Censorship in Cyberspace

Published: April 30, 1996

Congress acted without thinking when it decided three months ago to censor the growing web of

computer networks in the name of protecting children. It held no hearings and made no effort to

learn how the Internet actually works. Had it done so, it would have discovered that the

Communications Decency Act was an unconstitutional and wholly unnecessary infringement on

free speech.

Not surprisingly, the law was quickly challenged. A panel of three Federal judges will soon hear

closing arguments. It is a landmark case that will help determine how the First Amendment, an

18th-century creation, will apply to the communication technologies of the 21st century.

However it rules, the panel has been far better informed about these technologies than Congress

was.

The case was brought by the American Civil Liberties Union and a coalition including the

American Library Association, journalism and publishing groups and on-line service companies.

The law makes it a felony to knowingly transmit indecent or patently offensive sexual material

over networks where children may see it.

In February, one of the three judges issued a preliminary ruling that the provision barring

indecent material was unconstitutionally vague. But the judge declined to rule against other

portions of the law that also impose standards of speech on the Internet and other computer-

based communications networks more restrictive than those imposed on books, newspapers or

other printed material. Should these provisions survive, there is concern that libraries could face

criminal sanctions for making their collections available on-line, and that the reporting of news

stories could at some future time be chilled as newspapers and magazines increasingly offer on-

line versions.

That would be a ridiculous outcome. There is simply no legal or practical justification for this

dichotomy, which would have the effect of reducing the otherwise lawful material available on

the Internet to a level judged appropriate for children, something the Supreme Court has already

said should not be done.

At hearings just concluded in Philadelphia, the judges were given a crash course on how the

Internet actually works. They learned that while on radio and television children can stumble

across inappropriately explicit material simply by turning the set on, computer users must

actively seek out the material they want to view. The judges were also given a demonstration of

readily available -- and rapidly improving -- software that parents can now use to block

transmissions they do not want their children to see. That is a far better solution, practically and

constitutionally, than punishing those who transmit explicit material.

The critical task now for the newly educated three-judge panel is to recognize the large threat to

free speech the statute poses, and to develop an approach to speech on the Internet that gives

maximum room for the free exchange of ideas.