Intellect or Insanity, Jonathan Klinger's Blog

The US Supreme court decision in 08-769 United States v. Stevens 559 U.S. ___ (2010) (via Balkinization) may shed light on additional issues regarding free speech. Stevens, was more than any other thing, a decision which ruled that 18 USC 48, a clause that ordered that anyone who knowingly creates, sells, or possesses a depiction of animal cruelty, if done for commercial gain, may face five years imprisonment if the work does not have “serious religious, political, scientific, educational, journalistic, historical, or artistic value”. Stevens was an owner of a website that published and sold movies of dog fights, which were filmed where and when dog fights were legal (f.e japan) and sold them throughout the United States. When indicted, Stevens claimed that 18 USC 48 was not narrowly tailored and should be void.

The Supreme court accepted Stevens’ request, and explained, in part, that where animal cruelty may be defined differently in different jurisdictions, it causes the law to prohibit publishing or displaying legal activity, such as hunting, and “A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful” and “Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions“.

Moreover, the court addresses the issue of the exemption, which allows the publication for serious religious, political, scientific, educational, journalistic, historical, or artistic value, and explained that “Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation” and that “The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause“.

Calling such clause invalid by the court, more than any other thing, may shed light on Israel’s attempted Censorship Bill, drafted by Parliament Member Amnon Cohen during the 2006 term. Cohen offered that all ISPs shall be mandated to block all websites that may be inappropriate to minors, including “displaying sexual relations with violence, torture, degrading nature, humiliation or abuse”, “displaying sex with a minor or a person pretending to be a minor”, or “displaying a man, or any of his organs, as a sexual object”, all when “the content in the said sites lack, distinctly, artistic, scientific, journalistic, educational or instructional value“.

The similarity between the clauses is not coincidental, The Ministry of Communication’s attempt was to legislate the act in accordance with the Israel’s supreme court decision in re Playboy (HCJ 5432/03 Shin v. The Council for Cable and Satellite Broadcast). However, the Court’s ruling that such clause, even when exempting publications with social values, is not tailored to fit the constitutional funnel, may allow us some more hope when others try to engage in censoring the Israeli web.

“So? You’ve won” I was told today when the minister of telecommunications, Ariel Atias, notified that he will submit a “Softer” version of the Israeli Censorship act. The problem began when I explained that this is another spin after a “Soft” version was submitted a year ago, and no one thought it was soft (If you can read Hebrew, I suggest you read the interview that Doron Fishler had with me at Nana while I was driving back from Jerusalem).

It’s crucial to understand that in spite of the minister’s claims that no filtering will be made by default, the bill does determine that if you do not answer your ISP’s question whether you wish to filter content or not, you will not be able to access the internet (with one exemption, which is sort of a small victory, regarding existing customers, they will not be filtered).

The question of biometric identification remained open. The minister is still authorised to determine the means who will identify a person as an adult. As long as a person will have to identify itself against its ISP, there is a hatch to allow access to Israel’s establishment of a biometric database (which is currently in establishment) and allow the ISPs to access it by defining them as “Public”.

Moreover, the whole thing around User Generated Content (which Atias avoided) did not get the right attention.Most likely, Atias acknowledges that ISP based filtering (meaning, all of Israel’s traffic will be filtered) has some negative results and that the “Public committee” he established will have to set criterias to filter user generated content, including Israel’s most popular websites.

And maybe the worst problem was that the ISPs did not arrive to today’s discussion while the bill may incur heavy expenses on them. Maybe they know that this fight has to move on to the supreme court. The Parliament members just don’t listen. They just make it hard (and still use the “Protect The Children” dialect while they know that no one will be protected under this bill)

Maybe we were wrong when we intervened in the original bill and started a riot. Maybe the right move was to allow the bill to pass with all the biometric identification, with the central apparatus, with shaming lists, that way the supreme court would have seen it as obvious and we wouldn’t have to explain to him how bad this bill is. Now, with the new version of the bill and all the spins around it, it’s a hard job to explain the unconstitutionality of this bill, but it remains unconstitutional.