The case against the Communications Decency Act

Brave new medium: Opponents fought CDA on First Amendment grounds

(CNN) -- Opponents of the Communications Decency Act maintained the bill was nothing short of censorship -- and an over-broad, vague and unenforceable attempt, at that.

Existing laws, they noted, already ban obscenity, harassment, child pornography and enticing minors into sexual activity.

The CDA duplicated those, the opponents said, and added one problematic point -- its "indecency standard," which creates a separate category of illegal material by defining indecency as that which is "patently offensive" by "contemporary community standards."

"What strikes some people as 'indecent' or 'patently offensive' may look very different to other people in another part of the country," Democratic Sen. Patrick Leahy of Vermont wrote in Roll Call last spring.

Such a vague ban, Leahy said, "may make us feel good, but threatens to drive off the Internet and computer networks an unimaginable amount of valuable political, artistic, scientific, health-related and other speech."

The bill's opponents feared abuse of the law. With such a vague definition of what is actually illegal, prosecutions could vary widely, they say.

"Frankly, I'm not comforted by advocacy groups or even by the government saying, 'Oh, trust us, we promise not to abuse this broad power. We promise only to use it against real bad guys,'" said ACLU attorney Christopher Hansen in an interview on National Public Radio last spring.

The District Court in Philadelphia agreed with those concerns last year, ruling that the CDA violated constitutional guarantees of free speech. The Internet, the court said, is a "never-ending worldwide conversation" deserving of the "highest protection from government interference."

The CDA, opponents argued, is government interference at its highest, stripping parental responsibility in an area where parents can easily demonstrate such responsibility.

"We all share the goal of protecting children," America Online chairman Steve Case told Data Based Advisor last May. "Unfortunately, Congress passed this law without understanding the many technological tools available and under development that empower parents, rather than the government, to determine what their children receive on the Internet."

Between blocking software like Net Nanny and SurfWatch and good old-fashioned parental supervision, the Internet is as safe for minors as books, television and radio, opponents said. But the Internet is different, and the case against the CDA presented to the district court last year was essentially a primer in how the vast network functions.

Opponents objected to the bill's supporters framing the Internet in broadcast media terms -- unlike television, they say, a user must actively seek out information. "Surfing the net" and "channel surfing" are not the same, they argued. The Internet is, Jerry Berman of the Center for Democracy and Technology told Newsday, a "medium unlike any that has come before."

"It is not television or radio or telephone, but a brand new, robust form of publishing that deserves the same First Amendment protections as print," Berman said.

The CDA would have created a chilling effect on free speech on the Internet, civil libertarians who opposed the bill said. Internet service providers would likely have erred on the side of caution and bar any material that might be considered indecent, they argued.

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"What this bill would do would be analogous to telling your mailman that if he delivers a letter with dirty words in it, he'll go to jail."

-- Sheila Kennedy, director of the Indiana Civil Liberties Union, at a meeting of The Indiana Software Association.

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"What this bill would do would be analogous to telling your mailman that if he delivers a letter with dirty words in it, he'll go to jail," said Sheila Kennedy, director of the Indiana Civil Liberties Union, at a meeting of The Indiana Software Association.

And enforcing such a law would be a virtual impossibility, Mark Jacobson, general counsel for the online service provider Prodigy, told CNN.

"If we enforced the law the way it was written, we'd have to have someone in every single chat room, and monitor every single bulletin board, all day long, 24 hours a day, seven days a week, which would have cost us a bloody fortune," Jacobson said.

Leahy and others, like Washington Republican Rep. Rick White, fought the bill.

"I told everybody the standard was unconstitutional," White told National Public Radio.

But the bill passed anyway in what Leahy called a moment of political grandstanding. The CDA, Leahy said, "flouts (the First Amendment) for the sake of political posturing and in the name of protecting our children."

"I believe there was a terribly misguided effort to protect children from what some prosecutors somewhere in this country might consider offensive or indecent online material," Leahy told Congress early last year. "The Communications Decency Act tramples on the free speech rights of all Americans who want to enjoy this medium."

Related sites opposing Communications Decency Act

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