Internet Free Speech Wins Court Test

On June 11 a U.S. District Court ruled that the key provisions of the Communications Decency Act of 1996 -- against placing "indecent" or "patently offensive" communications on computers where they might be accessible to minors -- are unconstitutional because they violate the First Amendment of the Bill of Rights. Even though it is not final because the government is likely to appeal to the Supreme Court, this 39,000-word decision is immensely important because it explains the issues and the technology in a way that the legal community can understand. (The current Supreme Court, while conservative in many areas, has generally defended free speech.)

The June 11 decision does not affect the laws against obscenity and child pornography, which remain illegal on the Internet as elsewhere. But the "indecency" standard is much more far-reaching and vague than obscenity. For example, unlike obscenity, indecency "has not been defined to exclude works of serious literary, artistic, political or scientific value" (quotation from the court decision). The new ruling essentially gives the Internet similar First Amendment protection to what books, newspapers and other print media now have, instead of imposing the much more restrictive standards now applied to broadcast radio and television, which the Communications Decency Act would have done.

The decision includes an excellent summary of the technology and history of the Internet; we learned much from it. Also impressive is its review of the recent history of the First Amendment, and explanation of the reasons free speech is important in our system of government and society. The court also noted that there are effective ways to keep unsuitable material away from children, without restricting communication among adults.

The decision took particular note of the "market failure" by which both broadcast and print media have largely become controlled by a few large institutions, with most peoples' participation being passive -- and how the Internet is fundamentally different, with much lower barriers for entry, and essentially the same low barriers for speakers as for listeners. The Court clearly understood that the new law would have a disproportionate effect on individual citizens and on small organizations, while large corporations could protect themselves through expensive legal defenses, and by limiting their material to the mainstream viewpoints that we now receive through the broadcast and major print media. (The Court also noted that the new law would have little effect on commercial pornographers, who already exclude children by requiring credit cards for access to their materials, and therefore would not be much affected by the CDA.)

The historic importance of this ruling cannot be overemphasized, as many experts suspect that computer communication will become as important as the printing press in human cultural development. The new law would have effectively required adults to limit their use of this medium to communications suitable for children.

The case which led to this decision was brought by dozens of organizations and companies (in two separate legal actions which were later combined), including the American Civil Liberties Union, American Library Association, American Society of Newspaper Editors, Apple Computer, Microsoft Corporation, America Online, CompuServe, The Microsoft Network, and Prodigy. AIDS organizations included AEGIS, Critical Path AIDS Project, and The Safer Sex Page.

The decision provided sound bites which were quoted again and again in the media:

"The Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

The full text of the decision is available at various Internet sites, including http://www.aclu.org. AIDS TREATMENT NEWS followed the development of the CDA in issues # 227, 229, 236, 237, 238, and 240.