The TRO Doesn't Go Far Enough
The only good news is that temporary restraining orders are only
intended to be quick, from the hip dispositions based on the
judge's first impressions, and there is a lot of room still
to educate and convince Judge Buckwalter about the merits of the case.
However, several things are disheartening about the TRO:
The temporary restraining order is only the initial salvo in
the case, however; there will be a more extensive opportunity to
educate Judge Buckwalter and his two colleagues on the three
judge panel, at the preliminary injunction hearing.
- The order leaves the "depicts or describes sexual or excretory
acts or organs" language alive. This section of the CDA, which makes
text on the Internet subject to local community standards of
"patent offensiveness" without regard to scientific, literary,
artistic or political value, is highly dangerous to freedom of
speech and can be used as a hook for all the prosecutions the
Justice Department may wish to bring. Thus, it is hard to see what
prosecutorial behavior the judge really prevented by restraining
another portion of the CDA using the phrase "indecent".
- This case stands or falls on the issue whether any
amount of regulation can be applied to the Net greater than that
which exists for books and newspapers. There is no sign the
judge yet understands this issue.
- The judge states that the CDA appears to be "narrowly
tailored" when in fact it is not. A narrowly tailored statute includes
a definition of "channeling", eg, how to avoid speech being accessed
by minors without censoring such speech entirely. Other existing
indecency laws applicable to television, radio, cable and telephone
provide that indecent speech may be disseminated after ten p.m. (tv and
radio), if a credit card may be used to access it (telephone), or
if a user must request it in writing to obtain it (telephone and cable).
The CDA gives no such guidance. If the view is corrrect that there
is no distinction between cyberspace and print media for
First Amendment purposes, even "channeling" regulations are impermissible.