Court Bars Law Blocking Indecent Internet Material
Declaring emphatically that the Internet computer network must be given the highest possible level of 1st Amendment protection, a special federal court panel on Wednesday barred the government from enforcing a new law that prohibits public distribution of indecent material over the global computer network.
The ruling was a decisive victory for the civil liberties groups and computer companies challenging the statute--known as the Communications Decency Act--and a defeat for the conservative religious groups and others who viewed the law as a means of protecting children from online pornography.
“The Internet may fairly be regarded as a never-ending worldwide conversation,” U.S. District Judge Stewart Dalzell, a member of the panel in Philadelphia, said in his opinion. “The government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.”
The case is the first to tackle directly the contentious question of how free-speech protections created in the 18th century will apply to the electronic communications media of the future, and Wednesday’s decision is likely to be appealed to the Supreme Court. Enforcement of the CDA has been held off pending the panel’s decision, and thus the main immediate effect of the ruling on the online world is to remove the imminent threat of sweeping new regulations.
Enacted in February as part of a broad overhaul of the nation’s telecommunications laws, the CDA seeks to restrict online indecency by imposing regulations similar to those that govern television and radio. But a diverse coalition including the American Civil Liberties Union, the American Library Assn., the Newspaper Assn. of America, Microsoft Corp., America Online and many others argued in a lawsuit that such a regime would all but destroy a burgeoning new medium by limiting its content to what’s suitable for a child.
The three-judge panel, hearing the case as part of a special legal review procedure written into the law, unanimously agreed that the measure unconstitutionally limited adult speech. Recognizing what they called the unique and highly democratic nature of the Internet, the judges said online communications should be accorded at least as much free-speech protection as newspapers or books.
The CDA would impose fines of up to $250,000 and two years in jail on violators who fail to make a good-faith effort to prevent minors from accessing “patently offensive” or “indecent” material that they distribute on the Internet. Transmission of obscene material is covered under existing laws and was not at issue in the case.
Earlier this year, one of the three panelists, U.S. District Judge Ronald Buckwalter, issued a temporary restraining order prohibiting the government from enforcing part of the measure, and the Justice Department voluntarily refrained from enforcing the rest.
The 57-member coalition that challenged the statute said Wednesday’s decision would stand as an important precedent for applying the Bill of Rights to electronic communication at a time when it is fast becoming relevant to a broader segment of the population.
“Only once or twice a century are people called upon to decide what the legal rules of free speech will be in a new medium,” said Chris Hansen, the lead attorney for the ACLU on the case. “This decision is so thoughtful and so comprehensive that I think later on any judge looking at these issues will have to consult this opinion for guidance.”
Industry officials said the ruling lifted a cloud hanging over the development of online networks and pledged to push aggressively the development of software tools that will enable parents to control what their children see and do on the Internet.
“This is a great victory for anyone who cares about freedom of expression or the future of the Internet,” Microsoft Corp. Chairman Bill Gates said in a statement.
Civil libertarians, who had warned of an ominous chilling effect on the fledgling medium should the law be upheld, predicted a flourishing of online communication. And on the Internet, where cynicism toward government reigns supreme and “netizens” tend toward persecution complexes, the mood Wednesday was all cybersunshine.
“We won!” screamed dozens of messages on newsgroups and mailing lists, such as alt.censorhip, where the law had often been compared to electronic book-burning. Announcements of celebratory rallies in New York, Pittsburgh and San Francisco were telegraphed through the ether.
“We are really happy today,” said Maria Wilhelm, president of The WELL, a Sausalito-based online service. “It’s kind of like an online hoedown here.”
Supporters of the statute, which include the Christian Coalition and the National Law Center for Children and Families, said the decision left children vulnerable to pornography and other inappropriate material that could now penetrate their homes via computers.
“The court has taken the ACLU line that anything goes on the Internet, even though it overlooks well-established laws protecting children from pornography in other areas,” Sen. J. James Exon (D-Neb.), one of the prime movers behind the CDA, said in a statement. “Hopefully, reason and common sense will prevail in the Supreme Court.”
President Clinton said in a statement: “I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this act to prevent children from being exposed to objectionable material transmitted through computer networks.”
The Department of Justice said Wednesday it is still considering whether to appeal, though such a move is widely expected. Under an expedited review procedure established by Congress, the case would go directly to the U.S. Supreme Court for review.
A Justice Department spokesman said that several factors would influence the agency’s decision, including another challenge to the CDA pending in the southern district of New York and how quickly software that enables electronic publishers to “tag” their communications becomes widely available.
In a 219-page decision that includes a long section on “The Nature of Cyberspace,” the three judges painstakingly describe how the Internet’s underlying technology, which allows individuals to reach an audience of millions at almost no cost, sets it apart from all previous media.
During several days of hearings earlier this year in Philadelphia, the government argued that the new law was necessary to protect children from sexually explicit and violent material that did not fall under the legal definition of obscenity--just as today’s laws restrict what can be shown on broadcast television and who can use dial-a-porn services.
But the judges, who during the hearing were given a tour of the World Wide Web in Philadelphia’s historic ceremonial courtroom and took great pains to educate themselves about the technology, found that the Internet was fundamentally different from anything that had come before it.
The decision notes that the Internet is a global medium, so that even if the CDA was upheld, there would be no way to stop indecent material from flowing over fiber from abroad. And unlike broadcast media, it does not require the rationing of scarce bandwidth.
It also observes that information on the network must be actively sought out. The judges argued that children are far less likely to trip over indecent material on the Internet than they are on TV or even on the front page of a newspaper. They also dismissed the government’s contention that Internet publishers could readily and economically devise a way to check the age of those who visit their sites.
The judges largely supported the plaintiffs’ position that parental blocking software and voluntary ratings systems would be sufficient to protect children from unsuitable material.
Parts of the three separate opinions of the three judges repudiated the government’s vagueness in specifying what material was covered by the terms “patently offensive” and “indecent” and who could reasonably expect to be prosecuted under the statute.
* Q&A; ON RULING: Key issues explained. D1
