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AIDS Treatment News
Exon Amendment: Threat to AIDS Prevention and Activism?
Bruce Mirken
July 21, 1995
AIDS Treatment News Issue #227, July 21, 1995

The controversial "Communications Decency Act of 1995," frequently referred to as the "Exon amendment," after its author, Sen. James Exon of Nebraska, may interfere with both AIDS prevention efforts and the work of AIDS activists if it becomes law. The measure, an amendment to the Telecommunications Competition and Deregulation Act of 1995, passed the Senate overwhelmingly and may be considered shortly by the House of Representatives.

The measure has gotten little attention from AIDS lobbyists, who have been busy fighting Republican sponsored attacks on a variety of AIDS programs, but contains a number of provisions which may prove problematic to people working on AIDS issues. And contrary to some press accounts, it affects not just the Internet but communications using any "telecommunications device," including phones and fax machines.

Among other things, the amendment makes it a crime to "make or make available any obscene communication in any form" as well as "any indecent communication in any form... to a person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication."[emphasis added] The measure also criminalizes the owners or operators of any "telecommunications facility" used for such purposes. In addition, the proposal contains broad language banning communications intended to "harass," including criminal penalties for anyone who "makes repeated telephone calls or repeatedly initiates communication with a telecommunications device" for such purposes.

A number of aspects of the bill are problematic for those doing AIDS work, starting with the fact that courts continually struggle to define what is "obscene." Further, efforts by the Federal Communications Commission to enforce bans on "indecent" material--essentially material considered objectionable but falling short of being "obscene"--have been so inconsistent that they once inspired an entire comedy routine: George Carlin's famous "seven words you can never say on television." It is hard to gauge how much AIDS-related material available online might be considered indecent, and many AIDS groups are only beginning to use this means of communication. But there are already many AIDS bulletin boards and Internet news groups, and several online services have HIV/AIDS discussion and information boards as well. A quick and far from complete scan by AIDS TREATMENT NEWS came upon a number of sites containing frank, graphic discussions of the HIV risks involved in various sexual acts, for example. Is such material "obscene" or "indecent?" We don't know, and most likely it will be up to the courts to decide.

That prospect makes AIDS educators nervous. At the San Francisco AIDS Foundation, which is in the process of creating a World Wide Web page expected to go online this fall, spokesman Derek Gordon worries, "Almost everything we do might involve frank discussions of sex and sexuality, even 'AIDS 101.' We need to be able to say, 'If you're going to get fucked, get fucked with a condom.' We can't have Congress saying, 'We don't like the F word and we really don't like the C word.'" And although online communication may not yet be a major vehicle for AIDS prevention information, Pat Franks of the University of California at San Francisco Institute for Health Policy Studies expects it to grow more important--and worries about the effects of restricting online information. "As we all use the computer more and more to share information, I think the potential for restricting access is there," she observes.

Jeff McElroy, who coordinates the HIV/AIDS forums on America Online, says the huge online service is "concerned about the ramifications of the amendment." He notes that although AOL already restricts sexually explicit messages, "we are less stringent" when the subject is HIV/AIDS because "such communications save lives." Even in the best of circumstances it would likely take some time to work out what is legal under the new rules. Although at least some material with a legitimate educational purpose might well eventually be deemed acceptable, many worry that in the meantime online services--who would be held criminally liable for "obscene" or "indecent" material transmitted via their networks--would see no option but to bar many types of material entirely.

Equally problematic for AIDS activists are the provisions dealing with "harassing" communications. Treatment activists have repeatedly used phone and fax "zaps" of government officials or drug company executives to press for improved research or for access to new treatments, bombarding the officials with messages urging, for example, an expanded access program for a promising new drug. The tactic has been successful on many occasions, and AIDS TREATMENT NEWS has at times carried notices of such actions.

Again, Exon's language is broad enough and imprecise enough that it is difficult to know exactly what would become illegal. Does repeatedly calling or faxing a drug company executive with the same message about a potentially life- saving drug constitute "intent to harass"? Arguably it could, but no one can say definitively. Former Northern California American Civil Liberties Union board member Barbara Brenner thinks it is no accident that such activist work might fall under the scope of Exon's proposal. "The ability to do political organizing online is enormous, and I think they're afraid of that," she argues.

She adds that not only AIDS work may be affected by the "indecency" provisions, pointing to material she has read online dealing with breast cancer. "People post a lot of things," she explains. "I've been reading a lot of stuff about vaginal dryness as a consequence of chemotherapy." While common sense might indicate that such discussions of health concerns shouldn't be tagged as "indecent," the history of both AIDS education and women's health issues in this country suggests that common sense does not always prevail.

The measure now moves to the House of Representatives. As of the AIDS TREATMENT NEWS deadline, Russ Rader of Senator Exon's office was unsure of exactly when a House version of the "Communications Decency Act" would be considered, but thought it could happen as soon as late July. But Perry Plumart, press secretary to California Congresswoman Nancy Pelosi (who opposes the measure), thinks the contentious debate over various appropriations bills might delay consideration of the Telecommunications Act until after the August Congressional recess.

Such a delay might be advantageous, as it would allow AIDS lobbyists to regroup after the funding battles and, perhaps, put some effort into mobilizing opposition to the proposal.