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Immediately after President Clinton signed the Telecommunications Reform Bill into law on February 8, 1996, a coalition led by the ACLU appeared in federal court and was able to temporarily halt the implementation of the bill's widely publicized "decency provisions." For plaintiffs, the most problematic sections of the CDA were those that set forth criminal penalties for certain communications -- sent to or received by persons under 18 -- that might be considered "indecent" or "patently offensive."
Section 502 of the CDA, which amends Section 223 of the Communications Act of 1934, provides in pertinent part that whoever "in interstate or foreign communications...by means of a telecommunications device knowingly...initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication...shall be fined under title 18, United States Code, or imprisoned not more than two years, or both." 47 U.S.C. Section 223 (a) (1) (B) (ii).
The Act also provides similar criminal penalties for those who in interstate or foreign communications knowingly use an interactive computer service to "send to a specific person or persons under 18 years of age, or...display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or knowingly...[and intentionally]...permits any telecommunications facility under such person's control to be used for such activity." 47 U.S.C. Section 223 (d).
Plaintiffs in the initial lawsuit -- ACLU v. Reno, No. 96-963 -- include the Electronic Privacy Information Center, the Electronic Frontier Foundation, Computer Professionals for Social Responsibility, the National Writers Union, and the Planned Parenthood Federation of America. On February 15th, a Temporary Restraining Order was granted to these plaintiffs by the Federal District Court for the Eastern District of Pennsylvania "with regard to the provisions of 47 U.S.C. Section 223 (a) (1) (B) (ii), insofar as they extend to 'indecent,' but not 'obscene.'" Plaintiffs' motion in all others respects was denied.
In Late February, a coalition led by the American Library Association (ALA) and the newly formed Citizens Internet Empowerment Coalition (CIEC) filed a second lawsuit challenging the constitutionality of the CDA. ALA v. U.S. Dept. of Justice, No. 96-1458. Plaintiffs in this lawsuit include not only such highly respected groups as the ALA, the American Booksellers Association, the American Society of Newspaper Editors, the Association of American Publishers, and the Center for Democracy and Technology, but also such major companies as America Online, Apple Computer, CompuServe, Microsoft Corporation, Netcom, Prodigy, and Wired Ventures, Inc.
On February 27th, the ACLU and ALA cases were officially consolidated, and plaintiffs' attorneys have been working together very closely ever since. In their post-trial brief in support of a motion for a preliminary injunction, plaintiffs continued their efforts to enjoin all the "indecency" and "patent offensiveness" provisions of 47 U.S.C. Section 223 (a) (1) (B), (a) (2), and (d). They set forth a series of First Amendment arguments rooted in First Amendment principles prohibiting vagueness and overbreadth.
Among their many arguments, plaintiffs claimed that no compelling interest had been shown in criminalizing all "indecent" or "patently offensive" communications that may be accessed by minors. They also asserted that the CDA is the most restrictive speech ban in any medium.
In addition, plaintiffs focused on the "defenses" set forth in Section 223 (e) of the Act -- which prevent liability for simply providing "access or connection" unless knowledge, authorization, ratification, or reckless disregard of conduct can be shown -- arguing that these defenses do not satisfy the least restrictive means test because (1) they are unavailable to the vast majority of online speakers and (2) voluntary methods exist that permit parents and other adults to shield minors from arguably inappropriate material. Finally, they contended that the CDA is far less effective in achieving the government's goal than are less burdensome existing alternatives.
On March 21st, a federal court panel convened under 28 U.S.C. Section 2284 for the purpose of assisting the court in conducting a hearing on the Motion for Preliminary Injunction. A notable feature of these proceedings was the installation of a T-1 circuit and a small local area network in the Ceremonial Room of the Philadelphia court, which enabled judges, attorneys, and witnesses to access the Internet together. Courtroom observers believe that this is the first time in history that a federal courtroom has been wired to the Net for purposes of a trial.
Among the witnesses appearing for the plaintiffs were Vanderbilt Professor Donna Hoffman (a marketing expert who testified that many "mom and pop" web site might be forced to close down because of uncertainty about indecency penalties), Kiyoshi Kuromiya (an anti-AIDS activist who testified that his site might be implicated by the new law because it provides crucial, sexually explicit information on safer sex practices for teens around the world), and Howard Rheingold (an author and cyberspace expert who testified regarding the difficulties inherent in attempting to define "community standards" for a worldwide network).
Anne Duvall was the only witness to offer direct testimony in court to the judges. Ms. Duvall, President of SurfWatch, appeared on behalf of the plaintiffs and demonstrated via the Internet hookup how her company's software blocks access to sites deemed unsuitable for children.
According to trial updates provided on the Internet by the Electronic Privacy Information Center, witnesses for both sides clashed regarding technology and strategies that might be available for prohibiting indecent and offensive material. Special Agent Howard A. Schmidt, testifying on behalf of the government, acknowledged under cross-examination that the majority of sexually explicit sites that he had come across in his investigation would have been off limits had he been running a software program such as SurfWatch.
The final plaintiff witness, Dr. Albert Vezza of the MIT Laboratory of Computer Sciences, told the court about Platform for Internet Content Selection (PICS) -- a new system designed to allow parents to control children's access to the Internet according to their own values or via a rating system devised by a trusted organization.
The final government witness, Dr. Dan Olsen of Brigham Young University, testified that the best way to comply with the new laws would be to block all possible "indecent" words and images until "questionable" material could be reviewed and labeled for adult consumption. Olsen explained that he had created the "-L18" system, which would enable content creators to determine whether their words or images were "indecent" or "patently offensive." An electronic "-L18" label would then be attached to all such sites. Several judges questioned Dr. Olsen on this system, and wondered how "-L18" might apply to e-mail or to chat rooms.
A decision on this closely watched case is expected to be handed down as early as Mid-June. Under expedited procedures, any appeal would be made directly to the U.S. Supreme Court, and indeed most commentators are convinced that the highest court in the land will have the final word on this highly controversial topic.
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