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ELIZABETH FARNSWORTH: In another ruling today the Supreme Court extended free speech rights to cyberspace, striking down key parts of the Communications Decency Act. We’ll discuss the case in a moment, but first some background.
The Communications Decency Act, or CDA, which signed by the President in 1996 as part of the telecommunications reform bill, made it a crime to transmit indecent material in cyberspace unless appropriate actions are taken to prevent access by anyone under age 18.
Penalties range from fines as high as $250,000 to jail sentences of two years. Indecent is understood to mean patently offensive as measured by contemporary community standards. The primary sponsor of the law, now retired Senator James Exon, wrote it after discovering what types of material were being transmitted on the Internet.
SEN. JAMES EXON, (D) Nebraska: I had a remarkable demonstration of what is readily available to any child with the basic Internet access. It is not an exaggeration to say that the worst, most vile, most perverse pornography is only a few click-click-click away from any child on the Internet.
ELIZABETH FARNSWORTH: Sen. Exon was talking mainly about sexually explicit pictures and stories. They’re available, along with a wide range of other material, on the Internet, the global network connecting millions of home and office computers. People with access to the Internet can see just about anything these days, from information about the re-release of “Star Wars” to the centerfold in the current “Playboy.”
Advocates of the law say the centerfold and even more sexually explicit material are easily accessible by children. While there are warnings visible to anyone, a few clicks of a mouse allow a youngster to surf in an adult world. Opposition to the law comes from a coalition of at least 46 groups, including the American Civil Liberties Union and the American Library Association.
They contend the law restricts freedom of speech and argue that parents can monitor their children’s Internet use with filtering software. Cyberguard or Surf-Watch are two examples. They block out sites not appropriate for children under the age of 18. The day President Clinton signed the Act, the American Civil Liberties Union filed suit to strike it down. Last summer, a three-judge district court panel sided with the ACLU and ruled the Act unconstitutional. The ACLU and others celebrated that decision in rallies across the country. The Clinton administration filed an appeal to the Supreme Court.
ELIZABETH FARNSWORTH: Now, to Stuart Taylor. And, Stuart, what happened in the Supreme Court?
STUART TAYLOR: It really was a fairly complete victory for the people attacking this law as a violation of the First Amendment freedom of speech. The court was really unanimous in much of its holding which struck down the broadest provisions of this law on the ground that it would reduce adults to the level of speech fit for children because, given technology as it is and the law’s requirements, people would not be able to put dirty words or artistic nudes or any number of things that might not be fit for children out there where adults might want to see them on the World Wide Web or in chat rooms or whatever.
Two of the justices would have upheld the narrower provisions of this law that were at issue, and would have said specifically–they would interpret them as making it a crime for an adult to transmit such materials knowing that only children would be receiving them.
But I think that part of the law was struck down by the court too. The court said it was too broad, too vague, too big a burden on speech, and there’s lots of enthusiastic language about the Internet as a great democratic medium that the court did not think should be restrained or censored or regulated, except in a very careful way. They should have added at the same time Justice Stevens, the majority opinion, recognized the importance and legitimacy of protecting children from filth. He just said this was not the right way to do it.
ELIZABETH FARNSWORTH: So was the–I remember when we talked about this one the arguments were made–vagueness of the language was something that was brought up. Was that the main problem; that it was too vague, it wasn’t restrictive enough, the language?
STUART TAYLOR: That was part of the problem, but the court’s opinion was much broader than that. The core of it was that even if it wasn’t vague, even if it was very specific, that the effect of the law is going to mean that adults, libraries, whoever, parents, people who want to put a poem or a piece of art up on some Web site, educators, sex education materials, if they can’t send what they want to adults because the law says, well, if any kid stumbles along and sees this in the Internet, then you can’t–the court said then it’s unconstitutional, and because of the technology, at least now, it’s–it’s hard to check I.D.’s on the Internet. It’s not like a bar, where we can stop everybody at the door and say, let’s see your I.D..
Most portions of the Internet there’s no practical way to check I.D.’s, and all portions of the Internet the court said, based on lower court findings, for non-profit groups to check I.D.’s or take credit cards, or whatever, the various ways of identifying and trying to sort out children, are not feasible, technologically or economically.
ELIZABETH FARNSWORTH: This was a very important decision, wasn’t it, because it’s really the first court case dealing with this new form of communication, the Internet?
STUART TAYLOR: Yes, it is, and part of–a core part of the logic was the Internet gets the highest level of constitutional protection, unlike broadcast television or broadcast radio, which are thought of as particularly, they come right into the home. You turn it on and suddenly the kid sees whatever is there. The court held that the Internet and computers should not be regulated in that way; that (a) there’s no tradition for regulating them, and (b) that they aren’t as intrusive, and, therefore, they get the full panoply of freedom of press protections that the news media get, the print media.
The court also said things like through the use of chat rooms any person with a phone line can become the town crier with a voice that resonates farther than it could from any soap box. There’s a real enthusiasm for the Internet as a democratic medium that permeated the majority opinion at least.
ELIZABETH FARNSWORTH: Very interesting. Did the court say anything about kids’ First Amendment rights in this case?
STUART TAYLOR: It did. Because they found it to be an intrusion on adults’ First Amendment rights, it was not a central part of the analysis, but they did say that kids do have First Amendment rights; they’re not as broad as adults.
The court has held in many past cases involving bookstores, telephone dial-a-porn, radio transmission, et cetera, adult movies, that you can prevent kids from seeing so-called indecent material that adults would have a right see, but you can’t prevent them from seeing anything you don’t want them to see, and that was an additional sort of back step constitutional rationale; that this is so broad and so vague that it might prevent children from seeing materials they have a constitutional right to see, quite apart from the impact on adults.