IMPACT OF TELECOM REFORM : ‘Indecent’ Proposals : Judge Blocks Government’s Enforcement of Internet Ban

Civil libertarians scored a partial victory Thursday in their fight against a key provision of the new telecommunications law when a Philadelphia judge temporarily barred the government from enforcing a ban on sending “indecent” material over computer networks.

Ruling on a lawsuit that the American Civil Liberties Union and 19 other groups filed just moments after President Clinton signed the Telecommunications Reform Act last week, U.S. District Judge Ronald L. Buckwalter said the term “indecent” is vague enough to raise questions about the law’s constitutionality.

But Buckwalter said the law’s ban on materials considered “obscene,” as well as a provision making it illegal to display “patently offensive” material in a manner in which it could be seen by children, do not raise obvious constitutional problems and therefore are not covered by his temporary restraining order.

“The bottom line is people who speak on the Internet are still at risk because the ‘patently offensive’ provision is still in effect,” said Chris Hansen, senior staff attorney for the ACLU.

The ACLU and other plaintiffs argued that the part of the telecommunications law known as the Communications Decency Act would violate privacy rights and severely inhibit the freedom of communications of consenting adults. Further, they said, the law could even authorize the government to prosecute people for posting material about any subject that touches on sex, including AIDS, abortion, politics and science.

The Justice Department argued that the CDA, which carries fines of up to $250,000 and prison terms of up to five years, would protect children from pornography and other unsuitable material. They denied that the ban would affect information about subjects such as abortion and AIDS.

Pending the court’s decision, the Justice Department has voluntarily refrained from prosecuting anyone during the week the law has been in effect. Even so, some Internet users said there is already evidence of confusion about what is and is not legal.

Under a special expedited proceeding, a panel of three judges, including Buckwalter, will hear the next phase of the case--a request for a preliminary injunction--sometime in the next few weeks. Many observers see the case as a landmark in defining 1st Amendment rights in cyberspace and expect the issue ultimately to be decided by the Supreme Court.

In granting the temporary restraining order, Buckwalter said that “. . . the undefined word ‘indecent,’ standing alone, would leave reasonable people perplexed in evaluating what is or is not prohibited by the statute.” He ruled that the word is therefore too broad and vague and could have an unnecessarily chilling effect on free speech.

But to the chagrin of the ACLU and other plaintiffs, he did not apply the same reasoning to the term “patently offensive.” Much legal wrangling is now expected over what should be deemed “patently offensive by contemporary community standards” when it comes to the Internet.

Still, Mark Rotenberg of the Electronic Privacy Information Center said the ruling is significant because it addresses the provision in the bill that posed the greatest threat to 1st Amendment rights.

Although the Federal Communications Commission has regulated indecent speech in broadcast media, critics of the new law have argued that the Internet is a less centralized, more democratic medium and should not be subject to such regulation.

“The indecency concept is an approach to regulating speech in a broadcast environment, and we’re trying to draw a line here,” Rotenberg said. “This is a completely different communications world, there is no use of scarce spectrum, and there is a profound interest in preserving traditional civil liberties.”

Supporters of the new law were dismayed by the ruling. “We wish the court would take the side of children,” said Bruce Taylor, president and chief counsel of the National Law Center for Children & Families. “To the extent that the ACLU is defending the right of adults to send soft-core pornography to children I think they’re going to lose, and I hope the court will say so.”

Despite the Justice Department’s decision to hold back temporarily on enforcement, the law’s effects are already being felt in cyberspace. Penthouse magazine has substituted pictures on its World Wide Web with a box that says the picture has been deleted “in accordance with U.S. censorship laws.”

A Los Angeles Internet user said he was reprimanded for putting his employer at risk of prosecution after forwarding a widely posted e-mail message that used profanity to criticize the CDA to several of his colleagues.

Universities are pondering whether they can be held accountable for providing students access to the Internet’s vast number of discussion groups that contain sexual content. Telepath Systems Inc., an Oklahoma Internet access provider, stopped providing all newsgroups in the “alt.” category--commonly used for sexual discussions and pictures--to its customers.

Representatives of the ACLU and the Electronic Frontier Foundation said the Justice Department had weakened its case by submitting in support of its case a study of online pornography by a Carnegie Mellon graduate student that had been widely debunked last year.

Said EPIC Legal Counsel David Sobel, one of the attorneys representing the coalition: “The court’s decision is a partial victory for free speech, but expression on the Internet remains at risk. This is destined to become a landmark case that will determine the future of the Internet.”

* INCOMPATIBLE GEAR

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