Home » About » Newsletters » August 1996
Cyberspace -- or Censored Space?
By Sebastian del Marmol
August 1996
The information superhighway just crossed its first and most dangerous roadblock: the US government.
Four months after President Clinton signed the Telecommunications Act of 1996 on February 8 into law, a three-judge panel in Philadelphia declared (30) provisions in the act that impugn free speech in cyberspace unconstitutional. This measure bill is meant to overhaul the 62 year old web of regulations governing the communications industry to deal with new technological realities, such as the internet.
Hundreds of Internet sights containing critical information, literary material of inestimable value, and private discussions between consenting adultswhose existence had been jeopardizedrejoiced as the federal district court announced its decision to uphold First Amendment freedom of speech rights.
Acting on behalf of 20 individuals and organizations and in conjunction with the Citizens Internet Empowerment Coalition (CIEC), the American Civil Liberties Union headed the team that won its legal challenge against provisions 223(a) and 223(d) of the Communications Decency Act (Title V of the Telecommunications Act). The provisions, that made the transmission of "indecent material" (ruled unconstitutionally vague) illegal, would have resulted in fines and or imprisonmentwhether "netizens" initiated a contraband message or only served as a conduit for it. The Decision
In deciding to support free speech on the Internet, Chief Judge Dolores Sloviter likened Internet communicationWorld Wide Web, USENET groups, email systems etc...to telephone calls. "Internet communication, while unique, is more akin to telephone communication than to broadcasting, because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online," reasoned Chief Judge Sloviter.
With regard to censorship, Chief Judge Sloviter stated, "The benefit gained [by a contentbased restriction] must outweigh the loss of constitutionally protected rights." She concluded that far satisfying the preceding, "at least some of the material subject to coverage under the 'indecent' and 'patently offensive' provisions of the CDA may contain valuable literary , artistic or educational information of value to older minors as well as adults."
"The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA," District Judge Buckwalter stated. Judge Buckwalter's concern not only involved First Amendment violations, but also the Fifth Amendment dueprocess transgressions resulting from the governments vague use of the term "indecent" and "patently offensive."
Christopher Hansen, lead Counsel in the case, praised the court's ruling stating, "the decision reaffirms that, no matter what the medium, the message should be protected by the First and Fifth Amendments."
Marjorie Heins, another member of the ACLU legal team who argued before the court, expounded on the historic importance of case. "For the first time, the court has clearly stated that standards like 'indecency' and 'patently offensive' are impermissibly vague and therefore unacceptable for regulating free speech by a free people."The "Freedom Network"
It was already illegal to send obscene material over the internet when the CDA was passed. Clearly, Congress was targeting a much broader body of expression. Its use of vague standards like "indecent" material made many educational web sites open to prosecution.
After launching its "Freedom Network" World Wide Web sight in February, the National office of the ACLU feared that its web site and online services could be the first to be censored . Many of the ACLU's public education effortson controversial topics ranging from abortion to gay/lesbian rightsbecame criminal violations. In fact, a provision in the act would have made it a crime to electronically transmit or receive information about ways to obtain and/or perform an abortionpunishable by up to five years in jail and a maximum fine of $250,000. This is nothing short but the resurrection of the dormant Comstock Law which more than 80 years ago was used to arrest Margaret Sanger for distributing leaflets on birth control.
Barry Steinhardt, Associate Director of the ACLU, testified as to the technical and economic burden the CDA would have on nonprofit organizations such as the ACLU. The technology to "tag" (identify) prospective net surfers is not yet available and is "inconsistent with the mission and purpose of the ACLU," said Steinhardt.
Other prominent organizations adversely affected by the CDA are Critical Path AIDS Project, Inc.(dedicated to treatment and prevention of AIDS information via free computer bulletin boards, emailing lists and a page on the World Wide Web), the Planned Parenthood Federation of America and Stop Prisoner Rape, Inc. (for a complete list of plaintiffs see sidebar).
Perhaps even more damaging to Internet communications than the obstacles placed in front of nonprofit organizations, is the restrictive effects the CDA would have on individual users and subscribers to the Net. "Nothing could be more damaging to a communications revolution that is empowering millions to freely speak their minds than the fear that the FCC or the FBI may come knocking at your door because you have offended someone or some group."
Individuals such as Rheana Parrenas, who writes and performs original poetry dealing with issues of sexuality and ethnicity (for Youth Arts, another plaintiff, who publishes online youth magazines), would be effectively banned from the Net. "With the C.A., my selfexpression is a crime," said Paranoias.
Today, reasonable estimates of the number of people who can and do access the Internet is 40 million. That figure should grow to 200 million by the year 1999. For now the future of free expression in cyberspace is secure. Ultimately the open and chaotic nature of the Internet assures its independence; however, efforts to censor or otherwise restrict it could do a lot of damage in the short run. District Judge Stewart Dalzell reiterated the importance of ACLU v. Reno best:. "[T]he Internet may fairly be regarded as a neverending worldwide conversation...As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
Sebastian del Marmol is an intern at the ACLU of Florida. He recently graduated from Florida International University with a major in print journalism.
