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Supreme
Court Strikes Down Decency Act in Defense of Internet "Chaos"
by Shelley M. Liberto
From the September '97 issue of WWWiz
Magazine
Copyright © 1997 Shelley M. Liberto. All rights reserved.
As the most participatory form of mass speech yet developed, the
Internet deserves the highest protection from governmental intrusion...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.
"Dalzell, D.J., U.S. District Court, Eastern District of Pennsylvania.
In late June of
this year, the United States Supreme Court upheld the decision of a Pennsylvania
federal court finding the Communications Decency Act of 1996 (CDA) unconstitutional.
In so doing, the Court freed Internet content providers from exposure to
civil and criminal liability for transmission of "indecent" material. The
decision marks the demise of the government's attempt to regulate the content
of adult material on the Web, shifting the burden to parental supervision
as the primary means of shielding children from pornography. The decision
also reveals the judiciary's perspective on the social role of the Internet
as a colossal medium for free speech.
The Communications Decency Act of 1996
In 1996, Congress
passed and the President signed the CDA in a firestorm of controversy.
The new law resulted in a constitutional challenge by the ACLU in the case
of ACLU v. Reno, filed in the United States District Court, Eastern District
of Pennsylvania. The CDA called for strict civil and criminal liability
of fines and up to two years in prison for anyone who:
...uses an interactive computer service to send [or]...display in
a manner available to a person under 18 years of age, any comment, request,
suggestion, proposal, image or other communication, that, in context, depicts
or describes in terms patently offensive as measured by contemporary community
standards sexual or excretory activities or organs regardless of whether
the user of such service placed the call or initiated the communication.
[emphasis added]
By way of explanation,
the law classifies sexually oriented material as either "obscene" or "indecent."
Obscene expression falls outside the scope of the First Amendment protection
altogether. The distinction between the two is far from bright. Supreme
Court Justice Potter Stewart once defined obscenity as: "I know it when
I see it." Obscenity has been more precisely defined by the courts as material
that, according to contemporary community standards, appeals to the "prurient"
interest of the average person and depicts sexual conduct that is patently
offensive and lacks serious literary, artistic, political or scientific
value. The ill-fated "Decency" Act attempted to restrict the transmission
of material that was less offensive than "obscene," but merely "indecent"
by using a definition the Supreme Court found to be unconstitutionally
vague and overbroad.
The Supreme Court's Reasoning
Paramount to
an accurate and fair decision is the Court's understanding of what the
Internet really is. After all, only recently have issues involving the
Internet, and the Web in particular, been posed to our system of jurisprudence
which, in the case of the Supreme Court, is occupied by members of prior
generations appointed for life. The Supreme Court's orientation toward
our new free speech medium is refreshingly forward-looking. As the Court
understands the Internet:
The Internet is an international network of interconnected computers...[which]
now enables tens of millions of people to communicate with one another
and to access vast amounts of information from around the world. The Internet
is a unique and wholly new medium of worldwide human communication...Taken
together, these tools constitute a unique medium known to its users as
cyberspace"located in no particular geographical location but available
to anyone anywhere in the world. With access to the Internet...tens of
thousands of users are engaging in conversations on a huge range of subjects.
It is no exaggeration to conclude that the content of the Internet is as
diverse as human thought.
Given its factual
understanding of cyberspace, the Supreme Court applied our relatively ancient
standards of First Amendment free speech to the CDA in the context of a
"never-ending worldwide conversation." The Supreme Court found that the
CDA was so vague and overbroad that it violated the First Amendment. The
CDA on the one hand used the term "indecent," while on the other hand speaking
of material that is "offensive by contemporary community standards," language
previously used to define "obscene" material. Inasmuch as the CDA defined
neither term, the Court found that the difference in language would provoke
uncertainty among speakers about how the two standards relate to each other,
and just what they mean. The Court cited further examples of cyberspace
discussions pertaining to birth control, homosexuality, and prison rape
as being possible violations of the CDA.
The Court concluded
that the CDA was not sufficiently narrowly tailored to the Congressional
goal of protecting minors from potentially harmful material. The Court
cited the severity of criminal sanctions as possibly causing some speakers
to remain silent, rather than risking the communication of unlawful words,
ideas and images. The Court therefore found that for reasons of both vagueness
and overbreadth, the CDA was an unlawful infringement of the First Amendment.
The Court's decision has given us an historic first glimpse of its orientation
toward the Internet. The decision clearly accords the Internet free speech
protection that is at least as potent, perhaps more so, than that accorded
more traditional media.
The Court's Comments on Age Verification Systems
The Government's
primary defense focused on the CDA's "safe harbor" provisions that allowed
adult content providers to escape civil and criminal liability for taking
"good faith, reasonable, effective and appropriate actions" to avoid exposure
to minors. The Government cited age verification systems that use "tagging,"
and adult verification systems. The Supreme Court dismissed the systems
as inadequate defenses to liability because they were neither "effective,"
nor economically feasible for most noncommercial speakers on the Internet.
The Court accepted
the factual finding that the "tagging" system was merely an ethereal technological
proposal that does not yet exist. The Government argued that providers
of adult material could encode indecent communications that identify themselves
as such upon delivery. Recipients could block reception with appropriate
software. The Court further recognized that the "tagging" proposal was
impractical because every parent in America could not be expected to be
screening for "tags" to identify and block out the offensive material.
Accordingly, the "effective" aspect of the CDA's safe harbor was illusory.
Likewise, the
Court was not impressed with adult verification systems as a means of protecting
minors from adult material. The Supreme Court adopted the factual finding
of the lower court that there is "no effective way to determine the identity
or age of a user." Credit card verification and adult passwords do not
assure that the user is indeed an adult. The Court also adopted the factual
finding that an adult password requirement would impose significant financial
burdens on noncommercial sites because screening systems would be beyond
their commercial reach, and verification systems would discourage users
from accessing their sites.
The Chaos of Free Speech Prevails
In the final
analysis, the Supreme Court's first opinion addressing free speech issues
on the Internet is encouraging. The concept of a "worldwide conversation"
and the "chaos" of unfettered speech protected by the First Amendment bodes
well for the future. The Supreme Court has appropriately shifted the responsibility
for protecting minors from adult material providers to parents, as a trade-off
against inhibiting the free flow of expression on the Internet. In response
to the Government's argument that striking down the CDA would adversely
affect the growth of the Internet, the Court appropriately concluded:
The record demonstrates that the growth of the Internet has been
and continues to be phenomenal. As a matter of constitutional tradition,
in the absence of evidence to the contrary, we presume that governmental
regulation of the content of speech is more likely to interfere with the
free exchange of ideas than to encourage it. The interest in encouraging
freedom of expression in a democratic society outweighs any theoretical
but unproven benefit of censorship.
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