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
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
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.