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CDA Challenge Upheld

The Telecommunications Act of 1996 brought major changes to United States telecommunications law and included the Communications Decency Act (CDA), a series of provisions that – among other things – specifically prohibited but broadly defined indecency on the Internet. (See TidBITS-315 for more details on the Telecommunications Act).

President Clinton signed the Telecommunications Act into law on 08-Feb-96, and within five minutes of the signing the ACLU (American Civil Liberties Union) and a collection of other organizations and businesses immediately filed a challenge to the CDA portion of the legislation, arguing it unconstitutionally violated freedom of speech and was too vague to be reasonably enforced.

By 15-Feb-96, a limited, temporary restraining order against the CDA had been granted. Just last week, on 12-Jun-96, a three-judge panel for the U.S. District Court in Philadelphia ruled on the case and granted a preliminary injunction against the indecency provisions in the CDA, meaning that such provisions cannot be enforced unless a higher court of law overturns the injunction.

TidBITS doesn’t try to report on political news in an unbiased fashion (everyone has biases, no matter what they say), and I’m not trying to here; in fact, I’m delighted with the ruling, not just because the ACLU won, but also because of its content.

The District Court’s ruling has an extensive section about the facts behind the Internet, including how the Internet works, who uses the Internet, services available on the Internet, and more. This section makes for interesting reading for anyone trying to learn about the Internet. Those legislating or pontificating about the Internet should include this ruling on their required reading lists.

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The ruling states that the court has no problem with existing laws against pornography and obscenity, but that the CDA goes too far. The court denounced the CDA for vagueness, for the high cost of successfully barring minors from a site that might be considered indecent, and for not offering a sufficiently strong reason to restrict freedom of speech. The ruling also noted several other ways minors could be cut off from inappropriate material on the Internet, including the PICS proposal (where sites would be rated) and various software lockout products such as SurfWatch and CyberPatrol.




Portions of Judge Stewart Dalzell’s opinion in the ruling have been widely quoted, and I include here an excerpt from his comments. Such language from our legal system gives me hope that the Internet will be treated as an open forum where many people may easily give and receive information, and not as a broadcast medium dominated by large businesses.

"If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

"True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs’ experts put it with such resonance at the hearing: ‘What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.’ Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."

Interestingly, a footnote in the ruling notes that the ACLU withdrew its challenge to language that restricts discussions of abortion on the Internet. Apparently, the ACLU withdrew because both President Clinton and Attorney General Janet Reno have made it clear that "no one will be prosecuted under the abortion-related provision…. In view of this ‘longstanding policy,’ the Government contends there is no realistic fear of prosecution and, so the argument goes, no need or equitable relief."

Whether the government will take its case to the Supreme Court remains to be seen. Should they do so, I hope the Supreme Court seriously considers the facts and opinions presented in the ruling for a preliminary injunction.

For additional information and commentary on this issue, check out the following URLs.

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