JUNE 12, 1996
What limits, if any, should be imposed on material transmitted over the Internet? Today's federal appeals court decision in Philadelphia changes the rules governing cyberspace. A three-judge panel deemed the Communications Decency Act unconstitutional. Margaret Warner has the story.
Check out a Newshour report on pornography on the Internet.
Visit The UCLA Online Institute for Cyberspace Law and Policy .
MARGARET WARNER: Four months ago, Congress and the President agreed as part of a major telecommunications reform law to make it a crime to transmit so-called indecent material over public computer networks. Several groups led by the American Civil Liberties Union immediately challenged that provision as an unconstitutional infringement of free speech. Today a federal appeals court in Philadelphia sided with the opponents and blocked enforcement of the law. The Communications Decency Act made it a crime to transmit indecent or patently offensive words or images over computer networks that could be accessible to children. Offenders could receive fines of up to $250,000 and two years in prison. Here to explain today's decision is David Post, a law professor at Georgetown University. Thanks for being with us.
DAVID POST: Thank you.
MARGARET WARNER: What was the court's reasoning in blocking enforcement of this law?
MR. POST: Well, the court said two major--made two major points. One was that because of the nature of the Internet, it is, as the court said, technically impossible or economically prohibitive to comply with this regulation. You can't tell when you send information out over the Net if the recipient is over 18 or under 18. And because of that, that would have a chilling effect on all communication because people would be restricted to the least common denominator, in effect. And the second thing that court said was this is a criminal statute with criminal penalties. Saying that you can't transmit indecent material without defining indecency is unconstitutionally vague. And I think those are the two major rationales that the court relied on.
MARGARET WARNER: So in other words, they were saying there's nothing wrong with the objective of keeping indecent or offensive material away from children but that this would infringe on the free speech rights of adults?
MR. POST: Correct. That this sweeps too broadly. In trying to accomplish that goal, the government was--the means it chose swept too broadly and as the court said, it was like burning down the house to roast the pig. It would have an effect on the communications among adults in trying to protect children and the Constitution does not--the First Amendment does not permit that.
MARGARET WARNER: Now, is this kind of indecency prohibition, though, is this regularly used in the regular broadcast media?
MR. POST: Well, one of the important things that the court said here, umm, and may be really quite path-breaking, is that the Internet is not like broadcasting. The courts have permitted the government to regulate speech on broadcast networks to some extent on the grounds that there's a scarcity of the resource. Not everybody can just get on the air and say what they want to say. Here the court specifically said the Internet is completely different. The Internet is much more like newspapers or mimeo machines. Everybody has access, more or less, and that means that the government has a much narrower scope for its regulation certainly compared to the broadcast media. It's a very important part of this decision I think.
MARGARET WARNER: Now, there wasn't an actual case. In other words, no one had ever been prosecuted under this law. So how did the judges go about even learning about or investigating the practical ramifications of this whole thing?
MR. POST: Well, one of the extraordinary things about this case was that the judges--it was a special three-judge panel which was set up to hear this challenge, and they took it upon themselves to learn about the Internet. They were, I think, quite candid about their own lack of information, about what is this monster that we hear about, umm, and there were a number of hearings. Computers were brought into the courtroom. Experts came and explained to them what's the World Wide Web and how do messages get from here to California and what is the routing system and what exactly is, as a technical matter, what is this medium, and I think one of the really interesting things reading the decision is how much the court learned and how much it is telling the Supreme Court perhaps about the very special characteristics of this as a communications medium, the unique characteristics of this.
MARGARET WARNER: Which the Supreme Court being where this case goes next?
MR. POST: Presumably. The government has a right in the statute, itself, to take this immediately to the Supreme Court without going through an intermediate appellate court level. Most people assume they will do so.
MARGARET WARNER: Okay. Now who--what individuals or groups were at risk under this law? In other words, who's breathing a little easier tonight?
MR. POST: Well, certainly the online services are breathing easier, the America Online, Microsoft Network, Compuserve, Prodigy, those, because they were very nervous because people get to the Internet through those services, they were concerned about their potential liability. Also, as the court emphasized very much, it is the smaller operators, the high school class that puts up a World Wide Web site perhaps and has a link to something that someone might conceivably find offensive, a discussion of AIDS or a rape crisis hotline, umm, I think it's the smaller people with fewer resources--Microsoft may be able to protect itself and to monitor but the hundreds of thousands of small entrepreneurs, if you will, they were at risk and nervous, and I think they are breathing easier today.
MARGARET WARNER: And then though what about the parents' groups and others who are concerned that their children can get on the Web now and surf around the Web and tap into these sites that do have sexually explicit material?
MR. POST: Sure--
MARGARET WARNER: Where do they go next?
MR. POST: It's a legitimate concern. I'm a parent myself. Where they go is, uh, again, as the court emphasized, there is software available out there, blocking software, that will allow individuals to control the access from their home machines, for example. There are online services that provide parental controls so that some sites are not accessible through those particular services. And I think what this opinion is about, is about parental responsibility, or individual responsibility for one's own action and not--the government is not going to protect you from those sites, and you'll have to do it yourself, and there are means available to do that.
MARGARET WARNER: Well, Professor Post, thanks very much.
MR. POST: Thank you.