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March 20, 1996

Internet Courtroom Battle Gets Cyberspace Preview

  • Join a Discussion on The Communications Decency Act


    It is the talk of cyberspace, so it was perhaps inevitable that a cyberspace talk show would be created to discuss a landmark legal confrontation taking place this week on free speech, pornography and the world's growing web of computer networks.

    On Wednesday night, on the eve of a federal court hearing in Philadelphia over challenges to the new Communications Decency Act, a diverse panel will use the Internet to debate how to balance First Amendment rights and the need to protect children from on-line pornography.

    The new forum, known as a cybercast, combines verbal jousting, electronic mail from viewers, on-line databases, digital photography, satellite video, electronic speech files and furious typing, all blended together on the Internet service known as the World Wide Web.

    The monthlong hearing that begins Thursday morning in U.S. District Court in Philadelphia is being portrayed by both sides as a crucial step in determining how the First Amendment, crafted in the 18th century, will apply to communications technologies evolving in the 21st century.

    The new Communications Decency Act, signed by President Clinton on Feb. 8, makes it a crime to transmit patently offensive material or to allow it to be transmitted over public computer networks where children might see it. It authorizes the government to restrict on-line speech and conduct, with fines of $250,000 and jail sentences of two years for anyone who makes such material available to children on line.

    Last month, Judge Ronald L. Buckwalter, one of three federal judges who will hear the case in Philadelphia, ruled that language in the law regarding indecent material was unconstitutionally vague. But he upheld parts of the law regulating obscene and patently offensive information. The Justice Department has said it will not investigate or prosecute anyone under the law until the challenges are resolved in court.

    The night before the hearings begin, the electronic talk show, "Encarta on the Record," is expected to offer a preview of the issues at 9 p.m., Eastern time.

    The panelists will be the Rev. Jerry Falwell, founder of the Moral Majority Inc.; Rep. Patricia Schroeder, D-Colo., who opposes the new law's restrictions on abortion-related speech; Donna Rice Hughes, who first gained fame when her relationship with Gary Hart brought down his presidential campaign and who now is a leading antipornography advocate; the former Grateful Dead lyricist John Perry Barlow, and Nadine Strossen of the American Civil Liberties Union.

    A small audience at a New York City cybercafe will be able to watch the physical portion of the event, which will be moderated by the veteran print and broadcast journalist Linda Ellerbee. In a sign of the changing times, Ms. Ellerbee recently went to work for Microsoft Corp., a software company that is emerging as one of the leading news organizations on the Internet.

    The court case also has an unusual format, involving a panel of three federal judges, dozens of plaintiffs, and what is believed to be the first direct use of the Internet in a federal court case, certainly the first in the historic ceremonial courtroom in Philadelphia where many of the country's laws were first debated.

    "It's a peculiar system, whereby nobody testifies directly," said Chris Hansen, the chief lawyer for the American Civil Liberties Union, one of principal plaintiffs seeking to have the Communications Decency Act struck down. "Instead, the testimony is through affidavits. We'll call our first witness and the government will begin its cross-examination immediately."

    Although peculiar, the system is "a justifiable way to speed the process," Hansen said. The plaintiffs will present their case Thursday, Friday and April 1. The government will present its witnesses April 11 and 12, with a rebuttal day April 26. Justice Department lawyers declined to comment Tuesday on their plans for the case.

    The three judges will issue their ruling some time after the conclusion of testimony. Both sides have vowed to appeal any decision to the Supreme Court, a possibility that was foreseen by the legislators who crafted the Decency Act and included a provision for a fast-track judicial review.

    Justice Department lawyers have been taking depositions, or sworn statements, from the plaintiffs' witnesses since Friday. The sessions, in conference rooms at an auxiliary Justice Department building, have been described by participants as long, tedious and at some times contentious.

    At issue in the legal struggle is whether the government can, and should, regulate the flow of information on the global Internet and other computer-based communications networks.

    The government contends that it has a responsibility to regulate the Internet, just as it regulates broadcast media. Supporters say it is necessary to protect children from pornographic and harmful information that can be found on the Internet.

    Critics of the Communications Decency Act say that it is overly broad and unconstitutional, and that it erodes First Amendment protections for the press. They also say the law is unenforceable, and that parents, rather than the government, are best able to determine what children can see on the Internet.

    The plaintiffs include many of the most prominent companies involved with computers and on-line communications, including America Online, Compuserve, Prodigy and MSN, and the Microsoft Network.

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