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Communications Decency Act Ruled Unconstitutional

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And there was joy in Mudville, for the mighty CDA had struck out.

On 26-Jun-97, the United States Supreme Court, in a unanimous decision (two justices dissented in part), ruled that the Communications Decency Act, better known as the CDA, violated the First Amendment of the United States Constitution. In the words of the official decision, "The CDA's 'indecent transmission' and 'patently offensive display' provisions abridge 'the freedom of speech' protected by the First Amendment." With that, parents, teachers, and librarians must decide for themselves, without the heavy hand of government but with the aid of filtering and blocking software, what is not acceptable for their wards to view online.

What They Said -- I'm no legal scholar, but from reading the full text of the decision (posted eight minutes after release by online advocates using a PowerBook and a Ricochet wireless modem), it seems that the Supreme Court had a number of problems with the CDA.

<http://www.ciec.org/SC_appeal/decision.shtml>

  • The court found the CDA overly vague, and felt that vagueness would have an "obvious chilling effect on free speech." In essence, if the government makes something illegal, citizens should be able to discern what actions have become illegal.

  • The court felt that the CDA failed to define the terms "indecency" and "patently offensive" adequately. Without a strong legal definition, it's difficult not just for normal people, but also for lawyers to determine whether some speech qualifies as indecent, patently offensive, or neither. Personally, I have trouble with situations like this, because it seems to me that "decency" is a concept that differs radically between people, cultures, and eras.

  • The court criticized the CDA for failing to account for the possibility that "offensive" material could have any socially redeeming value. The world is not all sweetness and light, and sometimes exposure to offensive material is worthwhile.

  • Finally, the court felt that the overall vagueness of the CDA was exacerbated by the attachment of criminal penalties to a content-based ban on speech.

What Now? Proponents of the CDA have vowed to continue fighting for a provision for controlling, well, the kind of speech they don't like (it seems the most accurate description). Some groups plan to lobby the U.S. Congress for a new statute, and CDA co-author Senator Dan Coats may introduce a new, more-focused bill. That possibility was given some encouragement by the concurring opinion written by Justice Sandra Day O'Connor (and joined by Chief Justice William Rehnquist). In that opinion, Justice O'Connor postulates that the creation of "adult zones" on the Internet would be constitutional. However, she also noted that "user based zoning is in its infancy," and "we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today."

<http://www.ciec.org/SC_appeal/concurrence.shtml>

Other possible legislation would require Internet service providers to offer filtering or blocking software. President Bill Clinton said the administration would study the Supreme Court decision, and noted, "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." Proponents of the CDA urged the administration to appeal the ruling.

It is worth noting that existing laws about the distribution of child pornography and "obscene" (a more rigidly defined term than "indecent") materials have applied in the past, and continue to apply to the Internet.

Some Thoughts -- I've been confused by the administration's defense of the CDA, not because I find any of the administration's arguments in the least bit compelling, but because it seemed so ludicrous that such a law could passed to begin with (okay, so it was part of the overall Telecommunications Reform Act of 1996), and all the more so that the administration pursued it after the initial defeat in a lower court (see TidBITS-315 and TidBITS-333). Perhaps I'm biased toward the concept of individual responsibility, but the rhetoric surrounding this debate astonishes me.

For instance, President Clinton said, "With the right technology and rating systems, we can help ensure that our children don't end up in the red light district of cyberspace." Sorry, but you don't "end up" looking at dirty pictures on the Internet - if you are looking at them, you intentionally followed a link to view them. The same goes for Usenet newsgroups, IRC channels, and most anything else. More to the point, the reference to the red light district is misleading, because it implies physical danger. That might be true in a real red light district, but anyone who accidentally wanders into a sexually explicit Web site, newsgroup, or chat room can leave instantly, without possibility of harm.

Additional Legal Resources -- My opinions above are just that, personal opinions, and hold no more weight in court than would a box of ping pong balls. For real legal opinions, I refer you to the archives of the Cyberspace Law mailing list, where the topics of free speech and CDA have been discussed at length.

<http://www.ssrn.com/cyberlaw/>

For those seriously interested in legal discussion, complete with copious footnotes (which, I understand, are a necessary part of the legal literary genre), I recommend a book called Law and the Information Superhighway. Written by Professor Henry H. Perritt, Jr. of the Villanova University School of Law, and published by Wiley Law Publications, the book is an exhaustive reference and textbook. It's not cheap at $150, nor is it a light read, but when a legal issue surrounding the Internet comes up, I turn to it for some basics. Check the page below for a review of the book.

<http://jilt.law.strath.ac.uk/elj/jilt/BookRev/ 3waelde/default.htm>

 

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