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Unshackling Net Speech

In its first foray into cyberspace, the Supreme Court says the first amendment applies there too

By Joshua Quittner

TIME magazine

(TIME, July 7) -- One of the key ideas behind the Internet was to build a computer network that could withstand a nuclear holocaust. Last week the Net proved its resilience in the face of another sort of attack. The Communications Decency Act, signed into law by President Clinton last year, was designed to protect children by prohibiting "indecent" speech or images from being sent through cyberspace. But even before Congress passed the legislation, free-speech advocates were blasting it as an unacceptable infringement on the First Amendment.

Now the Supreme Court has agreed that the CDA is precisely that. The court, while disagreeing about some issues in the case, unanimously concluded that reducing online communication to a safe-for-kids standard is unconstitutional. "The interest in encouraging freedom of expression in a democratic society," wrote Justice John Paul Stevens, "outweighs any theoretical but unproven benefit of censorship."

It was a decisive--though not unexpected--victory for civil libertarians. Opponents of the CDA, led by the American Civil Liberties Union and the American Library Association as well as dozens of other plaintiffs, including Planned Parenthood and Human Rights Watch, had argued that the statute was so vaguely worded and ill defined that discussions in online chat rooms about abortion or contraception could have attracted the vice squad. Says Ira Glasser, executive director of the A.C.L.U.: "It would have criminalized all sorts of speech that would never have been criminalized before."

And that, said the court, could have crippled the Internet, which now has some 50 million users. Indeed, wrote Stevens in his 15-page opinion, the CDA threatened "to torch a large segment of the Internet community." Clearly the Justices, like many newbies before them, were swept up in the global reach and boundless potential of the medium. "Any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox," Stevens observed.

Minutes after the ruling was handed down, the court could have seen that phenomenon in action. At the click of a mouse, the text of the opinion was piped across the Net and plastered on computer sites from New York City to Australia. A laptop computer in New York was used to "Netcast" the audio portion of an A.C.L.U. press conference to all corners of the earth. Chat rooms and message boards were choked with Net folk weighing in about what it all meant. Computer jocks even ventured forth into the sunlight for real-time, nonvirtual victory parties. "Let today be the first day of a new American Revolution--a Digital American Revolution!" said Mike Godwin, attorney for the Electronic Frontier Foundation, addressing a crowd of revelers in San Francisco.

CDA proponents were every bit as vociferous in defeat as their counterparts were in victory. Members of the anti-porn group Enough Is Enough, led by former Gary Hart co-scandalist Donna Rice Hughes, demonstrated outside the Supreme Court with signs that read HONK IF YOU HATE PORN and CHILD MOLESTERS ARE LOOKING FOR VICTIMS ON THE INTERNET.

Legislators seized the moment as well. "Parents are going to have to realize that a computer without any restrictions to children is just as dangerous to their minds and development as a triple-X store," said retiring Indiana Senator Dan Coats, co-author of the CDA. "The court has ignored the clear will of the Executive Branch and the Congress and the clear will of the American people."

In fact, though, the court did not rule that government cannot regulate the Internet. Nor did it alter the long-standing legal prohibition against obscenity, which remains unprotected speech, both on and off the Net. It simply said that the CDA as written was fatally flawed because in trying to protect children it would also keep adults from getting material they have a legal right to see. That gives CDA forces hope that they'll be able to revisit the issue. "The opinion gives us a good road map to what the courts will allow," says Bob Flores, senior counsel of the National Law Center for Children and Families. Vows Don Hodel, the recently installed president of the Christian Coalition: "We won't accept this as the last word."

Nor, evidently, will the President. The White House began backing away from its support of the clearly doomed CDA months ago. But Administration officials have recently come at the problem from a new angle. They propose to fight technology with technology. This week President Clinton will convene a meeting of Internet providers, family groups and others during which he'll propose to protect kids from indecency with a software fix.

While the details have yet to be worked out, White House staff members hope to talk Website operators into a kind of universal rating system. Combining it with software browsers used to access much of the Net, parents could in theory set their own comfort level and filter out the naughty bits. "If we are to make the Internet a powerful resource for learning, we must give parents and teachers the tools they need to make the Internet safe for children," Clinton said last week. "With the right technology and rating systems, we can help ensure that our children don't end up in the red-light districts of cyberspace."

Good luck. Software filters and online ratings systems have been around since before the CDA was born, and they've always been beset with problems. Recently, for instance, when Microsoft began backing a ratings standard known as RSACI and started including the filter as part of its browser, Internet Explorer, the company quickly found that the "solution" could keep large numbers of viewers away from its news site, MSNBC. Microsoft quietly removed the rating. The problem should have been foreseen. News, after all, frequently covers violent, adult-oriented subjects, which puts many news stories into the same verboten range as porn. While RSACI officials have proposed offering a news exemption, it's hard to see how that could work. Readers of the sex-oriented newspaper Screw, for instance, might well consider it just as newsworthy as the New York Times.

Still, the First Amendment notwithstanding, many Americans feel that parents have a legitimate right to protect their kids from inappropriate material. "You can't connect every high school in America to the Net unless there's some way to ensure that kids won't see what they're not supposed to," says Lawrence Lessig, a Harvard Law School professor and author of an essay, "Reading the Constitution in Cyberspace," that was cited repeatedly by Justice O'Connor in a minority opinion. "It can't be the case that Congress has no power to regulate here." <