Detractors of the Communications Decency Act celebrated after a three-judge panel in Philadelphia unanimously concluded that
the law is unconstitutional, but CDA supporters are dismissing the ruling as a minor "speed bump."
"This is a huge victory for both the First Amendment and the Internet,"
said David Sobel, legal counsel with the Electronic Privacy Information Center, one of the many organizations to add its name to the ACLU suit.
But only for today, opponents say.
"It's a short-lived victory, and I'm telling [ACLU supporters] to enjoy their day in the sun. But the legal issue that the court rested their opinion on seems to be that Congress can't use indecency at all in this medium, and I think that the Supreme Court is going to disagree with that," said Bruce Taylor, president of the National Law Center for Families and Children. "I think that the Internet is as mass-communication as telephone,
dial-a-porn, cable, and broadcast."
Although many legal experts believe that the Supreme Court is likely to affirm today's decision if it agrees to hear the case, CDA supporters are already plotting the government's strategy for an appeal. "The easiest argument for the government will be that indecency is an
established standard to protect children that was developed by the U.S.
Supreme Court and the Federal Communications Commission, and it is as
easily adaptable to the Internet as it has been to broadcasting and
cable," said Mike Russell, spokesman for the Christian
Taylor added that the court should have drafted its opinion to narrow the restrictions of the CDA, rather than rejecting it outright. "The court should have interpreted it so that it would have
been more easily understood, rather than trying to strike it down because
they didn't understand it," he said.
Taylor and Russell expect the Supreme Court to be swayed by the argument that children must be protected from indecent material, but ACLU lawyer Chris Hansen says that this reaction minimizes the importance of the decision.
"This case is not about pornography. What Congress tried to ban in this law was socially valuable speech that happens to be about sex, about how to prevent sexual diseases, about censorship itself, or speech about terrorism," Hansen said. "That
speech is now safe on the Internet and will continue to be."
Sobel, however, cautioned anti-CDA groups to remain on the alert. "The last word has not been spoken on this, and I think
people do need to remain cautious and not assume that the CDA is a dead
letter," he said.
"The fact of the matter is that it could still be
resuscitated by the Supreme Court," Sobel said. And if that happens, he added, the government could choose to prosecute people retroactively.
But for the moment, the decision has drawn a collective sigh of relief from supporters of a worldwide, unregulated Internet.
"Unfortunately, the enactment of the CDA in this country seemed to have started a trend around the world toward government regulation of content on the Internet," Sobel said. "I'm hopeful that today's decision will be the first step in reversing that trend and will finally put the United States in the position that it should be on this issue: a leadership role in support of free speech on the Internet."
The full text of the Communications Decency Act ruling is available on the Electronic
Privacy Information Center and the ACLU Web sites. A complete listing of recent First Amendment and other cases decided by the Supreme Court is available through a searchable index maintained by Case Western Reserve. An archive of
RealAudio files of Supreme Court oral arguments and opinions can be heard at Northwestern University's Academic Technologies