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 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.