FREE SPEECH FOR THE NET

By JOSHUA QUITTNER

It's been a suspenseful spring in cyberspace. Everyone has felt it, from the folks who gather for online chats at Bianca's Smut Shack to the Netizens who post daily dispatches to the "fight censorship" E-mail list. The whole information revolution was jeopardized, the cybernauts believed, by a primly named federal statute called the Communications Decency Act. Signed into law by President Clinton on Feb. 8, after being passed by an admittedly Net-illiterate Congress, the CDA was supposed to squelch online pornography and make the Net safe for children by banning "indecent" content. But the legislation was so vague and broad that uploading Ulysses to the World Wide Web could have been construed as a felony offense punishable by a $250,000 fine and two years in jail. If that's the kind of treatment James Joyce would get, what hope would there be for poor Bianca and her Smut Shack?

Relief came last week in a landmark ruling that firmly extends the umbrella of the First Amendment over cyberspace. A panel of three federal judges, specially convened in Philadelphia to review the new law, pronounced the government's attempt to regulate online content more closely than print or broadcast media "unconstitutional on its face" and "profoundly repugnant." The Justice Department was enjoined from not only enforcing the act but even investigating alleged malfeasance, at least for now.

The court went further than the most ardent civil libertarians had dreamed. In a striking 175-page memorandum that was published online within minutes of being handed down, the judges declared the Internet a medium of historic importance, a profoundly democratic channel for communication that should be nurtured, not stifled. Because the Net is still in its infancy, the judges said, it deserved at least as much constitutional safekeeping as books and newspapers, if not more. "As the most participatory form of mass speech yet developed," wrote Judge Stewart Dalzell in an eloquently crafted opinion, "the Internet deserves the highest protection from governmental intrusion."

The unanimous ruling was hailed by civil libertarians as a signal moment in the struggle for free speech. "This is as historic a case as we've had in our history of First Amendment fights," said Ira Glasser, executive director of the American Civil Liberties Union, which led the court challenge on behalf of some 50 plaintiffs ranging from the American Library Association to Microsoft. Marc Rotenberg of the Electronic Privacy Information Center called the decision "the Times v. Sullivan of cyberspace," a reference to the 1964 Supreme Court decision that granted broad protection to journalists.

The legal battle is not over yet. The Department of Justice has 20 days to decide whether to ask the Supreme Court to review the case. While a Justice Department spokesman was noncommittal last week, lawyers for the government said from the outset that they would appeal an adverse decision to the highest court. Which is where proponents of the CDA say the case belongs. "We wrote this law based on previous Supreme Court decisions that have a lot of merit, so it will be looked on very carefully," says Senator J. James Exon, who introduced the original bill and believes, despite last week's rebuke, that it will be sustained.

The proponents of the CDA are fueled by outrage that hard-core pornography can be found on a computer network to which children have access. "We're talking about material going into the hands of young people whose lives can be permanently altered," says Mike Russell, spokesman for the Christian Coalition, which campaigned hard to get Congress to do something about it.

But the Philadelphia jurists (two Bush appointees, one Carter) found no indication that children were at particular risk to exposure to smut online--TIME's controversial "cyberporn" cover story last summer notwithstanding. In a kind of Socratic online safari, the judges spent weeks learning their way around the Net. Guided by experts who brought computers and an Internet connection into the courtroom, they searched for online porn and tested software that allows parents to screen out offensive material. They finally concluded that whatever danger was posed for kids by the presence of "indecent" offerings online was best addressed by parents or teachers. Obscenity and child pornography, the judges noted, are already illegal under current statutes.

"There is no evidence that sexually oriented material is the primary type of content on this new medium," they wrote. "Communications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden." The judges found that dicey material--whether from Bianca's Smut Shack or Playboy magazine's hugely popular site--was generally preceded by warnings admonishing those under the age of 18 to keep out. Even the government's own expert witness acknowledged that the odds were slim that a user would come across a sexually explicit site by accident.

The contrast between the court's view of the Net and the impression given by the lawmakers who passed the CDA was striking. The difference, says Bruce Ennis, lead attorney for the plaintiffs, was that the judges "did their homework" in a way that Congress did not. "We made a mistake," admits Republican Congressman Rick White of Washington, who originally supported the CDA, then fought to have the indecency language removed. "The reason we got it wrong this time is that Congress does not understand the Internet."

Will there be a next time? That seems likely. Even if the Justice Department decides to forgo a Supreme Court appeal, the Christian Coalition, along with other "family values" groups that don't necessarily agree on other issues, has vowed to keep the heat on politicians. And there are few of those in Washington with the courage to cast a vote for free speech that could later be construed as a vote for pornography. The Administration, for its part, seems to be trying to have it both ways. Two weeks ago, Vice President Al Gore told graduating seniors at M.I.T. that "fear of chaos cannot justify unwarranted censorship of free speech." Yet after the court ruling last week, the President issued a statement reaffirming his conviction that "our Constitution allows us to help parents by enforcing this Act" and promising "to do everything I can in my Administration to give families every available tool to protect their children."

In the meantime, local prosecutors will have to grapple with how to apply existing obscenity laws to the new frontier of cyberspace. As spelled out by previous Supreme Court rulings, those laws use a three-pronged standard to test for obscenity: Does the material depict sexual conduct in a patently offensive way? Does it lack artistic merit? And does it violate community standards?

That last question puts the globe-spanning Net into direct conflict with local law enforcement. A private computer bulletin-board operator in California has been successfully prosecuted in Tennessee for making obscene material available to a postal inspector in Memphis. The Memphis jury ruled that the material violated local community standards, even though it might have been found acceptable in California or in the "virtual community" of cyberspace. "The question of community standards hasn't been adequately solved in any medium," says Harvard Law School professor Laurence Tribe. Bianca, it seems, is not yet out of the woods.

--Reported by Viveca Novak/Washington and Christopher Stamper/New York

With reporting by VIVECA NOVAK/WASHINGTON AND CHRISTOPHER STAMPER/NEW YORK