The Supreme Court's rejection of the Communications Decency Act today made at least one thing certain: more legislation.
The political potency of protecting children from indecent material is too tempting for lawmakers to resist, even after their first attempt ended in failure. But analysts say any new legislation would have to more narrowly define "indecent speech" and would need to demonstrate that providers could adopt practical techniques to screen out children.
"The issue for the next round is going to be defining terms," said Michael Froomkin, a law professor at the University of Miami. "To make a system work at all you need a system of definitions, one that people can understand so they can rely on them and one that is fairly simple and easy so that everyone can adopt it. Doing that is going to be very very difficult."
Legislators planning to write a "CDA II" can look to today's ruling for guidance. In a separate opinion written by Justice O'Connor that partly dissents from the majority, she indicates that "adult zones"--places to which minors are denied access--might soon be technologically possible in cyberspace. When they are, laws similar to those that apply in the physical world could be applied.
"Cyberspace is malleable. Thus it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws. This transformation of cyberspace is already under way."
O'Connor also indicated that a law that more narrowly targets indecent transmissions between a specific adult and a minor could--and should--be upheld.
"There is also no question that Congress would have enacted a narrower version of these provisions had it known a broader version would be declared unconstitutional," she wrote. "I would therefore sustain the?provisions to the extent they apply to the transmission of Internet communications where the party...knows that all of the recipients are minors."
Harvard University law professor Larry Lessig, whose article "Reading the Constitution in Cyberspace" was cited in O'Connor's opinion, said the justice was right on the mark.
"She is quite realistic. There are lots of places in the real world that we zone, and she recognizes that while cyberspace is not there yet, it has the potential," he said. "When it does become easy to zone this space, it will be constitutional to do so."
Already, legislation to that effect is on the table. In February, Rep. Zoe Lofgren (D-California) proposed the Internet Freedom and Child Protection Act, which would require all Internet providers to offer some version of screening software such as Net Nanny, SurfWatch, or Cyber Patrol.
"There will be many in the country that want to take some step to protect children. That is honorable, but we also must do something that protects the First Amendment. This really does both," Lofgren said today. "It highlights the ability of screening software and makes sure that screening software is available. And it puts decisions in the hands of parents, not in the hands of censors as in the CDA approach."
Lessig, for one, is bothered by this assertion, which he calls a "typical" response to CDA.
"Screening will be political; there will be a lot of censorship built into these software programs. While bills that include screening software look like a quick solution, I am not sure what the net effect will be," he said.
Even the Clinton administration seems to be considering "technological" approach. "We can and must develop a solution for the Internet that is as powerful for the computer as the V-chip is for the television and that protects children in ways that are consistent with America's free-speech values," Clinton said in a statement after today's ruling.
But at least one analyst believes that the Clinton administration's turn to a technological solution is a savvy political move. David Johnson, codirector of Cyberspace Law Institute at Georgetown University, said the administration might be looking for an alternative to legislation so that it can coordinate its Internet policies.
"The Clinton administration has the possibility to say that they agree with the court's view that the Net is a global and dispersed medium and legislation is not the best way to protect kids. As it is now, they get a lot of credit for pushing self-regulatory systems for e-commerce. The court's ruling helps that by showing that the Net is not invasive and that there is room for self-regulation."
That, however, does not rule out bills from the House or Senate.
"It is true that any given member of Congress may have an incentive to propose new legislation, but whether it will go anywhere remains to be seen," he added.