Decision Sharpens, but Doesn't Settle, Dispute Over Free Speech Versus Smut in Cyberspace
It's a question that won't go away: How do you protect free speech on the Internet while keeping its seamier side from children?
The conundrum is not likely to be settled any time soon as Congress and the courts continue to struggle over how to regulate a completely new medium of communication.
One of the first major turning points in the debate was reached this week, when a special three-judge panel in Philadelphia threw out a new federal law intended to restrict indecent material on line.
Whatever its moral intentions, the Communications Decency Act (CDA) violates the principles of free speech, held the judges.
"It's a victory for free speech and a free press, but it's only the beginning," says Robert Richards, a law and journalism professor at Pennsylvania State University in State College. "I think we're going to see other challenges as time goes on."
As it stands, Wednesday's court ruling is a huge victory for free-speech advocates. It would protect speech on the Internet as much as the content in newspapers. Perhaps more so.
"The Internet may fairly be regarded as a never-ending worldwide conversation," wrote US District Judge Stewart Dalzell in a separate opinion of the unanimous ruling. "The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
The ruling was closely watched because it represents the first major court decision on Internet speech.
"I think it's truly historic," says Robert Corn-Revere of the Media Institute, a Washington, D.C., think tank on free-speech issues. "Almost without exception when the courts are dealing with a new technology, they initially deny First Amendment protection, or at least restrict it dramatically."
Supporters of the CDA were disappointed but not surprised by the ruling.
"This is not unanticipated," says Mike Russell, a spokesman for the Christian Coalition, a pro-family citizen lobby group based in Chesapeake, Va. "But we're confident something will come about in the long run. The issue is that children need to be protected. There are laws in every state concerning the distribution of obscene books and magazines to children. This is no different," he says, even though it's a new medium.
First Amendment experts say they would not be surprised if the Supreme Court upheld this week's ruling. The CDA uses overly broad and vague terms, such as "indecent," which don't hold up well against First Amendment protections to free speech, they say. The notion that government could control Internet speech so ham-handedly brought together a wide-ranging coalition of nearly 60 groups, from Microsoft to the American Civil Liberties Union, which challenged the act in court.
From here, though, the issue is likely to get trickier. For example, how broad a coalition would form to oppose congressional language with much narrower and more carefully circumscribed restrictions? And what about the technological alternatives that the CDA's opponents in court claimed would work better than government action?
TRUE, software programs that block access to certain Internet sites rest on much firmer legal ground because parents decide what their children see, not government. But the technology is primitive and requires parents to be more computer savvy than their children. Some liberals already are questioning whether even this form of parental control represents censorship.
"Children are being subjected to an intense wave of censorship and control - V-Chips, blocking software, ratings systems on everything from movies and music to computer games," writes Jon Katz, in the latest edition of the influential Internet magazine Wired. But "the young have a moral right of access to the machinery and content of media and culture.... It's their means of attaining modern literacy, which in the next millennium will surely be defined as the ability to access information...."
Courts too have upheld the free-speech rights of older teenagers, experts say. The ACLU is a long way from defending a 17-year-old from the software controls imposed by parents, says Barry Steinhardt, associate director of the group's national office in New York. But "this blocking software is a double-edged sword and it may well be used to reduce the diversity of content. It's at least something that bears watching."
Thus, the issue is likely to drag on, says Mr. Corn-Revere. "Legislators will approach this issue with the zeal of the Energizer bunny."