March 23, 1996

Day 2 in Federal Court:
Smut on the Internet

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    A school child who was studying Louisa May Alcott's classic novel and signed on to the Internet to conduct a search based on the words "little" and "women" could suddenly be presented with directions to a Web site boasting "hot pictures of naked women."

    That was the point driven home by Justice Department lawyers on Friday in the second day of hearings in Federal court to determine whether the Communications Decency Act, a new law designed to protect children from smut in cyberspace, trespasses on First Amendment rights of free speech.

    Jason R. Baron, a Justice Department lawyer, was questioning Donna L. Hoffman, a Vanderbilt University managment professor and expert on business and the Internet, about her belief that the World Wide Web is a significantly different form of communication from radio and broadcast television. The point is important, because the Government is generally allowed greater control over broadcast speech than it can exercise over other media, like print.

    In a affidavit to the court, Hoffman had stated that one important difference between the Web and broadcast media was that on the Web "individuals must seek out the information they want to consume."

    "Individuals do not passively receive information, nor does the information suddenly appear, surprising them," Hoffman had written.

    But Baron produced a copy of a page that had appeared on a computer terminal recently after Infoseek, an Internet search guide, had been used to conduct a search based on the keywords "little" and "women."

    Numerous entries appeared, but fifth on the list was the description of the "naked women" site.

    "Isn't it possible a child might be surprised in stumbling across that entry?" Baron asked.

    "It's possible," Hoffman answered.

    Hoffman added that using "little" and "women" alone without adding other clues, like Alcott's name, was an over-broad way to conduct a search, because it was sure to call up a raft of material that did not pertain to the book assignment.

    But two of the three judges hearing testimony -- Stewart Dalzell of District Court and Dolores K. Sloviter, who sits on the United States Court of Appeals for the Third Circuit -- jumped in to say that a child who was inexperienced with the Internet might well conduct inexpert searches.

    The third member of the panel is Judge Ronald L. Buckwalter of District Court, who last month issued a temporary restraining order blocking prosecution under portions of the law until the panel could rule on a request for a preliminary injunction.

    Anticipating constitutional challenges, Congress defined the unusual structure of the panel as part of the law itself, to guarantee swift review. Most observers expect that the case will ultimately be decided by the Supreme Court.

    The hearings, which will resume on April 1, are part of a case filed last month by the American Civil Liberties Union and a wide array of groups ranging from the American Library Association to Prodigy Services Company. Among other things, the new law bans "patently offensive" material transmitted by interactive computer services to sites where it is known that young people could receive it.

    However, Robert B. Croneberger, the director of the Carnegie Library in Pittsburgh, Pa., told the judges that controls of the sort envisioned by the new Communications Decency Act would severely undercut free expression.

    In his declaration to the court, Croneberger wrote that he and his staff had estimated that it would cost the library $4.7 million a year to devise and maintain a system to prevent minors from obtaining adult material from the computer services offered by the library. The library's operating budget this year is about $16 million.

    As an example of some the complications involved in complying with the law, Croneberger pointed to the question of whether the library's on-line card catalog, which contains two million listings, would have to be reviewed and rated. The reason for the question, he noted, is that the catalog includes some entries that might well be considered offensive.

    One example he offered was the entry for Erica Jong's book The Devil At Large, which includes a chapter title that contains explicit sexual slang terms.

    In an appearance before the court on Friday, Croneberger told the judges that the library's policy has been to allow children access to any part of its resources, whether physical or virtual. In a community with a wide range people from many walks of life, religions and backgrounds, he said, decisions about what is appropriate for children are best left to parents.

    "If we as librarians are put into the position of having to make that decision for other people's children, we will fail miserably," Croneberger said.

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