In a forceful and unanimous June 12 decision, a three-judge federal appeals court granted a preliminary injunction against enforcement of the so-called Communications Decency Act, ruling that—for all practical purposes—it violates the First Amendment for Congress to censor the Internet, at all. The government has promised to appeal.
Ironically enough—given the usual "protect the children" caterwauling that accompanied congressional passage of this abomination—the court found that professional pornographers wouldn't have been much bothered. The credit card checks which such merchants run to make money from their wares would have effectively protected them from the law's provisions.
Instead, the real question here—as the appeals court said loud and clear—was whether the federal government should be allowed to get its nose under the tent with regards to policing what people actually talk about on the Internet, a vision reminiscent of the bottleneck which developed in Soviet long-distance phone service some years back, when the KGB ran short of tape recorders to tape all the calls.
The question, in the end, was whether Internet "providers"—from big outfits like Compuserve and America On Line, to non-profit groups that seek to provide birth control advice or support groups for gay teenagers—should be subject to fines or even imprisonment if they allow material to move through their switchboards which might be found "offensive to local standards" when it eventually reaches some distant mountain hollow below the Cumberland Gap.
One of the reasons this ruling could turn out to be historic is that—after taking exhaustive testimony this spring on what, precisely, the Internet is—the appeals court issued a massive "finding of fact" that the Internet is an interactive medium where "providers" and "listeners" cannot be distinguished, as is the case in television broadcasting, or even newspaper publishing.
The judges also went into exhaustive detail, demonstrating that the dubious rationales for federal regulation of media like radio and television—the need to assign non-overlapping frequencies, to avoid monopoly control of information sources, etc.—don't apply to the Internet.
The court rules that "speech" on the Internet is quite literally that: speech, and subject to the same protection from censorship as a conversation in a public park.
That evidence, and its logical analysis, would have to be engaged and refuted for the Supreme Court to overrule. Of course, the court could always ignore the law in favor of a desired political result, as it has so many times before. But it now becomes that much harder.
Specifically, the court found the government failed to show that any reliable way exists for potential defendants to protect themselves against underaged computer users accessing their chat rooms, news groups, and other forums, forcing virtually all net users to "choose between silence and the risk of prosecution."
Illustrations of non-obscene material likely to be available on the Internet but subject to the CDA's criminal penalties abound, noted Dolores K. Sloviter, Chief Judge of the Court of Appeals for the Third Circuit, from photographs in National Geographic to the script of the Pulitzer Prize-winning play "Angels in America."
Not only would the cure in this case—"government-imposed, content-based speech restrictions"—be worse than the disease, but in fact, here I am hard-pressed even to identify the disease," wrote Judge Sloviter. "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country—and indeed the world—has yet seen.
"The Government...implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles."
If the court were to allow the proposed government censorship to go forward, "The Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely to be judged decent in every community in the country," added District Judge Buckwalter.
"Cutting through the acronyms and argot that littered the hearing testimony," wrote the third judge on the panel, Stewart Dalzell, "the Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through the CDA, interrupt that conversation."
It was a good day for free speech.