising in their web sites. The number of users (traffics on a Web site) is the most important factor to determine success of the Web. The court concerned about the development of the Internet and Web.

88. Justice O'Conner's opinion was from Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869 (1996) [http://www. ], See Ginsberg supra note in Ginzberg, the Court upheld a New York law that prohibit bookstore owners from selling pornographic magazine to minors while adults could still buy them. It crated a constitutionally suitable adult zone)

89. Lessig, see note 72. (This zoning concept based on the technologies is not totally new and is already being applied to copyright protection. The technologies, using encryption, will allow the owner of intellectual property fully to control who accesses the property.)

90. Cass R. Sunstein, The First Amendment in Cyberspace, 104 The Yale L. J. 1757, 1801 (1995).

91. Lessig, see supra note 88.

92. ACLU Brief, supra note 40. Also Jerry Berman and Dniel J. Weizner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 The Yale L. J. 1619, 1801 (1995)

93. Miami Herald Publishing Co. v. Tornillo, 418 U.S.241, (1974). Freedom of the press from government intrusion or coercion

94. Thomas G. Krattenmaker and L.A. Powe, Jr. Converging First Amendment Principles for Converging Communications Media, 104 The Yale L. J. 1719 (1995).

The authors argue that the convergence of communications technologies erase the distinction between different regulatory schemes among the different media, and that the print model will be applicable to the new media as well as the old electronic media such as broadcasting. Their regulatory principle is also based on users' choices of the content which they want to watch or access.

95. 47 U.S.C. 223 (a). (The transfer of obscenity through telephone for commercial purpose is prohibited.)See supra note (22)

96. The CDT (Center for Democracy and Technology), Internet Family Empowerment White Paper: How Filtering Tools Enable Responsible Parents to Protect Their Children Online, July 16, 1997. [http://www.cdt.org/speech/empower.html]. See supra note 33.

97. See supra note 33.