Freedom of Speech Gets a Boost in Cyberspace : Court wisely holds Internet decency act unconstitutional
The Communications Decency Act of 1995, signed into law by President Clinton earlier this year, made displaying “indecent” or “patently offensive” words or images on the Internet punishable by fines of up to $250,000 and prison sentences of up to two years if they were accessible to minors. The act gave comfort to parents who once glanced at the computer monitors of their cyber-savvy kids expecting to see a “Top Gun” video game but instead found a connection to a newsgroup called “alt.sex.stories.” On Wednesday, however, a Philadelphia-based panel of three federal judges called the Communications Decency Act constitutionally intolerable, ruling that the worldwide computer networkis protected by the 1st Amendment guarantee of free speech.
The parental concerns are legitimate, and there are ways to address them. But the federal ruling was correct, not only because the decency legislation was hurried through Congress without a public hearing--an especially irresponsible development given that this was the first major bill to govern the medium--but because its language is unrealistically broad. The law calls for stiff penalties against anyone who “makes, transmits, or otherwise makes available any comment, request, suggestion
Americans in effect would have been permitted to use the Net only for transmitting information narrowly defined as suitable for minors. And even if Net users in the United States complied, what about the 40% of Internet transmissions that emanate from abroad? In short, a law of this sort is virtually unenforceable. The decency act would dim the brightest light of the Information Age, transforming the Internet from our least regulated to our most heavily regulated communications medium.
This is not to say that the Internet should be unregulated; control, however, is best left to the private sector. Last year, in response to the legitimate concerns of parents, large online providers began offering “parental controls” on what parts of the Net could be accessed by children. Some decency act proponents argued that cyber-whiz kids might be able to override those controls, but surely these kids don’t outnumber those who filched a copy of Playboy magazine in decades past. Moreover, the private sector is now voluntarily crafting industrywide standards to refine the ability of families to block or filter information from the Net. And the Massachusetts Institute of Technology is developing a valuable screening process called platform for Internet content selection, or PICS.
Wednesday’s court ruling has not ensured freedom of speech on the Internet. Written into the decency act was a provision that if a federal panel rejected the law, the case would proceed directly to the Supreme Court.
Most legal commentators, however, expect the Supreme Court to uphold the Philadelphia ruling. Let’s hope they’re right, for as the Philadelphia judges put it, “Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the 1st Amendment protects.”
