cj#689> CDA Overturned – Free Speech Victory! (fwds)


Richard Moore

Dear cj,

It seems that one of the bricks in the wall threatening to isolate
cyberspace from democratic use has been removed - the immediate threat of
over-broad, direct government censorship.  As many have noted, CDA
threatened to do much more than prohibit indecent speech.  Because of the
openness of many Internet forums (eg- bulletin boards, unmoderated lists),
CDA might have severely restricted the modalities of Internet usage - as
ISPs were forced to protect themselves from liability.

Whether the secondary threat still exists is not clear.  With obscenity and
child pornography (and bomb-making recipes) still prohibited (which, by the
way, I'm not complaining about here), there might still be an unfortunate
knock-on chilling effect.  But the attitude expressed by the Court in its
decision seems promising in this regard.  Perhaps someone can enlighten us
on this point.

This is not, however, any kind of final victory for a democratically
progressive cyberspace future - there are other bricks-in-the-wall whose
threats have not gone away, including over-broad copyrights, laissez-faire
pricing policies, and a general trend toward over-commercialization and
privatized monopoly control.

There are four postings on the CDA overturn below.  I've done my best to
put them in order-of-interest to aid your reading-time budget.  Note that
CPSR, cj's host organization, has been in the forefront of the anti-CDA
campaign.  The last posting is from Joe Shea, who has been the subject of
discussion on cj in the past - ironically concerning what appeared to be
heavy-handed censorship/ defamation of Parveez Syed.


Date: Thu, 26 Jun 1997
From: Susan Evoy <•••@••.•••>
To: "Multiple recipients of list •••@••.•••"

For Immediate Release                                   For more information:
                                                        Duff Axsom at CPSR

Palo Alto, CA--First Amendment rights in cyberspace won a resounding
victory today in the Supreme Court when the Communications Decency Act was
declared unconstitutional. Civil liberties advocates hailed the decision as
a clear extension of basic rights to communication on the Internet. "The
Court has verified that our basic rights of free expression apply in
cyberspace and to the vast Internet community" according to Aki Namioka,
President of Computer Professionals for Social Responsibility (CPSR).

In a 7-2 decision, Justice Stevens, speaking for the majority said, "the
medium (Internet), unlike radio, receives full First Amendment protection."
The Court found that the CDA's criminalization of free expression on the
Internet was in violation of First Amendment rights. The CDA's "indecent
transmission" and "patently offensive display" provisions abridge "the
freedom of speech" protected by the First Amendment. The landmark case,
brought by the American Civil Liberties Union, was filed on behalf of CPSR,
EPIC and 17 individuals and organizations that provide public information
via the Internet. The ACLU and the plaintiffs moved quickly because this
telecommunications legislation, CDA, has an immediate impact on the use of
the Internet.

A copy of the Court's decision is available at The Electronic Privacy
Information Center (EPIC) Website:


> --
> Duff Axsom   *   Executive Director
> http://www.cpsr.org/home.html
> Computer Professionals for Social Responsibility
> P.O. Box 717  *  Palo Alto  *  CA *  94302
> Phone: (415) 322-3778    *   Fax: (415) 322-4748     *   Email: •••@••.•••

Date: Fri, 27 Jun 1997
From: "Craig A. Johnson" <•••@••.•••>
To: "Multiple recipients of list •••@••.•••"
Subject: White House statement on CDA decision

I respectfully recommend that CPSR take the President up on his offer
to "industry leaders and groups representing teachers, parents and
librarians" to "develop a solution for the Internet (sic). . . "

CPSR has a boatload of activists and board members who could help
the White House see the light, now that the scales of justice have
tilted decisively in favor of free speech (and hopefully the other
type of scales have dropped from the eyes of some our policymakers
and legislaators).



                            THE WHITE HOUSE

                           Office of the Press Secretary

                                 June 26, 1996

                     STATEMENT BY THE PRESIDENT

Today, the Supreme Court ruled that portions of the Communications
Decency Act addressing indecency are not constitutional. We will study
its opinion closely.

The administration remains firmly committed to the provisions -- both
in the CDA and elsewhere in the criminal code -- that prohibit the
transmission of obscenity over the Internet and via other media.
Similarly, we remain committed to vigorous enforcement of federal
prohibitions against transmission of child pornography over the
Internet, and another prohibition that makes criminal the use of the
Internet by pedophiles to entice children to engage in sexual

The Internet is an incredibly powerful medium for freedom of speech
and freedom of expression that should be protected. It is the biggest
change in human communications since the printing press, and is being
used to educate our children, promote electronic commerce, provide
valuable health care information, and allow citizens to keep in touch
with their government. But there is material on the Internet that is
clearly inappropriate for children. As a parent, I understand the
concerns that parents have about their children accessing
inappropriate material.

If we are to make the Internet a powerful resource for learning, we
must give parents and teachers the tools they need to make the
Internet safe for children.

Therefore, in the coming days, I will convene industry leaders and
groups representing teachers, parents and librarians. We can and must
develop a solution for the Internet that is as powerful for the
computer as the v-chip will be for the television, and that protects
children in ways that are consistent with America's free speech
values. With the right technology and rating systems - we can help
ensure that our children don't end up in the red light districts of

Date: Thu, 26 Jun 1997
Precedence: bulk
From: "Neal J. Friedman" <•••@••.•••>
To: Multiple recipients of list <•••@••.•••>
Subject: CDA Struck Down

        In one of its most important First Amendment decisions ever, the
Supreme Court struck down the Communications Decency Act (CDA) Congress
enacted as part of the Telecommunications Act of 1996.  Justice Sandra
Day O'Connor, joined by Chief Justice William Rehnquist, concurred in
part and dissented in part.  The CDA would have prohibited the
transmission of obscene or indecent speech on the Internet to persons
under 18.  The Court rejected each of the government's arguments in
support of the law and left intact only the provision banning obscene
speech and child pornography.  Obscene speech and pornography, unlike
indecent speech, are not constitutionally protected.

        The Court found the CDA's definition of indecency unconstitutionally
vague and was clearly concerned about the criminal penalties in the
statute.  Justice John Paul Stevens wrote that a parent who allowed a
17-year-old to use the family computer to obtain information on the
Internet that, in her parental judgment, was appropriate could face a
lengthy prison term.  Or, a parent sending birth control information to
a 17-year-old child at college could be incarcerated "even though
neither he, his child nor anyone in their community found the material
'indecent' or 'patently offensive,' if the college town's community
thought otherwise."  Justice Stevens wrote that the CDA cast a "dark
shadow" over free speech and "threatens to torch a large segment of the
Internet community."

        Fears that the justices would not understand or appreciate the
technology of the Internet proved unfounded.  Both at oral argument and
in the decision, it was clear that the justices and/or their clerks
fully understand the workings of the Internet.  The first part of the
decision is devoted to a lucid description of the Internet and its
various components and how they encourage dissemination of ideas:
"Through the use of chat rooms, any person with a phone line can become
a town crier with a voice that resonates farther than it could from any
soapbox. Through the use of Web pages, mail exploders, and newsgroups,
the same individual can become a pamphleteer."

        The Court's decision systematically rejected each argument the
government had advanced in support of the CDA.  The government had
relied heavily on the "seven dirty words" case (FCC v. Pacifica
Foundation).  The Court noted that Pacifica was the product of
regulation by the FCC, which had a long experience with regulating radio
stations and targeted a specific broadcast that represented a departure
from traditional program content. By contrast, the CDA's "broad
categorical prohibitions are not limited to particular times and are not
dependent on evaluation by an agency familiar with the unique
characteristics of the Internet."  The Court also noted that, unlike
broadcasting, which has a history of limited First Amendment rights,
there is no comparable history with regard to the Internet and no agency
with experience in regulating the Internet.  It also found that the
Internet is not as invasive as broadcasting and that users seldom come
across material they may find offensive by accident.  The "spectrum
scarcity" argument used to support regulation of broadcasting that would
otherwise not pass muster under the First Amendment is not present on
the Internet, which affords "relatively unlimited, low-cost capacity for
communication of all kinds."

        The vagueness of the CDA gave the Court special concern. It found no
definition of the terms "indecent" or "patently offensive" in the CDA;
therefore the statute provides no guidance to speakers as to what
language would be acceptable.  That vagueness, the Court said, has an
"obvious chilling effect on free speech" and, when coupled with the
criminal penalties, "it unquestionably silences some speakers whose
messages would be entitled to constitutional protection."

        The Court's decision appears to close the door to further attempts by
Congress to ban indecent speech on the Internet.  Language in the
decision stating that no government agency has experience in regulating
the Internet could be an invitation to Congress to grant the FCC or some
other agency regulatory authority.  The Clinton administration has said
it does not favor regulation of the Internet and appeared to back away
from support of the CDA.

        Even before it was announced, the CDA decision was being considered as
one of the most important First Amendment cases in history.  Certainly,
no recent decision of the Court can be said to cover as broad a range of
speech and speakers.  It is a major victory for those concerned that the
government might rein in free speech on the Internet and an equally
large defeat for those who sought to control the easy availability of
speech they consider offensive.

        The full text of the Court's decision is available on the Pepper &
Corazzini Web site at: http://www.commlaw.com/pepper/Memos/cda.html.

Neal J. Friedman
Telecommunications & Computer Law
Pepper & Corazzini, LLP
1776 K Street, N.W.
Washington, D.C. 20006
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Date: Fri, 27 Jun 1997
From: "Craig A. Johnson" <•••@••.•••>
To: "Multiple recipients of list •••@••.•••"
Subject: Joe Shea on CDA Victory

Date:          Thu, 26 Jun 1997
From:          Joe Shea <•••@••.•••>

      June 26, 1997

Dear Readers:

 I am delighted to tell you that the Supreme Court has struck down the
Communications Decency Act in a 7-2 decision -- in which the dissents
are only in part and concur in part -- thus making the High Court's
ruling "virtually unanimous," according to an ACLU press release.

 Shea v Reno played a small but important role [see below] in
turning Justice O'Connor's dissent toward concurrence by having
established that the "gateway" technology does not exist that would
permit the provider of Internet content to mount an effective defense
against the law.

 Thank you for your support of The American Reporter's effort
to achieve this appropriate and conclusive end to Internet censorship.
We can all be proud to celebrate this day.


Joe Shea
The American Reporter

 From Justice Sandra O' Connor's dissent:

Despite this progress, the transformation of cyberspace is not
complete. Although gateway technology has been available on the World
Wide Web for some time now, [id., at 845; Shea v. Reno, 930 F. Supp.
916, 933 934 (SDNY 1996)], it is not available to all Web speakers,
[929 F. Supp., at 845 846,] and is just now becoming technologically
feasible for chat rooms and USENET newsgroups, [Brief for Federal
Parties 37 38]. Gateway technology is not ubiquitous in cyberspace,
and because without it "there is no means of age verification,"
cyberspace still remains largely unzoned [Shea, supra, at 934].
User-based zoning is also in its infancy. For it to be effective, (i)
an agreed-upon code (or "tag") would have to exist; (ii) screening
software or browsers with screening capabilities would have to be able
to recognize the "tag"; and (iii) those programs would have to be
widely available--and widely used--by Internet users. At present, none
of these conditions is true. Screening software "is not in wide use
today" and "only a handful of browsers have screening capabilities."
[Shea, supra, at 945 946]. There is, moreover, no agreed-upon "tag"
for those programs to recognize. [929 F. Supp., at 848; Shea, supra,
at 945].

Although the prospects for the eventual zoning of the Internet appear
promising, I agree with the Court that we must evaluate the
constitutionality of the CDA as it applies to the Internet as it
exists today. [Ante, at 36]. Given the present state of cyberspace, I
agree with the Court that the "display" provision cannot pass muster.
Until gateway technology is available throughout cyberspace, and it is
not in 1997, a speaker cannot be reasonably assured that the speech he
displays will reach only adults because it is impossible to confine
speech to an "adult zone." Thus, the only way for a speaker to avoid
liability under the CDA is to refrain completely from using indecent
speech. But this forced silence impinges on the First Amendment right
of adults to make and obtain this speech and, for all intents and
purposes, "reduce[s] the adult population [on the Internet] to reading
only what is fit for children." [Butler, 352 U. S., at 383]. As a
result, the "display" provision cannot withstand scrutiny. [Accord,
Sable Communications, 492 U. S., at 131; Bolger v. Youngs Drug
Products Corp., 463 U. S., at 73 126 75].


Posted by Richard K. Moore - •••@••.••• - PO Box 26   Wexford, Ireland
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