Published Online: March 26, 1997


For First Time, Court Weighs Free Speech in Cyberspace

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The Clinton administration asked the U.S. Supreme Court last week to uphold the Communications Decency Act, calling the 1996 federal law "a small price to pay" for keeping sexually explicit material away from children.

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"The Internet threatens to give every child a free pass into the equivalent of every adult bookstore and every adult video store in the country," Seth P. Waxman, a Department of Justice lawyer, told the court last week as it took up the question of free speech in cyberspace for the first time.

The lawyer for a broad coalition of organizations that challenged the law said the measure will chill free speech on the booming worldwide computer network.

"This law will have the unconstitutional effect of banning indecent speech to all adults in cyberspace," said Bruce J. Ennis, representing such groups as the American Civil Liberties Union and the American Library Association.

Last year, a special three-judge federal court in Philadelphia blocked the act from taking effect, ruling that the law was unconstitutionally vague and too broad to be justified by the federal government's interest in protecting children from indecent speech. ("Educators Express Relief Over Ruling Rejecting Decency Act," June 19, 1996.)

During oral arguments on March 19 in Reno v. American Civil Liberties Union (Case No. 96-511), several justices expressed reservations about the law. But the court did not appear as eager to strike it down as many legal observers had predicted.

Justice Sandra Day O'Connor said the Internet is a form of "public place ... much like a street corner or a park," where speakers traditionally have strong First Amendment protection.

But Justice Antonin Scalia suggested that the federal government is only trying to extend to the Internet restrictions on making sexually explicit material available to minors that have been upheld in other contexts. He noted that the court has approved of laws requiring pornographic magazines to be sold in stores and not in vending machines to keep them out of the hands of children.

Around the Clock

The administration's main argument in support of the act is that the Internet is a valuable education resource. But unless steps are taken to keep indecent material from reaching children, "parents and schools may be deterred from permitting children to use interactive computer services," the Justice Department says in its main brief.

The act defines indecent material as that which "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The law makes it a crime punishable by up to two years in prison and a $250,000 fine to display sexually explicit material to minors over any interactive computer service.

Indecent speech, unlike obscenity, is entitled to First Amendment protection, but the high court has ruled that it can be regulated to protect children. Thus, the court has upheld restrictions on indecent material on radio and television during hours when children are likely to be in the audience.

But material on the Internet is available around the clock and from around the world.

Justice Stephen G. Breyer said during the arguments that the Internet appears to have more in common with telephone communication.

Rapid Change

The law's challengers argue that the loose definition of indecency in the law would leave many Internet content providers vulnerable to legal attack. For example, sponsors of World Wide Web sites offering explicit information on how to prevent the spread of AIDS fear that displaying their sites to minors might run afoul of the law, even though the information would be valuable to teenagers. Librarians and artists expressed concern that the act could reduce the Internet to speech that is suitable only for minors.

The law provides a defense for content providers who screen viewers of indecent material by age, but opponents say nonprofit groups and individuals with Web sites could not afford such a process. Furthermore, age verification could not work in Internet discussion groups and other areas where there is rapid interactive communication, they argue.

The three judges on the lower federal court that reviewed the law agreed with those arguments.

Some justices last week appeared to be struggling to find a way to rein in the law without striking it down completely.

"Is there a way of narrowing the statute to [cover only] commercial pornographers?" Justice Breyer asked at one point.

Justice O'Connor suggested narrowing the definition of material that is "patently offensive" under the law.

Justice Scalia expressed frustration with the challengers' suggestion that instead of government regulation, parents could rely on software that purports to filter out sexually explicit content.

"Much of your argument is based on [technology that] is available today," he told Mr. Ennis. "But I throw away my computer every five years. This is an area where change is enormously rapid."

The court should rule in the case by the end of its term in late June or early July.

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