Hear Ye, Hear Ye, Court Dumps Decency Act
Cheers and applause rose up out of the rooms of the conference center in San Francisco when the U.S. Supreme Court's ruling on the Communications Decency Act was announced to librarians attending their national convention on June 26. The jubilation was modest, but the court's decision may be one of the most significant of this century.Within the hour, those with access to the Internet had copies of the decision in hand.A few hours later, on a tiny grassy strip called South Park, attorney Bruce Ennis who represented the American Library Association, the American Civil Liberties Union, and 45 other plaintiffs in oral argument before the high court, spoke about the implications of the Reno v. ACLU decision to a small enthusiastic crowd from the back of a mini-truck. No tie-dyes, no incense -- but there was a hint of the '60s that afternoon in San Francisco.The ruling means, Ennis told the audience, that the speaker and the publisher on the Internet has at least the same First Amendment protections as the press. "The court has now decided, not just for this case but for all future regulations of the Internet that speech on the Internet deserves the highest level of First Amendment protection."The Communications Decency Act was an attempt by Congress to protect minors from "indecent" and "patently offensive" speech -- a much broader category of speech than "obscenity" or "pornography" which is still against the law.The CDA would have punished speakers and publishers on the Internet if their words or images crossed into the wide, foggy valley of "indecency."In an interview later, Ennis examined the impact in relation to libraries: "If the Supreme Court had upheld this law, it would have been truly devastating for librarians because much of the content in their libraries could be found 'indecent' under this very broad definition. And therefore they could not make that content available online to any of their patrons -- adults or minors."The victory over CDA was momentous -- not only for librarians -- but for everyone who uses or will use the Internet. Not only for U.S. citizens, but for citizens of every nation. We are still the standard bearer for freedom of speech.The high court recognized that the Internet, in the words of Ennis, "is the medium that is most consistent with the concept of a true marketplace of ideas in which all people can speak and their views can be heard regardless of their wealth, their class, their race, their stature, their political power -- regardless of all of those irrelevant characteristics. So that in a true marketplace of ideas it's the strength of the ideas themselves that can ultimately prevail. That's the main objective of the First Amendment -- to protect the marketplace of ideas. And the Internet is the first truly global marketplace of ideas."It is no accident that libraries, which provide books to everyone whether rich or poor, now provide access to the Internet so that anyone can be a publisher and zap messages to thousands of people all over the world with a single key stroke.The high court showed by its ruling that it understands the Internet is not like the broadcast media. It isn't radio or television -- "the recipient of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial," the court noted. Nor is the Internet like a telephone. The old analogies don't work. The Net is unique.Justice John Paul Stevens wrote the opinion for the essentially unanimous court. Justice Sandra Day O'Connor filed an opinion which agreed with the majority in everything but a narrow detail. Chief Justice William Rehnquist joined O'Connor's opinion.Nearly half of the Supreme Court's opinion is dedicated to the analysis done by the lower federal three-judge district court and acknowledged its "extensive findings of fact" about the nature of the Internet. These findings provide the underpinning for the high court's decision.Ennis devised the strategy to inform the lower court about the Internet by bringing in experts to testify and actually show the judges how this new medium works. Ennis then asked that the resulting 350-page factual record be attached to the lower court's ruling. The strategy must be seen as pivotal in the Supreme Court's decision.Justice Stevens wrote almost glowingly: "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.' We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium."Although the government has a legitimate interest in protecting children from potentially harmful materials, the court found that the Communications Decency Act would suppress a vast amount of speech that adults have a constitutional right to send and receive.The CDA was fashioned without public hearings, the court noted. And the law is also impermissibly vague.The CDA is overly broad and not "carefully tailored to the congressional goal of protecting minors from potentially harmful materials," the court noted.However, O'Connor in her separate opinion would allow the CDA to only punish "indecent transmissions" directed from an adult to one or more minors. Rehnquist agreed -- but the majority on the court did not.The court concluded that the Internet, in light of its democratic, participatory potential, demands the highest level of First Amendment protection. The CDA could not clear that hurdle. And that is the hurdle any future attempts at regulating the Net must be able to leap.Right now everyone is free to be a town crier or a pamphleteer. Let us keep it that way.Charles Levendosky was a member of the American Library Association's Freedom to Read Foundation Board of Trustees when this lawsuit was filed.Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary. His e-mail address is levendos(AT-sign)trib.com.