INFOTECH AND THE LAW

The Internet and Censorship

P> For nearly 40 years, the Supreme Court steadfastly has held that the government may not limit the adult reading population to only what is fit for children and cannot "quarantine the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence." A federal law violates the First Amendment if it limits adult communication to expression that is suitable for children.


In the Telecommunications Act of 1996, Congress created two new federal felonies to censor expression containing sexual content on the Internet. One section bans the use of a "telecommunications device" to transmit any comment or image that is "obscene or indecent" knowing that a recipient is a minor.

The other section makes it a felony to use an "interactive computer service" to "display" in a manner that would be "available" to a minor any communication that depicts or describes any sexual or excretory function in a "patently offensive" manner. In light of the Supreme Court's long-held view of the protection provided by the First Amendment, it is hard to see the Internet censorship provisions as anything other than a crass, ultimately pointless, political gesture.

The American Civil Liberties Union, on-line service providers such as America Online, CompuServe and Prodigy, associations of publishers, journalists and newspapers, and other groups have challenged Internet censorship in the federal courts. On Feb. 15, a federal judge in Philadelphia temporarily enjoined the Justice Department from enforcing the provision that would censor "indecent" communications on the Internet. The judge entering the injunction found that a ban on "indecent" communications was not enforceable because the definition of an "indecent" communication is too vague to be constitutional.

A week later, the Justice Department agreed, at least for the time being, not to enforce the provisions of the act that bar "patently offensive" Internet communications. The future of Internet censorship was placed into the hands of a panel of three federal district judges. The government completed its case on April 15. Oral arguments will be heard by the panel on May 10, and a decision is expected before June 1.

The proponents of Internet free speech do not challenge the efforts of Congress to ban obscene communications, nor do they defend communications designed to harass or threaten the recipient. The ground over which this challenge is being fought is really quite narrow, but of vital importance to the use of the Internet for unfettered discussion of important social, political, artistic and scientific issues. The question is whether this discourse will take place at a level appropriate for intelligent adults, or at one better suited for children.

When it comes to censorship under the First Amendment, labels determine whether speech is protected. Obscene expression -- that which lacks serious merit and holds only prurient appeal -- is not protected. But expression may be indecent, regardless of its social, artistic or scientific merit, merely by failing to conform to accepted standards of morality.

The attempt to ban indecent speech leads to some unexpected results. For example, when the censorship provisions were being debated in Congress, supporters of censorship quoted from material available on the Internet to demonstrate the vulgar extent to which some Internet publishers have gone. Some of that material would certainly not conform to the accepted moral standards of some communities. The text of that political debate, which took place in Congress, could not now legally be published on the Internet because doing so would make it "available" to legal scholars and minors alike.

The problem of indecent or offensive expression is challenging when children are considered. Speech that is unpopular or controversial may be simultaneously the most valuable to adult discourse and the most damaging to children. In instances where it is feasible to limit the distribution of indecent material to children while protecting the free access of adults to the same materials, such regulations have been upheld. Thus, governments may limit the sale of smutty magazines or pornographic films to adults.

The nature of other media makes it unfeasible for the publisher to prevent the distribution of indecent material to children without infringing on access by adults. The Internet is a case in point. With point-to-point e-mail as a possible exception, the Internet does not permit a publisher to determine or approve in advance the access of every recipient to his expression. When faced with this challenge in the past, the courts have been consistent and clear: indecent (but not obscene) speech, regardless of how provocative, unpopular or distasteful, is constitutionally protected.

Internet communications are regulated easily by the recipient, and consequently, there is little need to compel all Internet discourse to occur at a level suitable for children.

Jonathan Cain is a partner in the high-technology practice group of Shaw, Pittman, Potts & Trowbridge in McLean, Va. He can be reached via e-mail at Jonathan_Cain@shawpittman.com


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