Supreme Court to Review Ban on Internet Indecency

In its first attempt to set free-speech rules for the computer network known as the Internet, the Supreme Court announced Friday that it will decide whether lawmakers can make it a crime to send or display “indecent” words or photos that can be picked up by minors.

The court will consider reviving the Communications Decency Act, which passed Congress in March but was ruled unconstitutional almost immediately on 1st Amendment grounds.

Federal lawmakers said that they were not troubled by what adults said or saw over the Internet. They were, however, anxious to protect children from being exposed “to the worst, most vile and most perverse pornography,” said Sen. J. James Exon (D-Neb.), the bill’s sponsor. For today’s computer-savvy kids, the sexually explicit displays are “only a few click-click-clicks away,” he said.

But even if all the “indecent” material in the United States could be instantly expunged from the Internet, children who use the system could still tap into pornography that is put on computers in Europe, Asia and South America, said Bruce Ennis, a 1st Amendment expert.

The law would make it illegal to transmit child pornography or sexually explicit material that is deemed “obscene.” No one has disputed those provisions.

However, the measure also targeted a broader array of “patently offensive” descriptions or photos that involve sex, a category that the high court has dubbed “indecent” speech. Violators would face a two-year prison term and a $250,000 fine under the legislation passed by Congress.

In the past, the justices have said that indecent speech between adults, whether on television or over the phone, is entirely protected. However, the court has said that the government may restrict this kind of material to protect children. For example, TV or radio programs that are indecent can be limited by law to late-night hours when children supposedly are asleep.

But how can children be shielded if they use the Internet, a free-wheeling global network that is expected to have 200 million users by the end of this decade?

The computer network gives users the power to tap into information sources or even conversations. In its broad wording, the law would seem to put the liability on the information bank, even when its owners do not know children are tapping into it.

Suppose a group of AIDS activists discuss via the computer how the disease is transmitted and what steps can be taken to prevent it. If a child taps into those transmissions, he could be exposed to a “patently offensive” discussion involving sex. Can the AIDS group be prosecuted?

Lawyers for the American Library Assn. said that their members also could inadvertently violate the law. Their collections can be tapped via computer. What if a child finds a magazine, even the National Geographic, that has explicit photos of naked people? Or suppose a child taps into an article containing photos of gay men taken by the late Robert Mapplethorpe. Could the library be prosecuted?

Even the Supreme Court itself could be a violator, at least theoretically. In its best-known case involving indecency, the justices upheld federal regulators who fined the broadcasters who carried George Carlin’s comedy monologue about the “seven dirty words.”

Lawyers challenging the law raised the possibility that anyone who transmitted this opinion, including the court itself, could be prosecuted if a child had access to it.

Relying on these examples, a three-judge panel in Philadelphia declared the new law unconstitutional. It is too broad in its reach, vague in its meaning and impossible to enforce fairly, they said.

Clinton administration lawyers appealed and the justices agreed to hear arguments in March in the case (Reno vs. the American Civil Liberties Union, 96-511).

As a practical matter, the case will decide whether parents or prosecutors are responsible for policing the Internet.

In his brief to the court, U.S. Solicitor General Walter Dellinger argued that it is reasonable to force those who display or transmit sexually explicit material over the Internet to try to keep it away from children. They can do so either by not displaying such material or by adopting methods to screen out children, he said.

Some Web sites could require those seeking access to have a credit card number or other identifying code that would assure they are over 18.

“In the short run, [those] who want to disseminate patently offensive material may have to incur some additional costs or burdens,” Dellinger said. It is better to place that burden on those “who disseminate or display patently offensive material than it is to leave children wholly unprotected,” he concluded.

But the lawyers challenging the measure said that those techniques will not work. Parents need to screen what the children see or they should buy software that will do the job, they said.

“The real danger of this act is that it lulls parents into a false sense of security,” said Ennis, who is representing the American Library Assn.

“This is a global means of communications and parents need to understand that,” he said. “The good news is there is a wide range of software on the market now that can block or filter this material.”

The justices will rule on the case by July.

Meanwhile, the court also agreed to rule on whether a man who was wrongly convicted and sent to death row can sue a sheriff for allegedly framing him.

Walter McMillian of Monroeville, Ala., was cleared of murder charges in 1993 after six years on death row. He then sued those he said had concocted the evidence against him.

A federal judge and a U.S. court of appeals threw out his lawsuit seeking damages, but the high court granted review of his appeal (McMillian vs. Monroe County, 96542).