By rejecting the most controversial provision in the Communications Decency Act in June, the Supreme Court unequivocally granted the Internet the same First Amendment protections as those staunchly guarded for print media.
The decision dramatically changed the climate in which the federal law was passed as part of the huge Telecommunications Act of 1996. Faced with the fear that children were being exposed to pornography around every corner of the Net, Congress passed the CDA, making it a felony--punishable by two years in prison and a $250,000 fine--to transmit or post on the Net "indecent" material that could possibly be accessed by anyone under age 18.
The high court sided with free-speech advocates who fought the law on grounds that it was overly broad, stifling the rights of adults, teenagers, and even children to use the Net to find or share information about such topics as homosexuality, medical issues, safe sex, or women's rights, for example. The Supreme Court justices also made it clear that the Net--at the time of the ruling--was not the equivalent of television.
The victory, however, has been short-lived as new battles have emerged. Although the White House has backed away from the CDA debacle, President Clinton along with many members of Congress are still trying to address parents' concerns about the red-light districts that could be cruised by their children on the Net. This issue was at the core of an event held earlier this month in Washington called the Children's Internet Summit.
Justice Sandra Day O'Connor and Chief Justice William Rehnquist wrote a separate opinion that dissented in part to the CDA ruling, creating an opportunity for future regulation. O'Connor suggested that Congress could set up "adult zones" and other technological barriers to keep children safe while letting adults surf at their own risk. "This transformation of cyberspace is already under way," she added, citing the evolution of blocking software.
While government, industry, and communities all seem to agree that children should be protected from obscene content and sexual predators, lines are not yet drawn as to what constitutes "indecent" or "inappropriate" content, and responsibility for safeguarding children online is still being shuffled from group to group.
The White House is now pushing the use of Internet filtering software or other tools that let parents choose to block sexual, violent, or profane online content. There is also a growing movement to screen out "hate" sites as well.
In arguing against the CDA, the American Civil Liberties Union and American Library Association said that filtering technologies were a better alternative to the CDA's provisions regarding indecency and minors.
The ACLU and ALA basically kick-started the popularity of blocking software with their case against the CDA. Now they are trying to derail efforts to make the products mandatory at public libraries, which are under pressure to ban access to pornographic material on the Net. Many defenders of the First Amendment say filtering technologies also bar entry to sites containing "indecent" speech, which the Supreme Court declared was too sweeping in its landmark ruling.
Aside from the local battles over filtering Net access at libraries, the primary Republican sponsor of the CDA has spawned a son of the now-defunct law. As he promised after the decency act was shot down, Sen. Dan Coats (R-Indiana) has introduced legislation that prohibits commercial Web sites from distributing any material that is "harmful to minors" to those under age 17.
The bill applies to any "communication, article, recording, or writing" that depicts "in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals."
Coats obviously studied recent Supreme Court rulings carefully, because he outlines that criminal material in his proposal would have to "lack serious literary, artistic, political, or scientific value," something the CDA did not clarify. The bill will likely be considered by Congress when it reconvenes in January.
Another case that promises to unfold next year is a lawsuit filed against the Justice Department, which seeks to overturn a separate provision of the CDA that makes it a felony to use a telecommunications device to knowingly transmit any "indecent" comment or image "with intent to annoy." The creators of Annoy.com, who filed the suit, admit their seething commentary site is for mature audiences but say they have a constitutional right to get a rise out of people with opinion pieces that are often laced with profanity.