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6/26/97 First Amendment concerns prompt court to relax cyberspace curbs

WASHINGTON (BP)–The flow of pornography on the Internet began to move undeterred again as the U.S. Supreme Court cleared the pipeline in a 7-2 decision striking down the Communications Decency Act June 26.
The court’s decision that the statute “abridges ‘the freedom of speech’ protected by the First Amendment” was prompted by the federal government’s appeal of a lower court’s ruling blocking enforcement of the Communications Decency Act, which was signed into law by President Clinton in February 1996.
The CDA, which was enacted as part of the Telecommunications Reform Act, prohibited the distribution through on-line computer services of indecent material to a person under 18 years of age. The legislation defined indecency as a depiction or description of “sexual or excretory activities or organs” which is “patently offensive,” according to community standards.
Calling the court’s ruling in Reno v. ACLU a shameful decision, Richard Land of the Southern Baptist Ethics and Religious Liberty Commission said the high court had unleashed “an almost invisible, subterranean, electronic river of pornographic slime” that will wash over innocent children.
The majority decision, written by Justice John Paul Stevens, held that since there can be no guarantee of “adult zones” within cyberspace, “a speaker cannot be reasonably assured that the speech he displays will reach only adults” and that, under CDA, that individual must then refrain from any indecent speech.
“But this forced silence impinges on the First Amendment right of adults to make and obtain this speech,” said Stevens, joined by Justices Anthony M. Kennedy, Antonin Scalia, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer in the majority decision. He said such a restraint then restricts all Internet users “to reading only what is fit for children.”
Chief Justice William H. Rehnquist and Justice Sandra Day O’ Connor filed a separate opinion concurring in the judgment in part and dissenting in part.
“This decision will stand as a monument to what a perversely anti-child culture we have become,” said ERLC President Land, stating the Supreme Court decision places the rights of adults over their responsibility to protect children.
“Even though it might be a good thing to shield children from this filth — since adults have the ‘right’ to see this material, then the wishes of the adults take complete precedence over the severe damage that may be done to children,” Land continued. “Once again in this increasingly anti-child culture, adult license had been confirmed over adult responsibility, and adult desires have take precedence over children’s needs.
“The Supreme Court ought to be ashamed of itself,” Land said.
Microsoft chairman Bill Gates hailed the ruling as an “important victory for anyone who cares about free speech or the future of the Internet,” in an Associated Press report.
Gates said Microsoft believes “technology, parental oversight and common sense can provide much more effective safeguards than restrictions on the flow of ideas and opinions on-line.”
The author of the Communications Decency Act, U.S. Sen. Dan Coats, R-Ind., disagreed, saying with the ruling the Supreme Court “has entered dangerous, unexplored territory.”
“The court is telling parents to abandon any hope of a decent public culture,” Coats said, adding the court is throwing “families to fend for themselves in an Internet universe of raw indecency.”
“Millions of children will be victimized by the failure of this court to protect them from the most vile hardcore pornography and exploitation on the Internet,” said Focus on the Family’s vice president of public policy, Tom Minnery. The decision sanctions cyberspace as “a dangerous place where pedophiles and child pornographers can victimize children in the name of the First Amendment,” Minnery said.
In his arguments before the Court March 19, the Department of Justice’s Deputy Solicitor General Seth Waxman told the high court there are 8,000 sexually explicit sites on the World Wide Web, threatening to give children a “free pass into the equivalent of every adult book store and (adult video store) in the country.”
Congress should be able to adopt a law such as the CDA “when the alternative is every child in this country” having access to Penthouse or Hustler magazines, he said.
The American Civil Liberties Union, the American Library Association and assortment of computer, journalism and advocacy groups challenged the act, saying its definition of indecency was vague and the law too broad.
Bruce Ennis, arguing for the ACLU and others, told the justices the lower court ruling against the legislation should be upheld because:
— The CDA “bans speech;”
— It is ineffective;
— There are less-restrictive means of protecting minors that would be more effective;
— The CDA “chills much speech that is not indecent.”
The court’s decision to strike down CDA was preceded by a report the Clinton Administration was preparing to back down from its support of the act’s intention.
The June 16 New York Times reported senior administration officials were preparing a new communications policy that reportedly will allow the “on-line world” to regulate itself, suggesting obscenity and indecency rules currently applied to television and radio are unacceptable for the Internet.
The administration’s apparent change-of-direction has angered some who accuse Clinton of raising “waffling to an art form,” The Times said.
The document, prepared by a group led by White House advisor Ira Magaziner, notes blocking devices are available for parents to use in limiting what material their children can access on the Internet, The Times said.
“To the extent, then, that effective filtering technology is available, content regulations traditionally imposed on radio and television need not be extended to the Internet,” the most recent draft of the policy says, according to The Times. The draft offers that “unnecessary regulation or censorship” might stunt the growth and diversity of the Internet.
The Times report quotes an unnamed senior government official who said the president’s signing of the law was “pure politics,” noting Clinton would have been ill-served to “be against a bill limiting the display of pornography to children.” Other officials defended the administration’s pending swing in viewpoint, calling it “only prudent planning for what to do if the law is struck down,” reported The Times.
Under CDA those found guilty of knowingly disseminating indecent pornography may be imprisoned for a maximum of two years and forced to pay a fine. The legislation would apply whether the material was sent directly to a minor or displayed in a manner available to a minor.
Challengers to the CDA said they are not contesting the obscenity, child pornography and solicitation provisions of the law.
Under the legislation, on-line services and access providers are not held liable for providing access to systems or networks over which they have no control. If the provider is aware it has such material available, it is liable.
On-line services such as CompuServe, America Online, Prodigy and Microsoft Network were among those who challenged the CDA. Also included were some AIDS advocacy organizations and the Planned Parenthood Federation of America.
Supporting them with friend-of-the-court briefs were such organizations as the Chamber of Commerce, Playboy Enterprises, ABC, CBS and NBC.
Supporting the government’s defense of the law were the Enough Is Enough anti-pornography organization, the American Center for Law and Justice and Morality in Media. Signers onto Enough Is Enough’s brief included Focus on the Family, the Salvation Army, the National Association of Evangelicals and the Religious Alliance Against Pornography. The ERLC’s Land is on RAAP’s executive committee.
The legislation establishing the CDA passed the Senate by a 91-5 vote and by a 414-16 vote in the House of Representatives.

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  • Dwayne Hastings