CDA's roller-coaster ride

Heralded by some as the case for the future of free speech on the Internet, others say the fate of the CDA is only a sideshow as the Net continues to face regulatory efforts on multiple fronts.

4 min read
Since President Clinton signed the Communications Decency Act last February, it has been challenged, blocked, appealed, and sent up to the Supreme Court all in ten months, a blink of an eye in legal terms.

Heralded by some as the case to determine the future of free speech on the Internet, others say the fate of the CDA is only a sideshow as the Net continues to face regulatory efforts regarding content on multiple fronts, including the copyright and trademark arenas.

The CDA came into being as Section 507 of sweeping telecommunications reform legislation. It made it illegal to knowingly transmit "indecent" material using forums accessible to minors such as the Internet. Violators risked a sentence of up to two years in prison and a $250,000 fine.

The law has yet to be enforced. Immediately after the law was passed, the American Civil Liberties Union and Citizens Internet Empowerment Coalition, which represents Internet users industry groups, filed suits in Philadelphia, charging that the law's language was too broad and violated the First Amendment. The ACLU won a preliminary injunction against the law in June as part of a ruling widely celebrated on the Net that found the CDA to be unconstitional.

The government wavered for a few days and then went ahead and appealed the decision to the Supreme Court. On December 9, the Supreme Court decided to hear the case. Both sides say they look forward to the case which may set a binding precedent.

The Supreme Court hearings are expected to start in March, according to the ACLU.

Legal analysts speculate that the court will most likely agree with the Philadelphia court's decision, affirming that "indecent" is an overly broad term that unjustifiably infringes on the rights of people who have a legitimate need to discuss topics such as AIDS, sexuality, and abortion online.

But analysts predict that even if the Supreme Court affirms the Philadelphia decision, it won?t be the end the CDA. They predict a "CDA II" will resurface in Congress with refined language in an attempt to put a law on the books that protects children from obscene or indecent online material.

Jonah Seiger, a policy analyst for the Citizens Internet Empowerment Coalition, which is fighting the CDA, says the wording of the final ruling will determine what happens next.

"If the Supreme Court says Congress can't regulate indecency on the Net at all, then there's not much room for Congress," he said. "But if the court doesn?t go that far, which is possible, there may be more room for Congress to muck around here."

Robert Richards, associate professor of journalism and law at Pennsylvania State University and founding director of the Pennsylvania Center for the First Amendment, believes the court will strike down the CDA, but that doesn't mean the Net will be free of legal wrangling. "We're going to clearly see more cases in respects to libel, intellectual property, and invasion of privacy involving the Internet. This isn't going to solve the problem completely, but it's an important case."

Predictions for 1997
"I do think the Supreme Court will uphold the Philadelphia court's decision on the grounds of overbroad language. What is likely to happen is that the people supporting this law will go back to Congress and try to narrow the language and pass it again. Don't expect the Supreme Court to say anything that is going to affect the state indecency laws. The civil liberties groups that have taken the leadership on this issue have cast it as if it were a referendum on the life or death of free speech on the Internet. In my view, it's really only an initial skirmish."
--Lance Rose, Arizona attorney and author of the NetLaw legal guide for online service providers.

"I think the court will find that the CDA is unconstitutional. The statue contains language like 'obscenity' and 'indecent,' which courts have a difficult time defining. The language is too broad, and because it's too broad it violates the First Amendment. I don't think a decision against the CDA will then open the flood gates for pornography on the Net. I think it will put more power into the hands of parents, which is where this sort of regulation of content should be, rather than in the [hands of] government."
--Raneta Lawson, associate professor of law at Creighton University School of Law

"My view is that the CDA will be upheld. If it is not, it will be revised and relegislated until it is upheld, just as its predecessor statute was on phone sex. I also believe that very little will change regardless of whether the law is upheld or struck down. There is very little restriction now on what is on the Internet, meaning that porn is freely available. Even if the statute is upheld, however, it will not be difficult to comply, and there will not be more than a handful of prosecutions, if any."
--Danny Adams, head of the telecom group at international law firm Kelley Drye & Warren

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