JDI IN THE NEWS - ARCHIVED

The Internet is Different, International Herald Tribune, June 18, 1996.

A Philadelphia 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 itself.  

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 close call.  

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 literary discussions.  

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.