Exon Heads to the Courts

P> The congressional battle over Internet censorship soon will move into the federal courts, which may decide within a few weeks whether the Constitution permits Congress to bar on-line pornography, say Washington lobbyists.

As the debate moves through the courts, the anti-censorship coalition likely will split, said David Sobel, an attorney with the anti-censorship, Washington-based Electronic Privacy Information Center. "There is no common interest" in keeping the on-line industry allied with the civil liberties groups, he said.

Although not finalized, the measure -- whose main sponsors are Democratic Sen. James Exon of Nebraska and Republican Rep. Henry Hyde of Illinois -- likely will win approval in Congress and the White House, said Bob Smith, director of the Interactive Services Association, which opposes the measure. The association is supported by the on-line industry, and is based in Silver Spring, Md.

According to Stirrup, the measure would bar the transmission of obscene images or text to anyone and ban the transmission of indecent images and text to people under age 18. Violators could be jailed for two years and fined up to $100,000.

Stirrup said the measure is needed to keep the Internet free of pornography. "It is not going to be 100 percent foolproof, but it [is] a step in the right direction," she said.

Opponents say the measure violates the Constitution's freedom of speech guarantee and would chill the growth of the on-line industry. Because the law would restrict the on-line exchange of "indecent" material among adults, "our view is that the indecency language as it stands would be held unconstitutional," said Smith.

The censorship measure will be judged unconstitutional, said Sobel, because "it attempts to graft a very restrictive standard -- indecency -- onto a medium that is more like print media than broadcast media." The courts long have held that the government can bar radio and television programs from broadcasting the "seven dirty words," he said. But newspapers don't suffer from such restrictions, he said.

If the court decides on-line services are more analogous to print than television, the censorship rules are more likely to be rejected, he said. If the court treats on-line services like television, Sobel said, it then must create a useful distinction between obscene material and that which has "redeeming features" such as artistic value.

A judge will decide after perhaps only two weeks of deliberation which side has the stronger case, said Sobel. If the judge believes the censorship bill is unconstitutional, he will bar its implementation pending a final appeal, said Sobel. But if the judge believes the law is constitutional, he will allow it to be implemented while the anti-censorship groups appeal their case.

The on-line companies will try to minimize their legal risks and responsibilities -- and already have won the "good faith" exemption from Congress, said Sobel. CompuServe Inc., Columbus, Ohio, recently cut off 200 sex-related Internet sites after German officials announced they were investigating the sites for possible violations of German censorship laws, he said.

The good faith exemption "provides some balance to the bill [but] we think it will still cause problems," said Smith. To prevent some of those problems, the on-line industry is developing software programs to help parents keep their children from viewing on-line pornography.