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Internet indecency law goes to court

Published Oct. 1, 2005

Allison Evans was writing a seventh-grade book report on Little Women when she decided to get on the Internet. But when she typed in "little women" on the computer at her Fairfax, Va., home, on her screen appeared an X-rated entry that promised "Women! Women! Women!"

Allison's response: "Yuck!"

The incident last year reinforced the commitment of her mother, Doris Evans, to try to keep sexually explicit materials off the Internet, the global network connecting millions of home and office computers. Parents such as Evans, who was associated with the organization Enough is Enough, pressed Congress to pass a law making it a crime to send "indecent" or "patently offensive" material to children under 18 through the Internet.

But the legislation, covering material involving sexual or excretory activities or organs in a patently offensive manner and signed into law by President Clinton in February 1996, was immediately challenged as violating adults' First Amendment rights.

Now at the Supreme Court, where it will be argued Wednesday, the challenge to the indecency provision is one of the most important free speech cases in recent decades and could determine the future of the never-ending global conversation that is the Internet.

Parents, members of Congress, civil libertarians, computer users, educators and businesses involved in the online world have a huge stake in whether the Communications Decency Act survives.

A special three-judge panel that first heard the case ruled that the standards of the law were unconstitutionally vague. The court said Congress had wrongly criminalized _ with penalties of two years in prison or a $250,000 fine _ the activities of people who would have no way of knowing the age of anyone who would retrieve posted information.

The case of Reno v. American Civil Liberties Union marks the first occasion for the high court to review restrictions on cyberspace technology. The justices' decision will set the standard for future constraints and censorship by federal or state governments, both of which have been concerned with the proliferation of sexual materials on the Internet.

The Justice Department, defending the act, argues that just as people cannot provide minors with indecent pictures in bookstores, they should be barred from doing so on the Internet.

Government lawyers contend that if parents fear their children will find sexually explicit materials on the Internet, they will not allow them to use this unparalleled educational tool.

But the ACLU, the American Library Association and other challengers counter that the law not only stops adults from getting information that is constitutionally permitted, the act is ineffective for keeping out indecent pictures because as much as 40 percent of the information on the Internet is posted overseas. They also note that using the Internet requires several steps to find various materials, sexually explicit or not.

"If the government prevails in this case, it will destroy the Internet as we know it," said Jerry Berman, executive director of the Center for Democracy and Technology and a coordinator for dozens of civil liberties, information and computer organizations that have joined in the lawsuit.

For the justices, this is one of the toughest cases of the term. Not only will it require them to deal with the difficult balance of free speech rights and protecting children from "indecency," it will force them to become familiar with an emerging technology.

Still, even an Internet novice can with a few clicks of a mouse realize the vast wealth of information on the network, including the availability of sexually explicit images _ from vulgar cartoons to hard-core pictures of human bondage and torture. Such pictures typically are preceded by warnings that what follows should be viewed by persons over 18. To many younger teens, that sort of a warning only increases their interest.

"Thirteen-year-old kids are going to find this stuff (in cyberspace) and look at it out of curiosity," said Steve Goss of Tucson. Goss, an engineer who often uses the Internet for work, said he does not want his two young sons to have access to some of the hard-core pornography that can be found. "How do you explain to your kid bestiality?" he said.

The groups challenging the law argue that the best way for parents to deal with the raunchiest material on the Internet is to monitor a child's computer use or to buy readily available software that blocks sexually explicit postings.

Bruce Ennis, a lawyer for the American Library Association who will represent the challengers to the law in oral arguments, said such blockers would be more effective than government in protecting children because they would screen out foreign pornography, too.

The three-judge panel that first reviewed the law ruled unanimously that it unconstitutionally curtails the right of adults to send sexually explicit material to other adults.

District Court Judge Ronald Buckwalter, who sat on the panel, focused on problems with the definition of "indecency," noting that a Justice Department lawyer during the lower court hearing "could not respond to numerous questions . . . regarding whether, for example, artistic photographs of a nude man with an erect penis, depictions of Indian statues portraying different methods of copulation, or the transcript of a scene from a contemporary play about AIDS could be considered "indecent' under the act."

Finally, District Court Judge Stewart Dalzell concluded that "the Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through the CDA, interrupt that conversation."

Still, while adults have a First Amendment right to engage in indecent speech, the Supreme Court has allowed government to limit it _ for example, restricting it to certain time slots _ on the radio, television, cable and in "dial-a-porn" services. (Obscene material, unlike indecency, gets no First Amendment protection.)

In the government's written briefs, Solicitor General Walter Dellinger said all "indecent" materials would be considered in their context, so art or educational materials would not be criminalized.