Keeping Cyberspace Free, for Now
By Catherine Sansum Kirkman
In June, a panel of federal judges in Philadelphia ruled that the American Civil Liberties Union was entitled to a preliminary injunction against enforcement of censorship provisions of the infamous Communications Decency Act of 1996. The panel agreed with the ACLU that two provisions of the CDA that restrict communications to minors over the Internet if they are "indecent" or "patently offensive" are unconstitutional, as violations of the First Amendment and the Due Process Clause of the Fifth Amendment. The CDA had been signed into law in February 1996 by President Clinton, as part of the omnibus telecom-reform legislation, the Telecommunications Act of 1996.
The CDA imposed criminal liability for certain "indecent" or "patently offensive" uses of interactive computer services. The CDA borrowed the "indecency" standard used by the Federal Communications Commission for the radio broadcast context. However, the federal panel found:
...significant differences between Internet communications and communications received by radio or television. Although content on the Internet is just a few clicks of a mouse away from the user, the receipt of the information on the Internet requires a series of affirmative steps more deliberated and directed than merely tuning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.
The panel concluded that the government offered no evidence of a reliable way to ensure recipients and participants in online fora can be screened for age:
The government presented no evidence demonstrating the feasibility of its suggestion that chat rooms, newsgroups and other fora that contain material deemed indecent could be effectively segregated to "adult" or "moderated" areas of cyberspace.<>
