US kicks out online decency act

In a move being hailed as a pivotal victory for free speech and a boon to the evolution of the Internet, the Supreme Court today ruled that the Communications Decency Act violates the First Amendment , affirming two lower court rulings barring its enforcement.The Court voted unanimously to strike down the decision, with Chief Justice William Rehnquist and Justice Sandra Day O'Connor concurring but writing dissenting opinions.

In a move being hailed as a pivotal victory for free speech and a boon to the evolution of the Internet, the Supreme Court today ruled that the Communications Decency Act violates the First Amendment , affirming two lower court rulings barring its enforcement.

The Court voted unanimously to strike down the decision, with Chief Justice William Rehnquist and Justice Sandra Day O'Connor concurring but writing dissenting opinions. Ultimately, the fate of the CDA hinged as much upon its breadth and the perceived difficulties in enforcing the law as it did upon First Amendment questions.

Supreme Court justices were largely critical of the legislation during final arguments on an appeal of its June 1996 repudiation by a lower court in March, especially when the government's representative, Deputy Attorney General Seth Waxman, hinted that its scope could be narrowed for it to pass Constitutional muster.

"It seems to me that, under your analysis, it could potentially be criminal to engage in indecent speech on a public street corner in the presence of minors," Justice William Kennedy said to Waxman during the March 19 summation in a comment that was typical of the criticisms offered by other justices that day.

Waxman maintained in his final argument before the high court March 19 that the bulk of the CDA's provisions could be upheld while safeguarding adults' rights in cyberspace by mandating that Web site operators offering pornographic materials gather credit-card data to verify users' ages.

But Bruce Ennis, the lead attorney representing an anti-CDA coalition including the American Civil Liberties Union, the Citizens Internet Empowerment Coalition, and the Center for Democracy and Technology, argued that screening the ages of newsgroup and chat room participants would be all but impossible. Applying the law to newsgroups would result in an unconstitutional chilling of protected speech by adults, Ennis said.

The anti-CDA coalition's attorney also argued that the Internet's global nature would inhibit enforcement of the law, pointing out that the U.S. government could not expect to dictate policy to other governments in regard to such a fundamentally open medium.

But some justices seemed to take exception to that point, including Justice Antonin Scalia, who suggested the U.S. could propose curbs on Internet content aimed at minors in an attempt to set an example for the rest of the world.

Ennis maintained, however, that widespread adoption of content-filtering software programs would allow parents to control their children's Internet activities, providing a less-restrictive solution to the online pornography dilemma.

Fears over easy access by children to an eye-popping array of pornographic, violent, racist and sexist content on the Internet led to the Justice Department's initial attempt to restrict the type of content made available online to minors. The CDA, signed into law in February 1996 as part of President Clinton's Telecommunications Act reforms, would have made it a crime to transmit over the Internet "indecent" or "patently offensive" materials to minors. Violators would have faced up to two years in jail and up to $250,000 in fines.

The ACLU coalition challenged the CDA on the same day it was signed into law, maintaining it violated the First Amendment and erroneously compared the Internet to a broadcast medium rather than likening it to newspapers or magazines, which enjoy broad free speech protections. (A second suit brought by an online newspaper publisher in Manhattan, New York, also ended with a ruling that the CDA violated the First Amendment.)

The outcome of that challenge was the widely-anticipated 180-page ruling on ACLU vs. Reno, issued June 12, 1996, by a panel of federal judges in Philadelphia which maintained that the CDA violated the First Amendment and was too broad to be applied only to specific types of objectionable content.

The panel, which included U.S. District Judges Ronald L. Buckwalter and Stewart Dalzell, and U.S. Third Circuit Court of Appeals Judge Dolores Sloviter, concluded that "the plaintiffs have shown irreparable injury, no party has any interest in the enforcement of an unconstitutional law, and therefore the public interest will be served" by blocking the CDA's enforcement.

"Our findings of fact, many of them undisputed, express our understanding of the Internet. These findings lead to the conclusion that Congress may not regulate indecency on the Internet at all," Dalzell wrote.

The judges also wrote that the government had never sufficiently defined "indecent" and "patently offensive" as they were to be interpreted in the law.

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