The Supreme Court's Landmark Internet RulingBy David M. Nadler and Kendrick C. Fong Contributing WritersIn a landmark decision June 26, the U.S. Supreme Court struck down the Communications Dece

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The Supreme Court's Landmark Internet Ruling

By David M. Nadler and Kendrick C. Fong
Contributing Writers

In a landmark decision June 26, the U.S. Supreme Court struck down the Communications Decency Act of 1995. In holding the act unconstitutional, the Supreme Court affirmed the decision of a three-judge district court panel and recognized that the Internet is a new communications medium that transcends traditional physical boundaries and should be afforded maximum protection under the First Amendment.

The act, which was signed into law as Title V of the Telecommunications Act of 1996 was intended to protect minors from "obscene" and "indecent" material on the Internet. The act, however, defined "indecent" as anything that "in context, depicts or describes, in terms of patently offensive as measured by contemporaneous community standards, sexual or excretory activities or organs." The law would have made it a crime punishable by two years in prison and a $250,000 fine to transmit "indecent" material to minors over the Internet.

In affirming the district court's decision, the Supreme Court recognized two serious flaws in the government's attempt to regulate cyberspace communications. First, in the majority opinion, seven of the nine justices determined that the restrictions on speech imposed by the act were unduly vague and, therefore, infringed on the First Amendment's guarantee of free speech. In reaching this conclusion, Justice John Paul Stevens, writing for the court, noted that there was no way for a speaker to be reasonably certain whether a "serious discussion about birth control practices, homosexuality ... or the consequences of a prison rape would violate the CDA."

The court reasoned that this uncertainty would result in a chilling effect on free speech because the act's vague use of the terms "'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value." In particular, the court acknowledged that the severity of the criminal sanctions may well cause those on the Internet to remain silent rather than communicate about even arguably lawful words, ideas and images.

In reaching its holding, the Supreme Court recognized that "good intentions" - protection of children from harmful material - was the predicate for the act. The court, however, concluded that this well-intentioned desire to shield children from potentially offensive material could not justify the suppression of all such material. The court reasoned that regardless of the strength of the government's interest in protecting children, "the level of disclosure reaching a mailbox cannot be limited to that which would be suitable for a sandbox."

Second, the court recognized that the act's flexible "benchmark" in determining indecency - contemporaneous community standards - would, in effect, limit speech to that which is acceptable in the most restrictive of real-world communities. This problem first arose in Thomas vs. United States (6th Cir. 1996), which upheld the convictions of a California couple for violating Tennessee obscenity laws. A postal inspector downloaded pictures from the couple's California-based bulletin board system. The trial court jury found that the pictures violated local community standards, even though they were deliberately extracted from a place where the pictures did not violate local standards.

The Supreme Court recognized the difficulty illustrated by this situation: Networked communications never actually enter a physical community. People create cyberspace communities based on affinity rather than geography. Justice Stevens pointed out that "a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise." This, the court said, was overly broad and unduly restrictive of speech.

All nine justices noted that blocking and filtering software and parental supervision could be used to protect children from accessing indecent and offensive material on the Internet. While this approach may not work in every instance, it satisfies the delicate balance between free speech and the importance of restricting the exposure of minors to indecent material. In a separate opinion, two justices agreed with the majority that the act was unconstitutional, but only because it would restrict adult access to "indecent" information on the Internet.

At the end of the day, the court realized the true importance of the Internet and what it represents. As Justice Stevens stated, the Internet is the new "marketplace of ideas" and its potential for the extension of free expression is tremendous. The Internet also is a reflection of the real world and, as in the real world, speech can be unfiltered, unpolished and unconventional. Here, the court correctly concluded that the interest in encouraging freedom of expression and the exchange of ideas outweighs any censorship of the Internet.

David M. Nadler is a partner in the Washington firm Dickstein Shapiro Morin & Oshinsky LLP. He can be reached at NadlerD@dsmo.com. Kendrick C. Fong is an associate with the firm.

©1997, TechNews. All rights reserved.

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