Beyond the Communications Decency Act

State legislatures push policing the Internet

(CNN) -- By the time the Supreme Court had agreed to take on the issue of decency in cyberspace in March, more than 20 state legislatures had already fashioned their own legislation to regulate Internet speech. These measures -- which face legal challenges -- will help shape the future of free expression.

• A new Georgia law bars online users from using pseudonyms or communicating anonymously over the Internet. It also puts restrictions on the use of trademarked logos as links to other Web sites. A first-time offender faces up to 12 months in jail and/or a $1,000 fine.

• In New York, a law makes it a crime to disseminate "indecent" materials that are "harmful to minors" through any computer communications network.

The two laws are case studies of Internet legislation spreading nationwide as lawmakers seek to tame the unfettered realm of cyberspace. Since March 1995, more than 20 states have enacted, or considered enacting, some form of Internet regulation. Each bill is crafted -- in one form or another -- to protect society, especially children, from sexually graphic material.

"Patently offensive material is widely disseminated on the Internet, and computer-literate children ... can easily find and retrieve it," the Justice Department's Walter Dellinger said.

But opponents of the measures contend the legislation is far too sweeping, and is unconstitutional. They also are quick to point out that lawmakers and prosecutors have only a vague idea of what the Internet is.

"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," Sen. Patrick Leahy, a Vermont Democrat, said.

ACLU: States cannot regulate Web

The American Civil Liberties Union, along with a host of plaintiffs, is challenging the Georgia and New York laws. It also has filed suit in Virginia, and is considering challenges to legislation passed in Florida and California, among others.

One of the ACLU's main contentions: states cannot regulate speech over the Internet, a global system. For example, the posting of a message in Iowa should not subject the author to prosecution in states like Georgia and New York, where Internet speech laws exist.

The Georgia law is the first state Internet censorship statute to be challenged. The ACLU does not object to the laws' intent of protecting children from sexual predators, but the group asserts that the law is unequivocal.

According to the group's complaint, filed on September 24, 1996, the law makes it a crime to use a name that "falsely identifies" an online user, without distinguishing whether the person had deceived intentionally or simply had used a pseudonym to protect privacy.

At the court hearing in Georgia, a witness conducted a tour of the Internet for the judge, marking only the third time an online tour has been used in a case challenging Internet censorship.

The ACLU hopes to use the tactic at other state hearings to better educate judges of the Internet.

"When courts are called upon to decide the rules for what one judge called 'the most participatory form of mass speech yet developed,' it is especially important that they formulate a clear understanding of the nature of that medium," Christopher Hansen, an ACLU national staff attorney, said in a statement.

The ACLU has also argued the New York statute is unconstitutional on First Amendment grounds. Like the Communications Decency Act, the New York law fails to define "indecent," the ACLU contends. Such a vague definition, the ACLU says, leaves enforcement of the law up to the subjectivity of authorities. Under the law, a librarian who allows a minor to look at "harmful" material has committed a Class D felony, punishable by up to four years in prison.

"It is sad that the state of New York ... has passed a law that could send a person to prison for up to four years for talking about safer sex, or displaying online classic nudes or other artistic images," said Normal Siegel, executive director of the New York ACLU, in a January news conference.

Supporters of the New York bill say they are simply trying to slow down a new technology that has barreled into the cyber stratosphere without any rules or regulations, where sexual predators have lured children into face-to-face meetings.

"There have been several cases where minors have been lured on the Internet by adults," state legislator RoAnn Destito, a Democrat who introduced the New York measure, told The New York Times. "Basically, these perverts are moving from the playground to the Internet."

New tactic: Blocking software

Rather than passing criminal statutes, some states are considering laws that require public libraries and schools to install blocking software in computers, to prevent minors from viewing adult-oriented sites.

However, even that could face a legal challenge.

"There are considerable First Amendment issues involved in such a move," says ACLU staff attorney Ann Beeson.

What's clear, most experts agree, is that the battle over what's decent and what's indecent in cyberspace does not end with the Supreme Court's CDA ruling.

As the Internet becomes a major communications outlet, attempts to regulate the online environment are just beginning.

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