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Rebuke to the Cybercensors,
The Washington
Post, June 16, 1996.
A PHILADELPHIA court ruled
last week that provisions of the so-called Communications Decency Act are
unconstitutional, saying in an emphatically worded decision that the
effort to criminalize Internet transmission of "indecent" material to
minors was badly drawn and overly broad and that it placed sweeping
restrictions on adults' constitutional rights to view material
acknowledged to be protected by the First Amendment. It's a well-deserved
rebuke to a sloppily drawn law that the administration should never have
gotten so enthusiastic about in the first place, though it was more or
less obliged to defend the provisions in court after the president signed
the telecommunications law of which it was a part. The decision was a
relief to a wide range of libraries and educational and civil liberties
organizations, which, along with computer companies and commercial
Internet providers, had signed on to the lawsuit out of concern that they
might end up facing criminal prosecution for distributing materials that
some locality, somewhere, might deem indecent. The decision, like the
challenged law, has no effect on the status of materials that are already
considered obscenity or child pornography -- these were illegal on the
Internet, as elsewhere, all along, and they continue to be. But if the
"indecency" provisions had stood, as the court understood and properly
stressed, they could have been applied to criminalize discussions and
artwork that might have been considered indecent in one locality -- for
instance, nude sculptures in a museum collection or the discussions among
members of one plaintiff group,
Stop Prison Rape. The undefined nature of the categories
deemed criminally actionable under the "decency" provisions was a key
element in the court's decision, as was the still-changing and
incompletely understood nature of the chaotic new medium itself.
The administration may yet appeal the decision to the Supreme Court, but
the Philadelphia panel, at least, appears not to have found the issue a
particularly close call. The decision offers 84 paragraphs of Internet
history and description, stipulated as accurate by both sides, that might
profitably be read by those who insist on comparing the electronic medium
to television or telephones. It makes clear that Internet communication,
though new, clearly does not share the special characteristics that have
been used to justify greater scrutiny of broadcast and radio, such as
being "uniquely pervasive" and "uniquely accessible to children."
"Although content on the Internet is just a few clicks of a mouse away
from the user," Chief Judge Dolores Sloviter wrote, "the receipt of
information on the Internet requires a series of affirmative steps more
deliberate and directed than merely turning a dial." Rather, she wrote,
the public interest weighs clearly in favor of "a free flow of
constitutionally protected speech."
While the government argued that technology would likely arise to make it
possible for Internet users and content providers to protect themselves
from the law, whether by credit card proof of being over 18 or a
hypothetical "tagging" system, judges pointed out that such technology
does not yet exist and, ironically, would probably be best at protecting
commercial pornography sites while leaving unprotected or silencing a wide
range of nonprofit, health or literary discussions.
The president said Wednesday that, whether or not the administration
decides to appeal the ruling to the Supreme Court, he would "continue to
do everything I can in my administration to give families every available
tool to protect their children" from "objectionable materials transmitted
through computer networks." As the court makes clear, he can do that a lot
better by leaving this decision alone.
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