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Both sides expect new CDA

Even before the Supreme Court has ruled on the CDA, both sides are predicting another round of federal legislation.

WASHINGTON--Even before the Supreme Court has ruled on the Communications Decency Act, those on both sides of the case are predicting that another round of federal legislation regulating the Internet is inevitable.

  New legislation expected
Technologies force change
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CDA argued in high court
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CDA backers focus on children
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CDA technology takes the stand
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In often-skeptical questioning during Wednesday's historic hearing, justices appeared to be leaning against the law on grounds that it is overly broad and therefore impossible to enforce, as the law's challengers have argued. At the same time, the jurists seemed to indicate that some regulation was necessary to protect children from objectionable material.

Justice Antonin Scalia, who has nine children, said that it was unrealistic for parents to police all of their children's time on the Net. "If I had to be present every time my 16-year-old is on the Internet, I would know less about this case than I do today," he said. "That is simply not a realistic tell every parent, 'If you're worried about it, just don't let your teenager use the Internet unless you're there.'"

Comments like this made clear that the court may be open to other legal restrictions on the Net as long as they pass constitutional muster. But exactly what form this "CDA II" might take is anyone's guess--and everyone is indeed guessing.

Analysts on all sides of the issue agree that any next-generation CDA would likely be a narrowly cast piece of legislation that could include some kind of rating system.

"Realistically, you are going to see narrowly tailored statute that is pornography-focused," said Lawrence Lessig, a professor of law at the University of Chicago Law School. The question is, what will the mechanism be? That depends a lot on how the Supreme Court writes the opinion striking down the CDA."


Justice Stephen Breyer
I'm thinking is it possible to narrow the statute perhaps far more extremely than the government would like, but to commercial pornographers? Is there a way of reading it so it only applies to people who make significant amounts of money out of selling pornography across the Internet?

Chief Justice William H. Rehnquist
Well, what about the first radio people, you know, before the Federal Radio Act in 1927? Before that, they could just say, well, we like it the way it is. The government shouldn't have to tell us we've got to have all this equipment. But, nonetheless, the government did tell them, and that's certainly been upheld.

Justice Sandra Day O'Connor
The act just isn't specific. It says "indecent speech." I don't know that it's all that clear.

If the court finds the CDA unconstitutional because it is overbroad, Lessig said, a new law will target specific kinds of speech that are already defined, such as pornography and obscenity. However, if the court focuses on the inability of the law to sufficiently protect minors, they may recommend a tagging system for unprotected speech.

That is dangerous, he added. "I don't think we've thought through the consequences of this. It would facilitate government support for blocking too many kinds of speech...Let's focus on the specific things to block out."

Lance Rose, an Arizona attorney and author of the NetLaw legal guide for Internet service providers, agreed that a narrower version of the law is both imminent and likely to be upheld in the courts.

"Congress might get it right the very next time," he said. "The law would have to include a standard that would protect materials that had social value. It would have to have a merit test to safeguard material that had artistic, scientific, literary, and political value. That would completely eliminate the overbreadth argument, which will probably defeat the CDA in the Supreme Court this time around."

Rose argued that "the Net is not a medium--it's an environment where many media can appear. What should happen with the next CDA-type law is that individual media on the Net should be reviewed in terms of 'indecency' regulation, the same way they are off the Net."

"Chat is a new medium of the Net, so it should be reviewed as an individual medium. Because you can never guarantee that the occasional indecent or obscene comment won't show up, you could apply a couple of standards," he added. "If you knew indecent speech was going to happen, you could not let minors in, or for chat rooms that had unexpected conversation, you could tell people, 'Proceed at your own risk.' Also, you could apply a rating system."

While no one doubts that the issue will return to Capitol Hill, one legislator is trying to build a roadblock before a second CDA. Sen. Patrick Leahy (D-Vermont), a longtime free speech advocate and founding member of the Congressional Internet Caucus, has introduced a bill to repeal the CDA in the event the court upholds the law.

"The Internet Caucus is trying to find ways to continuously teach Congress. The Congress has to show responsibility when making these laws; it can't always be left up to the court," he said at the First Amendment Congress CyberRights conference here today.

Leahy said pro-CDA lawmakers are losing steam. "The Internet Caucus tries to find blocking software that is available so that parents can censor what they want. We will also create a list of things parents can do, once the ruling comes out."