Indecency on Internet Faces High Court Test

In the past 20 years, the Supreme Court has quietly changed the face of many American cities.

Red-light districts of X-rated theaters, massage parlors and topless night clubs, which had flourished under the 1st Amendment’s guarantee of free speech, suddenly withered when the Supreme Court ruled in 1976 that cities could use their zoning power to keep out sex-oriented businesses. The impact can be seen from the revival of New York City’s Times Square to hundreds of cleaned-up downtowns across the country.

These days, however, red-light districts are coming back--on the Internet. Their fate comes before the Supreme Court this week as the justices consider the constitutionality of the Communications Decency Act, which went on the books last year. First Amendment activists have called the matter “the first free-speech case of the 21st century.”

A worldwide electronic hookup, the Internet is a unique medium that allows for an instant exchange of ideas and information. Its users, now estimated at 51 million in the United States and Canada alone, say it should be free of government censorship.

“The future of the Internet is at stake in this case,” said Jerry Berman, director of the Center for Democracy and Technology and a leader of a free-speech coalition of computers users, librarians and university professors. “It must be free, open and accessible to all.”

But anti-pornography activists protest that the Internet is becoming an open sewer. With only a few clicks or keystrokes, they say, the World Wide Web can become the Wide World of Sex, with brightly lit photos of nude models beckoning the screen scroller to come in for a look.

Commercial computer services usually demand that users pay by credit card, which generally excludes young people. But some user groups offer free access to an array of graphic pornography involving sex with animals, children and scenes of torture. And no one stands at the door to keep out kids.

“Any child with a computer can access vile pornography in a matter of seconds. And once they have seen it, it can never be erased from their minds,” said Donna Rice Hughes, a leader of a Fairfax, Va.-based anti-pornography group known as Enough Is Enough.

A decade ago, Rice herself was imprinted on the national consciousness when her affair with then-Sen. Gary Hart of Colorado derailed his presidential campaign. Now married with two stepchildren, she has become a national spokeswoman for a women’s group that helped persuade Congress to pass the Communications Decency Act, which President Clinton signed into law last year as part of the bill deregulating the telecommunications industry.

The law makes it a federal crime, punishable by up to two years in prison, for anyone to “use an interactive computer device to send [or] display . . . to a person under years of age 18” any image or communication that “in context depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

The law deems these communications as “indecent.” It also punishes even more extreme pornography that would be considered “obscene.”

The measure shields Internet transmitters who take “reasonable, effective and appropriate actions” to restrict access by minors, such as requiring a credit card or “adult access code.”

Anti-pornography activists say the new law simply brings the computer world into line with the laws governing other American vices, such as smoking, drinking alcohol or gambling. Generally, these activities are regulated so that they are available to adults but not to minors.

Cyberporn cuts the other way. Everyone agrees that the young are more adept at “surfing” the Internet than most adults; even if their parents are not aware of how much pornography is on the Internet, the kids are.

In defense of the law, Clinton administration lawyers say the Internet’s vast potential as an education and information tool “will be wasted” if pornography flourishes. Parents will banish the service, the administration’s brief to the high court argues, “because they do not want their children harmed by exposure to patently offensive sexually explicit material.”

“Congress could direct purveyors of indecent material away from areas of cyberspace that are easily accessible to children . . . just as cities could direct adult theaters away from residential neighborhoods,” the administration maintains.

But these arguments have been flatly rejected in the lower courts, and most legal experts think they will fail in the Supreme Court as well.

First of all, the computer users have challenged only the ban on “indecent” communications, not on “obscene” ones. The high court has made it clear that obscenity is not protected by the 1st Amendment.

As an aside, it is also not clear that the Justice Department will aggressively use the criminal law against obscene transmissions over the Internet.

While prosecutors have gone after those who traffic in child pornography, department officials say no one has been prosecuted yet for obscenity under the 1996 law.

“It is a matter of resources. It’s a small unit at Justice, and most U.S. attorneys don’t want to do these [obscenity] cases,” said Robert Flores, who until last month was deputy chief of the Justice Department’s division on child exploitation and obscenity.

Why, then, is it important to have a new criminal law that also bans “indecent” transmissions over the Internet? Because it sends a message to Internet carriers that they need to screen their own material, Flores said.

“Most of them don’t want to become purveyors of porn, and this [law] would encourage them to take independent steps to clean it up,” Flores said. “You don’t have to be a rocket scientist to look at a user group like ‘alt.sex.pedophilia’ to figure out what you are dealing with.”

But the free-speech coalition says the government has no business sending such messages through criminal laws. It also says the law as written unconstitutionally threatens to punish rather tame transmissions, such as paintings of nude models or foul language used in a novel.

“The act by its term applies to the speech of libraries and educational institutions, speakers hardly likely to be found selling pornography,” said Washington attorney Bruce Ennis in a brief for the free-speech coalition. Because these groups could not be sure a minor was not receiving the transmission, he argued, the law acts “as a complete ban” on a whole range of speech that is protected.

In the end, the computer-user groups say it is up to parents, not them, to police the Internet. Parents who are worried about their children tapping into pornography should buy software to filter it out, they say. For example, Microsoft Systems sells a program called Cyber Patrol that blocks access to transmissions that feature pornography or profanity.

“The real tragedy of this act is that it could lull parents into a false sense of security,” Ennis said. Even if U.S. law made it illegal to transmit pornography over the Internet, that would not stop a company based in Amsterdam or Asia from sending out such material, he says.

The law has yet to go into effect. A federal judge in Philadelphia blocked it last February, and a three-judge panel struck it down in June as unconstitutional.

The justices will hear arguments Wednesday in the case of Reno vs. ACLU, 96-511, and hand down a decision by July.

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About This Series

The Supreme Court on Wednesday will hear arguments in a landmark lawsuit over the Communications Decency Act, a law passed last year that would sharply limit “indecent” communication over the Internet computer network. A four-part series beginning today will examine some of the issues.

* Today: When Congress passed the CDA in February 1996, it was immediately challenged as an unconstitutional restriction on free speech. The federal courts so far have agreed, barring enforcement of the law. Civil libertarians say nothing less than the future of the Internet is at stake, while CDA supporters say they’re only trying to protect children.

* Monday: The CDA is mainly aimed at online pornography, which supporters of the law say is ubiquitous on the Internet and far too accessible to children. What is the true scope and scale of the Internet sex business? Who are the people involved?

* Tuesday: Critics of the CDA say parents worried about what their children are seeing online can use filtering software that blocks access to certain Internet sites. And many in the business support a movie-type rating system for the World Wide Web. But filters and ratings are now creating controversies of their own.

* Wednesday: The effort to regulate the Internet underscores one of the most fascinating and difficult aspects of the new medium: It threatens to render traditional notions of legal jurisdiction meaningless. How can a state, or even a country, control a global information network? And if it can’t, is the nation-state itself obsolete?