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February 16, 1996

Judge Blocks Law on Internet Smut

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    A federal judge temporarily blocked enforcement on Thursday of a new law that makes it a felony to send indecent material over the Internet or other on-line computer services if the material may be seen by children.

    The judge ruled that the term "indecent" was unconstitutionally vague and was not defined in the new law, the Communications Decency Act.

    But, drawing a semantic distinction that appeared to leave both supporters and opponents of the law uncertain of the eventual outcome, Judge Ronald L. Buckwalter of Federal District Court in Philadelphia upheld another part of the same law. That section makes it a felony to use computer networks to display, in a way accessible to minors, material that depicts or describes, "in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

    While the law thus makes clear what "patently offensive" is meant to cover, the problem with the term "indecent," the judge ruled, is that in criminal trials it would "leave reasonable people perplexed in evaluating what is or what is not prohibited in this statute."

    The complex ruling sets the stage for a swift judicial review of the the act, which is part of the broad telecommunications overhaul legislation that President Clinton signed last week. Under a review process spelled out by lawmakers who had anticipated just such a challenge, a three-judge federal panel will now review the constitutionality of the Decency Act, with any subsequent appeals placed on a fast track to the U.S. Supreme Court.

    No schedule has yet been set for the review by the three-judge panel, which will include Buckwalter.

    "Things are a bit more confused now than they were before," said Chris Hansen, senior counsel for the American Civil Liberties Association, which led a coalition of more than a dozen organizations in seeking to block the law. "The effect is that free speech on the Internet is still at risk."

    A spokesman for the Justice Department said on Thursday night that lawyers there would have to study the judge's ruling carefully before making a statement.

    The judge also let stand language in the law that makes it a crime to discuss some aspects of abortion on the Internet and on-line information services, which are used by tens of millions of Americans and millions more abroad. The Justice Department has said, however, that it would not enforce that provision of the new law until the judicial panel reviews the matter.

    The coalition of civil liberties and free speech groups had gone to court moments after the president signed the law last week, seeking a temporary restraining order to block it. They argued that the prohibition against indecent material was unconstitutionally vague and overly broad.

    By granting the part of the temporary restraining order that pertained to indecency, Buckwalter appeared to accept the plaintiffs' arguments that the vagueness of the term could cause damage to the flow of free speech on the Internet.

    But Buckwalter specifically said that his order on Thursday did not change current laws against displaying or transmitting outright obscene material over the Internet. Such display of material to children is already illegal, whether on a computer network or in printed or video form.

    "Obscene" is a term that federal courts, including the Supreme Court, have found to be definable. Obscene material, courts have ruled, is not protected by the Constitution's free-speech provisions.

    In at least temporarily upholding the section of the new law that deals with the display of "patently offensive" material, however, Buckwalter has focused attention on a phrase that has been used in previous court cases without specific definition.

    "The two phrases, indecency and patently offensive, mean the same thing, so in some sense enjoining one and not the other doesn't make a lot of sense," Hansen of the ACLU said.

    A separate challenge to the law, filed in federal court in Brooklyn, N.Y., last Thursday, seeks to invalidate a portion that makes it illegal to conduct on-line discussions of certain issues related to abortion. No decision on that challenge is expected until next month, and the Justice Department has agreed not to enforce the law until a ruling is made.

    A Justice Department spokesman said it was the agency's general policy not to begin prosecutions under a law while it was being challenged in court.

    Supporters of the Communications Decency Act say it is necessary to protect children from access to pornography, obscene speech and other "indecent and filthy" material available on the Internet and other computer networks.

    They note that the government has historically exercised regulatory authority over other communications media, including radio and television, and that it is in the public interest to regulate the Internet and other publicly accessible computer networks.

    But Sen. Patrick J. Leahy, D-Vt., who introduced a bill last Friday to repeal the Communications Decency Act, said the "indecency" aspect of the law would have a chilling effect on free speech.

    "Internet users will have to limit all language used and topics discussed to that appropriate for kindergartners, just in case a minor clicks onto the discussion," Leahy said. "No literary quotes from racy parts of "Catcher in the Rye" or "Ulysses" will be allowed. Certainly on-line discussions of safe sex practices, of birth control methods, and of AIDS prevention methods will be suspect."

    In a 60-page brief filed Wednesday in opposition to the ACLU's request for a restraining order, the Justice Department argued that opponents' concerns about overly broad interpretation and enforcement of the law were merely speculation. The benefits of protecting children from pornographic images and speech on-line was in the public interest, the Justice Department said.

    The act applies not just to individuals but also to computer network operators and information providers who allow the on-line transmission of indecent material without taking precautions to shield that material from minors.

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