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  •   Statute 'Silences Some Speakers . . . Entitled to Constitutional Protection'

    Friday, June 27, 1997; Page A20

    Following are excerpts from the Supreme Court decision in Reno v. American Civil Liberties Union written by Justice John Paul Stevens striking down a law restricting speech on the Internet:

    At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet [an international network of connected computers]. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment. . . .

    [The Internet] enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. . . . Individuals can obtain access to the Internet from many different sources. . . . Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. . . . The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. . . .

    Sexually explicit materials on the Internet are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. . . . Almost all sexually explicit images are preceded by warnings as to the content. For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident.

    Unlike communications received by radio or television, the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. . . . Systems have been developed to help parents control the material that may be available on a home computer with Internet access. . . .

    The Telecommunications Act of 1996 . . . [has as] its primary purpose . . . to reduce regulation and encourage "the rapid deployment of new telecommunications technologies. . . ." The Act includes seven Titles, six of which are the product of extensive committee hearings. . . . By contrast, Title V – known as the "Communications Decency Act of 1996" (CDA) – contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. . . .

    The first prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. . . . The second provision prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. . . .

    [O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium. . . . The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. . . . Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. . . .

    Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. . . . [T]he CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. . . .

    It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population . . . to . . . only what is fit for children. . . ."

    The breadth of the CDA's coverage is wholly unprecedented. . . . The scope of the CDA is not limited to commercial speech or commercial entities. Its open ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value. Moreover, the "community standards" criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message. . . .

    The Government . . . contends that, even though the CDA effectively censors discourse on many of the Internet's modalities . . . it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. . . . The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. . . .

    The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community. . . . As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

    © Copyright 1997 The Washington Post Company

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