Online Smut Law Off, On Again

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Online Smut Law Off, On Again

By Neil Munro
Staff Writer

The Supreme Court's decision to strike down the Communications Decency Act will prompt the U.S. Congress to write a new law to curb online smut, and also better equip industry to defeat a variety of federal and state regulatory schemes, say industry executives.

The court's 7-2 decision lifts from companies the risk of CDA-related lawsuits and the expense of meeting CDA's rules, which would have curbed the type of images that companies could have shown or carried on their networks.

"The Internet is ready for prime time," rejoiced Bill Burrington, the Washington-based lobbyist for America Online, Dulles, Va. For example, the CDA could have hurt the growth of online commerce, which will rely heavily on online advertising that the CDA might have restricted, he said. "That's why the [CDA] issue had far-reaching consequences," he said.

The decision "is the legal birth certificate for the Internet. ... There will be very few ways for Congress to restrict its growth," said Bruce Ennis, who argued against the CDA in the Supreme Court. Ennis is a lawyer at the Washington-based firm of Jenner and Bloch.

"The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community," according to the court's decision. Dissenting justices Sandra O'Connor and Chief Justice William Rehnquist also agreed to strike down the CDA, but argued that a narrower version could be upheld, especially if improved software is developed to bar children from "indecent" online discussions.

The court preserved the CDA's restriction on obscene images and may approve a future, narrower version of the CDA, said CDA proponents, including Cathy Cleaver, a lobbyist for the Washington-based Family Research Council, a conservative group that helped draft the CDA.

One measure being drafted by Sen. Patty Murray, D-Wash., would try to create incentives for the operators of World Wide Web pages to label their sites as child-friendly or adult, and criminalize deceptive labeling.

Murray's bill would allow online service providers, such as Microsoft Corp., Redmond, Wash., to avoid possible lawsuits from parents displeased by their child's viewing of online smut, if they use a software-based rating system, such as the industry-backed PICS rating system developed by the World Wide Web Consortium, based in Cambridge, Mass. Her bill also calls for the Federal Communications Commission to nominate acceptable rating systems.

Also, Rep. Zoe Lofgren, D-Calif., has introduced a bill requiring Internet providers to offer smut-filtering software to their subscribers.

Additional anti-smut measures have been promised by Sen. Dan Coats, R-Ind., and by conservative groups such as the Family Research Council.

The White House plans to use its clout to push anti-smut measures. A recent White House statement said President Bill Clinton would meet with industry and other groups to promote the use of smut-filtering software. "With the right technology and rating systems, we can help ensure that our children don't end up in the red-light districts of cyberspace," according to the statement.

However, industry executives and free-speech advocates - as well as one conservative congressional staff member - said the court's decision to bar content-based regulation will make any anti-smut measures very difficult to legislate. "There isn't any real leeway" left by the court for future legislation intended to restrict the distribution of particular online content, said Paul Smith, a lawyer at Jenner and Bloch.

In response, industry executives said they would step up efforts to distribute easy-to-use software that is intended to help parents block their children's viewing of online smut.