Internet is Different,
International Herald Tribune, June 18, 1996.
court ruled last week that provisions of the so-called Communications Decency
Act are unconstitutional, saying in an emphatically worded decision that the
effort to criminalize Internet transmission of ''indecent'' material to minors
was badly drawn and overly broad and that it placed sweeping restrictions on
adults' constitutional rights to view material acknowledged to be protected by
the First Amendment. It is a well-deserved rebuke to a sloppily drawn law that
the administration should never have got so enthusiastic about in the first
place, although it was more or less obliged to defend the provisions in court
after the president signed the telecommunications law of which it was a part.
The decision was a relief to a wide range of libraries and educational and civil
liberties organizations, which, along with computer companies and commercial
Internet providers, had signed on to the lawsuit out of concern that they might
end up facing criminal prosecution for distributing materials that some
locality, somewhere, might deem indecent. The decision, like the challenged law,
has no effect on the status of materials that are already considered obscenity
or child pornography; these were illegal on the Internet, as elsewhere, and they
continue to be. But if the ''indecency'' provisions had stood, as the court
understood and properly stressed, they could have been applied to criminalize
discussions and artwork that might have been considered indecent in one locality
- for instance, nude sculptures in a museum collection, or the discussions among
members of one plaintiff group,
Stop Prison Rape.
The undefined nature of the categories deemed criminally actionable under the
''decency'' provisions was a key element in the court's decision, as was the
still changing and incompletely understood nature of the chaotic new medium
The administration may yet appeal the decision to the Supreme Court, but the
Philadelphia panel, at least, appears not to have found the issue a particularly
The decision offers 84 paragraphs of Internet history and description,
stipulated as accurate by both sides, that might profitably be read by those who
insist on comparing the electronic medium to television or telephones. It makes
clear that Internet communication does not share the special characteristics
that have been used to justify greater scrutiny of broadcasting, such as being
''uniquely pervasive'' and ''uniquely accessible to children.''
''Although content on the Internet is just a few clicks of a mouse away from the
user,'' Chief Judge Dolores Sloviter wrote, ''the receipt of information on the
Internet requires a series of affirmative steps more deliberate and directed
than merely turning a dial.'' Rather, she wrote, the public interest weighs
clearly in favor of ''a free flow of constitutionally protected speech.''
While the government argued that technology would likely arise to make it
possible for Internet users and content providers to protect themselves from the
law, whether by credit card proof of being over 18 or a hypothetical ''tagging''
system, judges pointed out that such technology does not yet exist and,
ironically, would probably be best at protecting commercial pornography sites
while leaving unprotected or silencing a wide range of nonprofit, health or
The president has said that, whether or not the administration decides to appeal
the ruling to the Supreme Court, he would ''continue to do everything I can in
my administration to give families every available tool to protect their
children'' from ''objectionable materials transmitted through computer
networks.'' He can do that a lot better by leaving this decision alone.