J O I N  T H E  S U I T !

W H Y  W E ' L L  W I N


by Mike Godwin

We lawyers don't usually like to talk about ongoing cases. But when it comes to our legal challenges to the Communications Decency Act (CDA), I'm not my usual shy and retiring self. I think we're going to win this battle, largely because of three killer arguments that show how this Net censorship legislation is unconstitutional.

Our first argument is grounded in the liturgy of the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press...." Net.libertarians sometimes forget that those gospel words have a few narrow exceptions - fraudulent speech is not protected, for example, and neither is perjury. Likewise, "obscene" speech enjoys no First Amendment protection, since its "prurient" sexual content lacks "serious" literary, artistic, political, or scientific value.

But the CDA doesn't target arguably obscene items like Dirty Debutantes or even Debbie Does Dallas. Instead, it effectively bans a broad class of fully protected speech from public forums on the Net.

By criminalizing "indecent" and "patently offensive" speech in cyberspace, Senator James Exon and the Christian Coalition's self-serving censors waded into a constitutional swamp. Unlike "obscene" material, content that is merely "indecent" or "patently offensive" is protected by the First Amendment. Of course, the Supreme Court has held that "indecent" speech can be regulated (but not banned altogether) in the broadcasting arena. Even so, the Feds have constitutional authority to regulate broadcast content only because of what the court calls the "scarcity" of broadcast frequencies and the "pervasiveness" of broadcast media. To prove that Uncle Sam has no general authority to regulate protected content in cyberspace, we'll argue that the Net has no problem with either "scarcity" or "pervasiveness."

That's easy to show. After all, the Net doesn't suffer from "scarcity" in the sense in which the court uses that term. Add an Internet node, and - boom! - you've just increased the capacity of the Internet. Similarly, "pervasiveness" has a special meaning in the context of broadcasting that doesn't apply to the Net. A "pervasive" medium pushes content at passive recipients, but net.users actively make choices to pull content into their computers. In short, net.users may be geeks, but they're not couch potatoes.

Secondly, we'll argue that the terms for the types of speech criminalized by the CDA are unconstitutionally vague and overbroad. Here, the focus will be on two categories of material prohibited by the legislation: 1) "indecent" content and 2) "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." That wordy second category sounds more specific - and far more pornographic - than it really is; in fact, it's just a regurgitation of the FCC's current definition of "indecent" content.

When the Family Research Council's Minister of Truth, Cathy Cleaver, pretends that these prohibited categories of speech are synonymous with pornography, she's telling the Big Lie. Nearly two decades ago, the Supreme Court acknowledged that "indecent" content need not include elements that are intended to be sexually arousing. This is why comic material such as the monologs of Lenny Bruce and George Carlin, or even Allen Ginsberg's poem "Howl," can be regulated on TV and radio. "Indecent" or "patently offensive" speech is often crude and perhaps inappropriate for some kids, but a potentially "indecent" political statement like "Fuck censorship!" hardly qualifies as smut.

Should such statements be banned from public spaces of the Net? If Janet Reno believes that they should, then the CDA is "unconstitutionally overbroad." And our mere uncertainty about her answer to that question demonstrates that the boundaries of these prohibited categories of speech are, in and of themselves, "unconstitutionally vague."

Third, we'll try to prove that the CDA flunks the "least restrictive means" test imposed by longstanding First Amendment precedent. Suppose the government wins the other two challenges: It still can't prove that the criminal prohibitions mandated by the CDA are the "least restrictive" way to prevent inappropriate content from reaching children. We'll show that software filters such as SurfWatch, parental-control features such as those offered by America Online, and content-labeling schemes such as PICS are easily implemented alternatives to the CDA that don't turn the Internet into a paradise of the lowest common denominator by dumbing the level of discourse down to what's acceptable for children.

All three of these First Amendment arguments boil down to one simple proposition: that anything legal in a Barnes & Noble bookstore or the New York City Public Library should also be legal in the public spaces of the Net. Even the CDA's strongest champions stumble when trying to refute this statement. And that, in a nutshell, is why I believe we will win.

Mike Godwin is a lawyer for the Electronic Frontier Foundation, which is a plaintiff in the first lawsuit to challenge the Communications Decency Act. His book, Cyber Rights: Free Speech in the Digital Age, will be published by Random House this fall.

Copyright 1996 HotWired Ventures LLC.

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