Purging Porn Vs. Free Speech On the Internet

Parents and travelers in cyberspace are bracing for what may be the most important Supreme Court case of the year. The subject: pornography on the Internet.

It is a blockbuster case that pits Washington and parents groups trying to shield kids from porn against dozens of civil liberties and Internet publishing groups, which see a new law as both clumsy and the biggest threat to free speech in the past 40 years. At issue is whether Congress went too far in making it a crime to disseminate "indecent" material on the Net without a way to keep it from the eyes of minors.

Tomorrow's case is significant not only because it could reinstate sweeping censorship standards dating to the 1950s, but because it deals with a new and nearly unregulated medium, cyberspace. Will the high court give the Net full First Amendment protection, wonder legal experts, or will it be treated like television and radio, where some "indecent" speech is restricted?

"This is the most important free speech case since the Pentagon Papers era in the early 1970s," says Scot Powe, a legal scholar at the University of Texas in Austin. "The government is making a stunning claim for censorship based on a statute that itself is incredibly broad."

That statute is the Communications Decency Act (CDA), passed in 1996 but declared unconstitutional last June by a Pennsylvania federal court. The Clinton administration's Justice Department challenged that ruling in Reno v. ACLU.

CDA would make it a crime to transmit sexually explicit material to persons under 18 - whether or not the publisher knows the age of those who read the material. Yet, unlike print or broadcast media that follow state or federal laws, the Internet is still unregulated and, as Web mavens say, "radically decentralized."

Hence, potential violators of the CDA are not just commercial pornographers, but any of thousands of individuals ranging from AIDS-awareness groups to artists posting materials that could fall under a definition of indecency that is itself described as "vague" by the lower federal court. (One federal expert in the lower court described a recent Vanity Fair magazine cover of pregnant actress Demi Moore as an example of indecency that could be punished by time in jail.)

Congress voted for CDA last year without hearings, responding to political pressure and the startlingly easy availability of hard-core porn on the Net. Experts point out that in about 10 minutes a child with average computer skills can download some 500 explicit images from the Net.

Yet lawyers for the American Civil Liberty Union, backed by high-profile groups such as Electronic Frontiers Foundation, will argue that the decency act will set harmful precedents for free speech and the freedom of the Internet.

"The future of the Internet is at stake," says Jerry Burman of the Center for Democracy and Technology in Washington. "The issue is whether we are going to have a global and decentralized medium open to many speakers, or whether we will chill speech and change the structure of the Net."

"We are for child pornography laws, and laws governing indecency," says Hilary Rosen, a lawyer and president of the Recording Industry Association of America. "But Congress ignored opportunities to make distinctions. If the concern is for parents to protect kids, then do that. But don't pass a law that will criminalize, say, a violent opera."

Yet government lawyers and a number of scholars say the apocalyptic tones often assumed by guardians of the Net are not warranted. The Justice Department now says it plans to prosecute only commercial purveyors of porn, most of which have already begun to demand proof of age on the Net. US Solicitor General Walter Dellinger also argues that, in the past year, new technology allows for relatively simple and "unburdensome" ways to check the age of persons desiring access to cyber fleshpots.

Moreover, it is not unreasonable for the government to use the same standard for restricting speech in cyberspace that it does in real space, argues University of Chicago legal scholar Lawrence Lessig, an expert on speech and technology. Communities regularly pass zoning laws in which pornography can only be sold to adults in certain parts of town, Dr. Lessig notes, adding that "zoning porn into one part of cyberspace may not prove burdensome."

Currently, laws restricting speech fall into three categories: speech that everyone has a right to hear; speech that is "obscene" and no one has a right to; speech that is "indecent" but that adults over 18 have rights to - known as Ginsberg speech after a famous case in 1968. Those under age 18 may find ways around Ginsberg speech laws, getting adults to purchase porn for them just as they can sometimes illegally procure liquor.

The trick for Justice Department lawyers, experts say, will be to narrow the definition of speech in this case to Ginsberg speech, by which cyberspace zoning laws will not be unconstitutional.

Still, the broad decency laws in the CDA may make such a task impossible. In cyberspace, unlike in print and broadcast media, everyone, in a sense, is a broadcaster - and almost no one has access to a lawyer to say what is and isn't decent by the open-ended language of "community standards" in the CDA. What is decent in New York may not be decent in Arkansas - and in cyberspace, the two places meet instantaneously.

Moreover, decency laws covering speech in the US would not cover some 40 percent of the pornography available on the Net from sources overseas.

Since the Rehnquist Supreme Court has generally upheld free-speech laws, some legal experts expect the court to strike down the CDA. But it is also sensitive to pornography concerns. Yesterday the justices let stand a California law that bans selling erotic publications from coin-operated news racks on public streets.