February 26, 1996

On-Line Services Join Indecency-Law Suit

By Peter H. Lewis

Asserting that the boundaries of free speech in the 21st century are at stake, more than 20 corporate and trade organizations have initiated a major legal challenge to the new Communications Decency Act.

Their civil suit, organized by the American Library Association, America Online and the Center for Democracy and Technology, is expected to be filed Monday in U.S. District Court in Philadelphia. There, it will be consolidated with an earlier suit against the law filed by the American Civil Liberties Union and a dozen other civil rights groups.

The decency law, part of the Telecommunications Act of 1996, makes it a felony to knowingly transmit indecent or patently offensive sexual material over communications networks where children may see it. It was passed overwhelmingly by Congress and signed by President Clinton.

U.S. District Judge Ronald Buckwalter, one of three federal judges who will hear arguments in the consolidated lawsuits beginning March 21, has already ruled that the provision in the new law barring indecent material was unconstitutionally vague.

He declined to strike down other parts of the law, which imposed more restrictive standards of speech on the Internet and other computer-based communications networks than those for books, newspapers or other printed material. The government is expected to argue that speech on the Internet and on-line information services should be regulated just as it regulates what can be broadcast on radio and television.

The Justice Department, which is the respondent in both suits, has agreed not to investigate or prosecute anyone for suspected violation of the law until the three-judge panel issues its ruling, some time after government lawyers present their case on April 11 and 12.

The new plaintiffs include the four largest consumer on-line information networks -- America Online; Compuserve, a unit of H&R Block; Prodigy, jointly owned by IBM and Sears, Roebuck, and MSN, the Microsoft network. Netcom On-Line Communications Services, one of the country's largest Internet access providers, and Microsoft Corp. are also plaintiffs.

Others joining the suit include the American Booksellers Association, the American Society of Newspaper Editors, the Association of American Publishers, the Recording Industry Association of America, the Interactive Services Association, the Society of Professional Journalists and the Citizens' Internet Empowerment Coalition, a diverse group whose members include Americans for Tax Reform and People for the American Way.

"The Internet is the communications medium for the 21st century, and the most important thing that has happened to communications since the printing press," said Judith Krug, director of the American Library Association's Office for Intellectual Freedom.

"Our main argument is that you cannot limit ideas and information to the lowest common denominator, which is what this law does. It is unconstitutional to force adults to limit the information they can see to a level suitable for children."

The library association represents more than 80,000 public libraries, which are increasingly making books and other information available on line. More than a third of the libraries provide citizen access to computers connected to the Internet.

Supporters of the law contend that the government has an obligation to protect children from pornography and objectionable forms of information that can be obtained over the Internet, a global network that links millions of computers and tens of millions of people, most of them outside the United States.

Jerry Berman, executive director of the Center for Democracy and Technology, said the focus of the new lawsuit would be to explain the technologies that made the Internet fundamentally different from broadcasting and more like publishing.

"The thrust is to focus the court's attention on what policies should be applied to new media," Berman said. "Congress passed this law without ever once holding a hearing. If the judges don't understand the Internet, they may pick the wrong paradigm, and this case of first impression will decide the limits of free speech for the 21st century."

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