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CDA opponents fire back

The Communications Decency Act is the most restrictive censorship scheme imposed on any medium, the ACLU tells the Supreme Court.

The Communications Decency Act unconstitutionally forces adult Netizens to speak only in terms suitable for children's ears, the American Civil Liberties Union argued today in its Supreme Court brief against the landmark law.

"Because there is no way for the vast majority of Internet speakers to distinguish between adults and minors in their audience, the CDA is the most restrictive censorship scheme imposed on any medium," the 30-page brief states.

The brief refutes the Justice Department's appeal to a federal court decision last June that blocked the CDA on grounds that it is unconstitutional. The Citizens Internet Empowerment Coalition (CIEC) also filed a brief against the CDA today; it is jointly fighting the CDA with the ACLU, but each legal team files separate briefs.

The Supreme Court will test the CDA in a historic case on March 19. Both groups contest provisions in the CDA that made it punishable by two years in jail and a $250,000 fine to knowingly transmit indecent material to minors over the Net. Such material is defined as that which, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities, or organs."

The ACLU assembly also includes the Electronic Frontier Foundation, the Electronic Privacy Information Center, Planned Parenthood Federation of America, and other nonprofit human and civil rights groups.

"While our brief emphasizes that the technical means do not exist to verify the ages and identities of visitors to Web sites, we believe that such requirements, even if they were feasible, violate the First Amendment and would destroy the Internet as we know it," said David Sobel, co-counsel on behalf of EPIC in the ACLU's case.

"Simply put, users have a right to access information anonymously, and the CDA seeks to deny them that right," he added.

Other ACLU arguments against the government's case include:

  • The government may not make laws that violate constitutionally protected speech for adults in the guise of protecting children.

  • The CDA is an unconstitutional flat ban on speech for all Internet surfers. The CDA criminalizes adult speech--in newsgroups, email, chat rooms, commercial online services, and the Web--about such topics as AIDS, safe sex practices, rape, gay and lesbian issues, and human rights.

  • The CDA is too broad, vague, and ineffective. The global nature of the Internet makes it almost impossible for the U.S. government to shield children from online pornography. Instead the ACLU argues, parents should be responsible for monitoring their children's surfing.

    The ACLU filed its initial legal challenge to the CDA on February 8, 1996--the day it was signed into law by President Clinton.

    On February 26, 1996 the American Library Association led the CIEC in filing a separate lawsuit representing Net users, publishers, Internet companies, and civil liberties organizations.

    The cases were combined, and the groups won a preliminary injunction against the CDA from a three-judge federal panel in Philadelphia last summer.

    The CIEC Supreme Court brief, like the ACLU's, states that the CDA is unconstitutional, and should be thrown out.

    "The distinction is that the CIEC is focusing on the argument that the Net is a unique communication medium that is distinctly different from broadcasting," Jonah Seiger, a policy analyst for the CIEC said today. "To apply broadcast regulations to the Net, the way the CDA did, is overly restrictive because every single user of the Net is a publisher."

    The the CIEC brief states the following arguments to shoot down the CDA:

  • Unlike the "dial-a-porn" law, upon which the CDA was modeled, the law is not expressly limited to "commercial" speakers--those who charge for access to their speech.

  • When Congress inserted the "indecent" and "patently offensive" standards into the CDA, it indicated it intended to adopt the broadcast standard used by the Federal Communications Commission. The district court found that the Internet, while unique, is more akin to telephone communication.

  • Indecent material on the Internet must be actively sought out, and most online content is preceded by a description. Therefore government regulation is not needed because parents have much greater ability to block or screen content on the Internet than with radio or television.

    The ACLU tailored its brief to address changes in the government's case since the Supreme Court decided to hear the case on December 9.

    The Justice Department has shifted from its argument in the first hearing, when it said people wouldn't be prosecuted if they used age-verification system--and that, therefore, the CDA didn't infringe on adults' rights to download and distribute pornography among themselves. The brief to the Supreme Court, however, focuses more on the underlying constitutionality of the statute.

    Delivered by Acting Solicitor General Walter Dellinger, the government's new brief established the government's basic argument that the CDA is constitutional because the First Amendment does not protect a right to distribute pornography to minors.

    "Much of the Internet's potential as an educational and informational resource will be wasted, however, if people are unwilling to avail themselves of its benefits because they do not want their children to be harmed by exposure to patently offensive sexually explicit material," the brief stated.

    In addition, Justice Department attorneys are expected to argue that children generally can't make informed choices about whether to view indecent material, so the government has the right to censor certain material to protect them.

    The next and final brief is due from government on March 7.

    Two bills to strike Net censorship from the CDA were also introduced Congress recently. On February 13, Rep. Zoe Lofgren (D-California) introduced the Child Protection Act of 1997. The bill came on the heels of Sen. Patrick Leahy's (D-Vermont) introduction of legislation January 28 to revoke the CDA.