An Indecent Proposal

FOR THE PAST FEW WEEKS, THREE FEDERAL judges in Philadelphia have been taking a cram course on the Internet. Now they must use their newfound knowledge to decide on this question: will online publishers, artists and just plain citizens be able to speak freely, or will all electronic discourse be limited to what children should be permitted to hear? It all hinges on the constitutionality of the Communications Decency Act, the portion of last year's sprawling telecom bill that criminalizes certain expression in the online world. If someone "makes available" to a minor any words or images judged "indecent," he or she can be fined $100,000 and sent to jail. On Friday, May 10, the judges heard closing arguments from those challenging the law and its government defenders. (No matter what the judges rule, the loser will appeal to the Supreme Court.) Under their relentless questioning, the law was exposed for what it was -- a sweeping, ham-handed swipe at the First Amendment.

Chief Judge Dolores Sloviter summed up the day's theme when she said, "I was taught in law school that people are entitled to know what it is they may be prosecuted for." This doesn't appear to be the case with the CDA. No one knows what "indecent" really means. If you consider, as Congress did, the (in)famous FCC ruling against George Carlin's "seven dirty words" monologue, you might conclude that uttering a single expletive might run you afoul of this law. The FCC, of course, was setting a standard for broadcasting; the Internet is more like a newsstand or library, where expression is less restrained. Judge Stewart Dalzell asked one government witness what he would advise Vanity Fair if it wanted to run an online version of its classic cover of a pregnant Demi Moore. Answer: no guarantee that Si Newhouse wouldn't be fitted for prison stripes. Dalzell seemed troubled by this: "What is it about this medium -- the most democratic of mediums that the human mind has come up with yet -- that makes it different from print in terms of the constitutional protection it should receive?"

The second problem dealt with the issue of "safe harbor." On the Internet, if information is available, young people can get to it -- unless parents themselves take the initiative to monitor or block it. (The idea of actually letting parents decide what children should see is foreign to the authors of the CDA.) Given this, how can adults possibly engage in grown-up forms of expression without violating the CDA? The government insists that one day soon, there will be some sort of high-tech rating and blocking system that all publishers and speakers can use to show that their expression was not available to minors. The judges testily noted that such a system does not exist, and may never exist. Those addressing adults can make a good-faith attempt to warn minors away, but it may do no good.

A development outside the courtroom earlier that week demonstrated that very point. Patrick Trueman, an official of the conservative American Family Association, didn't like Playboy-like pictures posted in an area of the CompuServe online service. So he complained to Terry Lord, a Justice Department official. Lord commended Trueman for the tip and referred the information to the FBI for review. Trueman immediately issued a press release about the "computer porn investigation." Result: a headline in the Columbus Dispatch reading, FBI LAUNCHES COMPUSERVE PROBE. All of this occurred despite two factors that should have protected CompuServe. First, the area was protected from minors by both a warning and a parent-controlled blocking option. Second, the government had agreed that, until the court case was settled, it would not enforce the CDA.

This boggled the judges' minds. Here was CompuServe, doing all it could to block its nudie, yet indisputably legal, sites to minors -- and it still suffered. (The FBI quickly reported that it had completed its "review" and dropped the case. But as Judge Dalzell angrily noted, severe damage had been done to the service's reputation.) What would be in store if the law was upheld, and any federal prosecutor was free to indict any citizen under this law? The government lawyers had no coherent answer to such queries. Instead, they almost begged the judges to creatively interpret the bill in a manner that might be consistent with the Bill of Rights. The CDA itself offers no clue how this might be done: more concerned with posturing themselves against pornography and bad language, the legislators failed to present a clear picture of how the bill might be enforced.

But the CompuServe incident gives us an idea. Speech on the Internet may well proceed as usual, with spirited expletives, bawdy discussions and frank talk of sexual issues abounding. But if a self-appointed censorship group, business competitor or political opponent finds that you used a nasty word, they can report you. (Or a zealous prosecutor may take the initiative unasked.) You may then be "reviewed" by the FBI. This might make the news, or land you in court. Even if it turns out that you are guilty of no crime, the expense and shame of being an FBI target could be devastating. Certainly it would be enough to give you ample, chilling pause before you expressed yourself online. Judge Sloviter had the question right: "How can we, as a matter of judicial responsibility, sustain against that chill?"

Overall, the fusillade of questions from the bench made the CDA look like a piece of Swiss cheese. In effect the judges took their high-tech orals -- and aced them. No matter how they ultimately rule, it is clear that this judicial panel has approached the Internet, and the First Amendment, with a sense of responsibility and patriotism. What a contrast to Congress, who blithely tried to snatch free speech from cyberspace.

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