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March 21, 1996

The Philadelphia Hearings:
Free Speech v. Child Protection


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    By PAMELA MENDELS
    To hear free speech advocates tell it, the recently enacted Communications Decency Act represents a massive assault on the First Amendment -- specifically on the potential for the free exchange of ideas in cyberspace, an arena never imagined by the framers of the Constitution.

    Anti-pornography advocates see things differently. They say the law is a reasonable and necessary means of protecting children from the proliferation of smut on a dangerously unpoliced medium where everything from soft-core erotic images to graphic scenes of bestiality to the solicitations of pedophiles may be no more than a mouse click away.

    On Thursday, in what is expected to be a packed room in a Philadelphia courthouse not far from the Liberty Bell, three Federal judges will begin the process of deciding who is right.

    The one issue they will find both sides agreeing on is the importance of the case, which most legal observers predict will ultimately land in the Supreme Court.

    "This is the first major case that will establish the rules to be applied in this new communications environment, one that is exploding and sure to be used more widely in the future," Chris Hansen, senior staff counsel for the American Civil Liberties Union and one of the lead lawyers fighting the new law, said earlier this week.

    The ACLU is one of a number of groups and businesses -- from the American Library Association to Stop Prisoner Rape to Prodigy Services Company -- that have filed suit seeking to block the act, which was part of the telecommunications law overwhelmingly passed by Congress and signed by President Clinton last month.

    Among other things, the decency portion of the law bans the use of an "interactive computer service" to transmit "patently offensive" materials to areas where it is known that those under 18 years of age could view it. Another part of the law bars the use of a "telecommunications device," referring to gadgets like fax machines -- but, some would argue, also computer modems -- to send "indecent" material to young people.

    Violators face fines of up to $250,000 and prison terms of up to two years.

    Opponents of the measure say that children can easily be shielded from objectionable material through a Constitutional means: the use by parents of screening software that blocks access to parts of the Internet they find objectionable.

    Those who oppose the law also argue that it is so vague and broad that it would chill on-line access to a vast array of information on non-erotic subjects, ranging from AIDS prevention to human rights violations.

    "Given the ambiguity in the Act, the University of Pennsylvania Libraries risks criminal prosecution for posting academic material directly related, and essential, to courses in abnormal psychology, sexuality, history and literature," argues a brief filed in the case. "The Fort Vancouver Regional Library in Washington State fears prosecution for providing patrons access to full-text articles in such mainstream publications as Cosmopolitan."

    Moreover, opponents of the decency act say, it would be impossible for many content providers, especially nonprofit groups that offer free access to information about subjects like safe sex, to set up a system to detect and exclude minors from viewing potentially objectionable information.

    "It is neither technically nor economically feasible to do cyberzoning," said Hansen. "The bookstore owner can look out over the countertop and say, 'That kid looks 12. I'm not going to sell him the book.' But it doesn't work that way over the Internet, where you have no way to determine a user's age. To comply with the law, you'd have to block your site to everyone."

    Supporters of the measure, which is being defended by lawyers from the Justice Department, say that the law aims at one target -- pornography -- and that opponents are raising red herrings in asserting that it would curtail discussions of legitimate subjects.

    "The clear purpose of the Act is to restrict access by minors to 'patently offensive depictions of sexual or excretory activities' -- that is, to widely available pornographic images and materials on line," argues a Government brief, quoting from language in the law.

    Furthermore, the Government argues, the law's definition of objectionable material is not only clear, but has been applied, with court blessing, to restrictions on indecency in radio, television and telephone sex services.

    The Government also dismisses claims that cyberspace does not lend itself to division into "for-adult-eyes-only" and "minors" sections. Justice Department lawyers declined, through a spokesman, to comment on the case. But in their brief, they argued that there was little evidence so far that credit-card verification or other screening procedures used by phone sex services, for example, could not be adapted to on-line communication.

    One issue that legal experts say is sure to emerge in the case is whether cyberspace is akin to broadcast communications -- and, therefore, subject to the same kind of regulations that limit "dirty words" on radio and network television, but not in print or on cable television.

    Opponents of the decency act say there are crucial differences between on-line and broadcast communication. For example, the Federal Communications Commission's charter is premised on the fact that the airwaves are a limited resource that belong to the public and are therefore subject to regulation. This is not the case, opponents argue, with cyberspace, where there is no scarcity of speech platforms.

    The Government's brief, however, draws strong parallels between on-line and broadcast transmission, asserting that like radio, cyberspace is pervasive and accessible, especially to an increasingly computer-literate younger generation.

    Whichever argument prevails, the case has aroused passions on both sides, with the law's supporters saying the time has come for the Internet to be governed, and opponents saying the regulation demanded by the act amounts to the smothering in its infancy of a promising form of communication.

    "It is our belief that the Internet and electronic communications are going to play an increasingly important role in how we communicate with one another, not only now but on into the 21st century," said Judith Krug, director of the office for intellectual freedom of the Chicago-based American Library Association. "The law either severely limits what we can make available to young people or it means everybody, especially adults, must be limited to that which is appropriate to young people."

    But to the law's supporters, the paramount issue is the protection of children.

    "The Government has an independent duty to protect children, even if parents wouldn't," said Bruce Taylor, president and chief counsel of the Fairfax, Va.-based National Law Center for Children and Families, which strongly supports the law. "That's why we have child abuse laws and child pornography laws.

    "We have laws that require convenience stores to put the Playboys and Hustlers behind counters. We don't just say, 'If you don't want your kids to see this stuff, don't send them into convenience stores.' The same law that applies everywhere else in society has finally caught up to the Internet."


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