The Globe & Mail
Friday, June 27, 1997
page A1

Top U.S. court defends Internet freedom

Supreme Court strikes down two provisions
of 1996 law controlling on-line pornography

by Graham Fraser

The U.S. Supreme Court acted yesterday to protect freedom of speech on the Internet in a decision that praises the new medium as the ultimate in free expression.

In a 7-2 decision written by Justice John Paul Stevens, the court struck down two provisions of the 1996 Communications Decency Act, a bill that made it illegal to put "indecent" or "patently offensive" words or pictures on line where they could be found by anyone under 18 years old.

"As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it", Justice Stevens wrote.

"The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

Congressional supporters of the 1996 bill, citing fears that U.S. children were being swamped by pornography flowing to their computer screens, believed that the Internet had to be regulated. The legislation allowed sexual material on the Internet provided that it was limited to people using credit cards or adult-only access codes. Violaters were liable to fines of $250,000 and up to two years in prison.

Justice Stevens clearly would have none of this, saying the interest in protecting children does not justify an unnecessarily broad suppression of adults' freedom of speech. "The government may not reduce the adult population . . . to . . . only what is fit for adults."

In the decision, he portrayed the Internet as a historic triumph of free expression.

"This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video and still images, as well as interactive, real time dialogue."

"Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders and newsgroups, the same individual can become a pamphleteer. As the District Court found, 'the content on the Internet is as diverse as human thought.' "

Justice Stevens and six of his colleagues affirmed a Pennsylvania court ruling that struck down the 1996 law, agreeing that there was no basis for limiting First Amendment rights with regard to the Internet. The First Amendment of the U.S. Constitution says that "Congress shall make no law . . . abridging the freedom of speech."

The decision was praised by free-speech activists who had challenged the law.

"Today's historic decision affirms what we knew all along: cyberspace must be free", said Ira Glasser, executive director of the American Civil Liberties Union.

Elizabeth Martinez of the American Library Association called it a great victory for librarians and for Internet users. "It's the new tool of the 21st century, and we just can't restrict it."

But backers of the 1996 law complained that the court's action leaves children vulnerable to lewd words and pictures easily obtained on line, and that parents' efforts to protect their children would be harmed.

Senator Dan Coats, the Indiana Republican who sponsored the law, said the justices are "telling parents to abandon any hope of a decent public culture". And Christian Coalition president Donald Hodel said the ruling "leaves millions of children vulnerable to exploitation by pornographers".

In its decision, the Supreme Court considered, and dismissed, the argument by U.S. government lawyers comparing the regulation of sexual material on the Internet with previous Supreme Court decisions that upheld the ban on the sale of obscene material to minors and the sanctions for the broadcast of obscenities on radio, and that allowed municipalities to keep adult movie theatres out of residential neighbourhoods through zoning.

In each of these cases, the court argued, there were factors that justified limiting freedom of speech -- largely because children would be affected, and that parents would be unable to control the intrusion of unwelcome material.

"These factors are not present in cyberspace", Justice Stevens wrote, saying that the Internet is not as invasive as radio or television and that users do not encounter material on the Internet by accident.

Justice Stevens was joined by Justices Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. Chief Justice William Rehnquist and Justice Sandra Day O'Connor dissented in part, saying it was constitutionally sound to create adult zones on the Internet but that portions of the law were unconstitutional because of the way this was done.

The law was challenged by the ACLU, American Library Association, America Online, American Society of Newspaper Editors and about 20 other groups.

Copyright © 1997 by The Globe & Mail. All Rights Reserved. Reprinted with permission.