A federal judge's ruling on the Communications Decency Act (CDA) has turned out to be only a partial victory for the opponents of the provision.
U.S. District Judge Ronald L. Buckwalter yesterday issued a motion to block enforcement of the indecency provison of the CDA passed into law last week, but Buckwalter surprised the parties involved in the case by leaving out the "patently offensive" section.
"There are two parts of the statute that we've challenged, which are the indecent provisions and the patently offensive provisions," said David Sobel, legal counsel for the Electronic Privacy Information Center (EPIC). "The first section that the judge has determined to be vague contains only the term indecent, the other provision talks about material that is patently offensive, which he said isn't vague. "I have to say that we find this decision to be somewhat confusing," said Sobel.
Judge Buckwalter said the law failed to define the word "indecent" and agreed that the CDA is "unconsitutionally vague." Buckwalter wrote in a memorandum that "it is simply not clear, contrary to what the government suggests, that the word 'indecent' has ever been defined by the Supreme Court." The judge said that "patently offensive" material will be "measured by contemporary community standards, sexual or excretory activities or organs."
The restraining order will stay in effect until the judge hears arguments from the American Civil Liberties Union (ACLU), EPIC, and other parties involved in the suit. "I don't think any of us can read too much into this decision. Hopefully, the issues will become clarified as the litigation continues," said Sobel. The case will most likely end up in court in a few months, according to Sobel. "It's a very complicated issue both legally and technologically," he said. "The next step involves educating the three-judge panel and explaining why this is not like television or radio, which, of course, are the context in which previous First Amendment cases have been decided."
The new law defines indecency as "any comment, request, suggestion, proposal, image, or other communications that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."
Despite the temporary restraining order, Sobel warns that the "patently offensive" provisions are in effect starting today. Today is the first day that any potential enforcement could occur, based on the government's agreement last week to hold off for seven days. "People really do need to be cautious and take this very seriously. This is a felony that we're talking about, and people shouldn't be misled into believing that the statute has been struck down, because a very substantial part of it remains in effect," he said.