CDA rejected in landmark ruling

[C|NET SPECIAL REPORT: Internet begins self-regulation | Decision may not be appealed | Supreme Court would likely back ruling | CDA supporters vow to fight | Netizens rejoice on newsgroups | Timeline tracks law's path | Attorney assessments on CNET radio]

A three-judge federal panel ruled yesterday that the Communications Decency Act is unconstitutional.

In its decision to reject the federal law, the judges unanimously agreed to protect the First Amendment right to free speech in the landmark case of ACLU vs. Janet Reno, declaring the Internet the most participatory form of mass speech the world has yet seen. The CDA banned any online material deemed indecent or patently offensive that is accessible to minors.

"The Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through the CDA, interrupt that conversation," U.S. District Judge Stewart Dalzell wrote in an individual opinion submitted as part of the court ruling. "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

The Philadelphia court also granted the plaintiffs' request for a preliminary injunction against the law in a 71-page decision delivered by Dolores Sloviter, chief judge for the United States Court of Appeals for the Third Circuit for the Eastern District of Pennsylvania. The injunction prevents any prosecution under the law pending an appeal, which both sides predict will be filed within the requisite 20-day period.

"While we were hopeful, this decision quite frankly is a rave review. This is more than we could have asked for," said an ecstatic Todd Lappin, an editor at Wired magazine, which was among the ACLU supporters listed in the suit. "What this means for the Internet community is that the chill is off. We don't have to worry so much about whether you're going to have a government prosecutor walking through your door because you used a four-letter word on the Net."

Supporters of the CDA said they were not surprised by the decision but vowed to continue their fight. "The reaction is not unexpected, given the liberal leaning of many of the federal judges at this level, and we fully anticipate this to bump to the next level, which is the U.S. Supreme Court," said Mike Russell, spokesman for the Christian Coalition.

Nevertheless, today's ruling was an unequivocal victory for the ACLU and the more than 40 civil liberties groups, software companies, regional Internet service providers, and commercial producers of online entertainment and information. Among those joining the ACLU's challenge were the Electronic Privacy Information Center, the Electronic Frontier Foundation, and Human Rights Watch.

"The government's asserted 'failure' of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however," Dalzell wrote in his opinion. "The government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles."

The Communications Decency Act came into being as Section 507 of the sweeping telecommunications reform legislation now known as the Telecommunications Act of 1996, signed by President Clinton on February 8. Introduced by Senator James Exon (D-Nebraska), the CDA was a response to a groundswell of concern about pornographic and otherwise questionable content now accessible to virtually anyone with a computer, including minors, from the Web.

The law imposes penalties on anyone who "knowingly...makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age." Those found guilty under the law could be sentenced to a maximum of two years in prison and fined up to $250,000.

Members of the online community had lobbied Congress and the White House heavily to oppose the law, but their concerns about free speech were outweighed by the desire to protect children from potentially harmful content. While Clinton's decision to sign the bill with the CDA provision intact wasn't a surprise, it left many Netizens frustrated with their inability to persuade legislators that free speech on the Internet is a unique right that must be protected.

The American Civil Liberties Union stepped in to rally for the cause, which meshed well with its long-standing identification with free speech issues and allowed the group to appealed to a new audience--online users--that might not otherwise agree with its positions.

The ACLU filed a lawsuit challenging the CDA five minutes after the law was signed, arguing that the bill is unconstitutional because the term indecent describes a standard too vague for law enforcement and because the Internet is too large and complex to police effectively--both points that are affirmed by today's decision.

Moreover, the ACLU argued that the CDA treats the Internet as if it were a broadcast medium, adding that Web sites are more akin to printed publications and should therefore receive correspondent protection.

"This decision reflects an enormously sophisticated understanding of the Internet, and I think it will guide all future courts in deciding a whole variety of issues that apply to the net," said Christopher Hansen, legal counsel of the American Civil Liberties Union and lead lawyer for the plaintiffs in ACLU vs. Reno. "Most importantly, it sets us on a path toward free speech on the Internet."

Justice Department lawyers called only two witnesses to rebut the ACLU's arguments, choosing to focus primarily on demonstrating that great quantities of prurient content are easily accessible to minors on the Internet. Supporters of the CDA have argued that the threat of punishment is the only way to prevent unscrupulous pornographers from taking advantage of the medium, a need that they contend is sufficiently compelling to outweigh free speech protections.

The government argued further that the Internet is most comparable to the broadcast medium, which is heavily regulated to control content that might be seen by minors. But the court ruled in the ACLU's favor on this point as well, concluding that the Internet is a unique medium--with the closest parallel being neither print nor broadcast, but the telephone system.

"Internet communication, while unique, is more akin to telephone communication...than to broadcasting...because as with the telephone an Internet user must act affirmatively and deliberately to retrieve specific information online," Sloviter stated. "It is highly unlikely that a very young child will be randomly 'surfing' the Web and come across indecent or patently offensive material."

In addition, the judges came down squarely on the side of the ACLU on both the legal and technological aspects of the arguments, finding the term indecent too vague to apply to a medium that is international in scope and impossible to control.

"Are the contemporary community standards to be applied those of the vast world of cyberspace, in accordance with the act's apparent intent to establish a uniform national standard of content regulation? The government offered no evidence of any such national standard or nationwide consensus as to what would be considered patently offensive," U.S. District Judge Ronald Buckwalter wrote in his opinion.

Less than two weeks after the original ACLU suit was filed, more than 35 companies and organizations that might be directly affected by the law and perhaps prosecuted under it if it stands joined together to form the Citizens Internet Empowerment Coalition and filed a separate suit designed to overturn the CDA. The coalition was led by the American Library Association, the Center for Democracy and Technology, and the commercial online services, as well as software industry heavyweight Microsoft. The second suit was almost immediately consolidated with the ACLU case, and the legal team from the American Library Association joined with ACLU lawyers to prepare the arguments.

The Justice Department would later argue that such technologies provide "safe harbor" for individuals or businesses that might be subject to prosecution under the law, but the court rejected this argument in today's ruling.

"The CDA will, without doubt, undermine the substantive, speech-enhancing benefits that have flowed from the Internet," Dalzell wrote. "The diversity of the content will necessarily diminish as a result...Many Web sites, newsgroups, and chat rooms will shut down, since users cannot discern the age of other participants."

But while the decision clearly rejected the current language of the CDA, the court nonetheless made it clear that the Internet is still subject to existing obscenity and child pornography laws. In addition, Buckwalter noted that other statutory regulations on the Internet could possibly stand up to constitutional scrutiny.

"I believe it is too early in the development of this new medium to conclude that other attempts to regulate protected speech within the medium will fail a challenge," Buckwalter wrote. "That is to say that I specifically do not find that any and all statutory regulation of protected speech on the Internet could not survive constitutional scrutiny."

The full text of the Communications Decency Act ruling is available on the Electronic Privacy Information Center and the ACLU Web sites. A complete listing of recent First Amendment and other cases decided by the Supreme Court is available through a searchable index maintained by Case Western Reserve. An archive of RealAudio files of Supreme Court oral arguments and opinions can be heard at Northwestern University's Academic Technologies Department.

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