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  • Supreme Court Report

  •   Yes, the Net Is Speech

    Friday, June 27, 1997; Page A24

    Half an hour after the Supreme Court announced its ruling that key portions of the Communications Decency Act were unconstitutional, Internet users could tap in and read the full text of the court's opinion from nearly anywhere in the world. Such is the reach of the medium that now, thanks to the court's decision, has been freed to grow and develop as buoyantly in the future as it has up till now – freed, that is, from the threatened constraints of the so-called decency law, which if upheld would have constituted the most serious and potentially hobbling limitation that a U.S. court has sought to impose on the Internet in its short lifetime.

    In voting 7 to 2 to overturn the hastily written decency provisions, which would have penalized the "knowing" transmission via the Internet of any "indecent" or "patently offensive" content to a minor, the court recognized and explicitly affirmed that the Internet is a medium of speech and, moreover, one that, unlike radio and like newspapers and magazines, is entitled to the highest level of First Amendment protection. It weighed in strongly with the view that the protection of children, though important, cannot be used as an excuse to muzzle this potential for vastly increased communication and interaction – in Justice John Paul Stevens's words, the ability to make "any person with a phone line . . . a town crier with a voice that resonates farther than it could from any soapbox."

    The opinion upholds a unanimous Philadelphia appeals panel decision and, like it, lays much emphasis on the unprecedented nature of Internet communications: the lack of central control, the "low barriers to entry" resulting in millions of senders and receivers and the absence from the Internet of characteristics that led earlier courts to conclude it was acceptable to impose restrictions on TV and radio. Access to the Internet is neither "scarce," as broadcasting frequencies once were, nor "invasive," like a blaring radio, and less drastic means exist for filtering its raw elements. Sources of the Internet's strength, these qualities also make it impossible to apply the decency act's vague and imprecise standards without blocking adult access to vast amounts of speech that otherwise would be constitutionally protected. Such speech, Justice Stevens wrote, could include "a large amount of nonpornographic material with serious educational or other value . . . artistic images . . . and arguably the card catalogue of the Carnegie Library." (A sole provision banning the transmission of obscenity, illegal anyway, was upheld.)

    The Supreme Court sharply criticized the vagueness of the provisions as drawn, the failure to seek less restrictive means of protecting children and the failure of Congress to hold any hearings on the measure before passing it. Even the dissent, by Justice O'Connor, concurred with the majority that most applications of the law would be unconstitutional. It's unlikely that the Net, in its complexity, will remain totally free of regulation of any kind. After this debacle, though, perhaps future rounds will take at least some account of constitutional realities.

    © Copyright 1997 The Washington Post Company

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