The question of what constitutes indecency on the Internet, and which elements of the recently passed Communications Decency Act are unconsstitutional, will be answered soon by a federal court in Philadelphia.
BOB EDWARDS, Host: In Philadelphia today, a federal court hears the first challenge to the Communication's Decency Act. That's the new law which prohibits the transmission of obscene or indecent material to minors over the Internet. It's part of the Telecommunications Reform bill which President Clinton signed into law last month. But even members of Congress who voted for it are concerned about its constitutionality because it is so broad, and the government has decided not to enforce parts of the bill until the courts decide. NPR's Brooke Gladstone reports.
BROOKE GLADSTONE, Reporter: Among some young people who cut their teeth on the Internet, passions are already running high, as Tom Stoddard [sp] found out recently when his students assembled for class at New York University Law School.
TOM STODDARD, NYU Law School: Two days ago I showed up for class, and I noticed students in the hallway wearing blue ribbons. I had seen pink ribbons, I had seen red ribbons, I had seen yellow ribbons, I had never seen blue ribbons. After I saw my 10th student, I asked the student what the blue ribbon meant. And she said, `Oh, that's our protest against the Communications Decency Act.' I said, `What's the nature of the protest?' She said, `Well, tomorrow, we will refuse to speak in any class.'
BROOKE GLADSTONE: For many parents, though, freedom of speech is not as important as protection from smut on-line, according to Donna Rice Hughes [sp] of a citizens group called Enough is Enough.
DONNA RICE HUGHES, Enough is Enough: I have never talked to a parent that wants to take the risk of their children being exposed to what would be considered to be adult material, much less anything beyond that, which would be the obscenity and the child pornography that has been proliferating on the Internet.
BROOKE GLADSTONE: But the issue here is not obscenity or child pornography. Those are already prohibited by law, and the FBI actively pursues violators. The act also prohibits indecency, a term that critics say is unconstitutionally vague. The Supreme Court determined, in one famous case, that seven dirty words were indecent and they were banned from TV and radio. Other than that, the highest court hasn't said much about indecency. But the act defines it as `patently offensive according to contemporary community standards,' and prohibits it in any computer communication that could be accessed by a minor. Christopher Hansen [sp] is arguing for the American Civil Liberties Union against the act in court today. He says that definition makes no allowances for artistic, scientific or other socially valuable speech or images.
CHRISTOPHER HANSEN, ACLU Attorney: You are potentially criminally liable if you use any of those words. You are potentially criminally liable if you discuss topics like sex or like gay sex or like prevention of pregnancy. You are potentially liable under a whole host of applications of this law. And, frankly, I'm not comforted by advocacy groups or even by the government saying, `Oh, trust us, we promise not to abuse this broad power. We promise only to use it against real bad guys.'
BRUCE TAYLOR, President, National Law Center for Families and Children: The ACLU, by saying, `Your option, Mr. and Mrs. Parent, is to keep your little, grubby kids off our Internet so we can talk dirty and throw pornography pictures around there,' is going to be rejected.
BROOKE GLADSTONE: Bruce Taylor, president of the National Law Center for Families and Children, helped draft the Communications Decency Act. He says the law is constitutional, that the courts have recognized indecency statutes in other forms of communications.
BRUCE TAYLOR: The real issue for the courts is going to be - is this law narrowly tailored in the least restrictive way, is it technically feasible to comply with it? And as to those questions the court is going to say, yes, it is technically feasible. Every user of the Internet, unless you are stealing your access, has to subscribe to somebody. And at the time of your subscription, that is going to be an easy time to give a credit card, or an ID or a driver's license to give you an adult access code they can allow adults unlimited access to adult material, and can screen out children from all of it. And that's what Congress is asking of the industry. And I think that's what the courts are going to allow this bill to do.
BROOKE GLADSTONE: But the ACLU, libraries, publishers, and other organizations that have joined the suit, argue that Internet communication cannot be regulated like that. It's instantaneous, and global. A child who lacks the ID to access a domestic service can just as easily log into a chat room in London or Hong Kong. Meanwhile, says ACLU lawyer Chris Hansen, Americans would be frightened into silence.
CHRISTOPHER HANSEN: That is, if I spoke the speech in New York City and they decide they want to prosecute me in Mississippi or in Cincinnati or in Louisville, they can do that. And if the Louisville court or the Cincinnati court or the Mississippi court thinks it is patently offensive or indecent, I go to jail.
Sen. JAMES EXON (R-NE): I simply say that these elitists, to think they know everything about everything, what do they say about the kids?
BROOKE GLADSTONE: Senator James Exon of Nebraska fathered the Communications Decency Act.
Sen. JAMES EXON: I think we have a responsibility here. We did it with telephones, and we did it with the U.S. mails. There's nothing to say that the Internet is so different, although it is, that we dare not touch it.
BROOKE GLADSTONE: Republican Congressman Rick White, a freshman from Washington state, says that Congress in its zeal to protect children moved to pass the act too quickly.
Rep. RICK WHITE (R-WA): I told everybody the standard was unconstitutional, and a lot of us did when we passed this law. And to make sure that we got it resolved quickly we have a procedure that says the courts have to rule on this within about a year. But we'll know pretty soon whether this law is constitutional or not. If it's not, we're going to be back to the drawing board and we'll have an opportunity to do a little better job than we did last time.
BROOKE GLADSTONE: White supported a different standard, not indecency, but rather `harmful to minors,' which has a clearer legal definition. Ultimately, though, the great debate over the Internet will not take place in Washington but in millions of American homes. Senator Patrick Leahy, Democrat of Vermont, says that is precisely where it belongs.
Sen. PATRICK LEAHY (D-VT): Of course there's a possibility, if you have it basically unrestricted, that there are going to be some things that we'll all find offensive. For one thing, you don't have to look at them. Secondly, if they are involving children we have very strict laws, but don't try to set a standard of the average 12-year-old for all of us and do it by law and say to parents, `Here, we'll take over for you. You don't have to have any responsibility.'
BROOKE GLADSTONE: Opponents of the act say that parents don't need new laws to safeguard their children. Blocking devices such as Surf Watch, Net Nanny, and Cyber Patrol already exist. They monitor a multitude of Internet sites, both domestic and foreign, and parents can lock them away from their children. The ACLU says this technology empowers parents while protecting the anarchy of the Internet, which NYU law professor Tom Stoddard says is its glory.
TOM STODDARD: The Internet, and computers generally, subvert attempts at government regulation. Computer information is too individualized, it is too interactive, that means that the government will ultimately fail. It will harass people, it will cause trouble, but in the end, the Internet will prevail. And we'll all be better people because we will have a more fully communicative world. The world is different because of computers. This is, in a sense, the last gasp of the censors.
BROOKE GLADSTONE: What is America's community standard for decency when so many different communities are brought nose to nose on the Internet? Supporters of the act say it would not restrict any speech of value. The courts have a year to figure out what that means.
This is Brooke Gladstone reporting.
