Free Speech Is Sustained on the Net

by Mark Mangan

On June 11, 1996 a panel of three federal judges in Philadelphia struck down the Communications Decency Act as unconstitutional, thereby keeping free speech alive on the Internet.

The governmental push for censorship began last February when President Clinton signed the massive telecommunications deregulation bill into law. As a part of this bill was attached the CDA, which criminalized the sending of anything "indecent" on the Internet. Although the proponents of this legislation have portrayed it to be a simple, clear way to keep kids from accessing pornography, it was in fact, far broader, vaguer and more destructive than that.

The CDA was not narrowly tailored to simply ban pornographic images. It made it illegal for anyone to "depict or describe" anything "indecent" on any part of Net--enforced with fines of up to $200,000 and 2 years in prison. Thus, Web pages, email messages, and newsgroup postings that used "dirty words" would be illegal. The law also made no execptions for anything with scientific, literary, artistic, or political value. Thus, quoting certain passages from Henry Miller's Tropic of Cancer or Salinger's Catcher in the Rye would be illegal.

Although the government tried to reassure the Net community that it wouldn't prosecute for works that had any social value, the law made no such reassurances. The CDA was clear: it was explicitly worded to ban anything that any community anywhere in America might find "indecent".

On the day that the CDA was signed into law, the American Civil Liberties Union filed suit against the government on the grounds that it was a clear infringement of First Amendment rights. The ACLU represented a host of over twenty plantiffs, ranging from AIDS awareness groups to individuals who offer Web sites with serious, but potentially "indecent" material.

The American Libraries Association also filed suit and conjoined its case with the ACLU, along with a group of major corporations, such as America Online and Microsoft. From this broad base of organizations, individuals and companies, the message was clear: the Internet is not like TV and the chilling effect upon its development from such censorship would be devastating to the new medium.

There is a potential problem for parents who want their kids to go online, but do not want them to have access the pornography that is out there. But the answer is not to ban all "indecency", sanitize all serious forums of communication and discussion, and allow adults to say only things which are fit for children.

The answer can be found in nongovernmental solutions. These concerns of parents represent real market forces that are driving the development of real technological solutions. Today there is blocking software for porn Web sites and online services such as AOL and Prodigy, which filter out adult material for subscribers who request it. Rating systems are also being implemented, which allow users to set their browsers to choose the degree of violent of sexual material that the browser allows into the home.

The case against the CDA came to a panel of three federal judges in Philadephia, who heard six days of hearings over the course of almost two months. In the end they agreed with the ACLU lawyers' argument that the Internet is indeed a "free marketplace of ideas." They agreed that it should not be treated like television. In the opinion, one of the judges wrote,