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  • Special Report: Communications Decency Act

  •   Supreme Court Rejects Curbs on Online Speech

    From the Court's Decisions
    Justice John Paul Stevens on Internet decency controls:

    "The Communications Decency Act 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."

    By John Schwartz and Joan Biskupic
    Post Staff Writers
    Friday, June 27, 1997; Page A01

    The First Amendment went digital yesterday.

    In a 7-2 decision, the Supreme Court struck down the Communications Decency Act, a law that made it a crime to make "indecent" or "patently offensive" material available to minors over the fast-growing Internet and other computer networks. The court ruled that constitutional free speech protections apply just as much to online systems as they do to books and newspapers.

    Finding that the law was overly vague and would infringe on the speech rights of adults in the name of protecting children, Justice John Paul Stevens wrote that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." The law, he wrote, "threatens to torch a large segment of the Internet community."

    Civil libertarians and businesses hoping to profit from the Internet were elated by the strongly worded decision. Jerry Berman of the Center for Democracy and Technology, a high-tech policy group that helped assemble the coalition of business and civil liberties groups opposing the law, called the decision "the Bill of Rights for the 21st Century."

    Sen. Patrick J. Leahy (D-Vt.), who opposed the bill, said: "I hope that nobody thinks that this is a victory for child pornographers. . . . This is a victory for the First Amendment."

    But a key sponsor of the original bill, Sen. Dan Coats (R-Ind.), said the Supreme Court was "out of touch with the American people on this."

    "I'm very disappointed," he said.

    Donald P. Hodel, head of the Christian Coalition, said the "frustrating" decision marks "a sad day for our nation" and "leaves our nation's children, basically, exposed to the worst kinds of pornographic material."

    President Clinton's Justice Department had argued in favor of the law. But yesterday Clinton issued a statement that expressed no regret over the decision and called the Internet "an incredibly powerful medium for freedom of speech and freedom of expression that should be protected."

    He said children must be protected from the adult material that can be found online, and he pledged to convene a meeting of industry leaders, teachers, parents and librarians to find "a solution for the Internet . . . that protects children in ways that are consistent with America's free speech values."

    The decision does not affect prohibitions against material found to be "obscene," which is illegal in any form.

    Former senator Jim Exon (D-Neb.) first proposed the bill in 1995 to crack down on the online equivalent of open-air porn bazaars online: sites from which anyone could download sexually explicit images and even video clips. The bill's introduction spurred many of those sites to place their raunchiest wares behind electronic doors accessible only with a credit card, and it led to a number of software products that allow parents to filter what their children might find online, though with varying degrees of effectiveness. The Internet decency law ultimately passed as part of a broad revision of U.S. telecommunications laws in February 1996.

    But the court said that in trying to shield children, the law went too far to restrict the rights of adults. "It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials," Stevens wrote. "But that interest does not justify an unnecessarily broad suppression of speech addressed to adults."

    "[G]overnmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it," Stevens wrote. "The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

    As a lower court did when it originally held the law unconstitutional, the Supreme Court yesterday found that the technologies of the Internet make it a modern model of the marketplace of ideas underlying the Founding Fathers' justification for the First Amendment. "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox," Stevens wrote. Through the technologies of online publishing, "the same individual can become a pamphleteer."

    Stevens wrote that the very diversity of those technologies made enforcement of the law impossible. There is no effective way, for example, to determine the age of a user who is tapping into many kinds of Internet systems.

    Unlike such broadcast media as radio and television, where a scarcity of room on the electronic spectrum for new entrants justified the need for government regulation, the Internet poses few barriers to entry. And, unlike broadcasting, the court said, the Internet "is not as `invasive' as radio or television."

    "Users seldom encounter content `by accident,' " it said.

    The court also wrote that such terms as "indecent" and "patently offensive" are too vague: "Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality . . . or the consequences of prison rape would not violate the CDA?"

    In defending the law, the Justice Department had relied on the touchstone case on indecency, FCC v. Pacifica Foundation. But the court noted that Pacifica required narrowly tailored solutions for media regulation.

    Further rebuking the government's attempt to rely on cases upholding zoning ordinances that keep adult movie theaters out of residential neighborhoods, the court said the law applies broadly to the entire electronic universe.

    The justices unanimously struck down the "display provision" of the decency law, which made it illegal to place "patently offensive" material online in a way that minors could find it. But Justice Sandra Day O'Connor and Chief Justice William Rehnquist dissented on the other major provision, which criminalized knowingly sending indecent materials directly to a minor.

    Supporters of the law said they would find a way to come back at the Internet porn issue. Bruce Taylor of the National Law Center for Children and Families helped draft the CDA, and he said yesterday that "protecting children is not going to go away – either from Congress or this administration."

    Coats and Taylor said it should be a simple matter to restrict Internet access to children – an idea expressly rejected by the court.

    Lawyer Bruce J. Ennis, who argued the case against the law before the court, said yesterday that "those arguments are foreclosed now."

    Groups such as Enough Is Enough, a Fairfax-based anti-pornography organization, will continue their fight through less restrictive federal laws and state legislation, according to Mariam Bell, the group's vice president.

    It is unclear how effective such efforts will be. Federal judges in New York and Georgia, for example, last week banned the enforcement of laws in those states that regulate online content.

    The suit was originally filed by two coalitions of plaintiffs, one led by the American Civil Liberties Union and another made up of the American Library Association and business and policy groups.

    Staff writer Elizabeth Corcoran contributed to this report.

    © Copyright 1997 The Washington Post Company

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