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From: Home Page Press <obt@hpp.com> 
Subject: Internet Plaintiffs Trounce Government in Free Speech Battle

Internet Plaintiffs Trounce Government in Free Speech Battle

"Cutting through the acronyms and argot that littered the hearing testimony,
the Internet may fairly be regarded as a never-ending worldwide
conversation.  The Government may not, through the CDA, interrupt that
conversation.  As the most participatory form of mass speech yet developed,
the Internet deserves the highest protection from governmental intrusion."
---judge Buckwalter

In a colossal victory for American free speech and the American Internet, a
three-judge panel in the United States District Court for the Eastern
District of Pennsylvania granted the American Civil Liberties Union and the
American Library Association request for a preliminary injunction against
two key provisions of the Communications Decency Act (CDA) of 1996. In the
decision on June 12, the federal judges ruled the four-month old CDA
unconstitutionally restricts free speech on the Internet.

The unanimous decision declared the "the indecency provision" of the CDA was
unconstitutionally vague.  The judges said in part, "Just as the strength of
the Internet is chaos, so the strength of our liberty depends upon the chaos
and cacophony of the unfettered speech the First Amendment protects. For
these reasons, I without hesitation hold that the CDA is unconstitutional on
its face."  The ruling thus forcefully rejects the new laws which in part
attempt to censor Americans� rights of liberty and access to publish, see
and read what they choose on the Internet.  Judges Sloviter, Buckwalter and
Dalzell also said, "Any content-based regulation of the Internet, no matter
how benign the purpose, could burn the global village to roast the pig."

The plaintiffs focused their challenge on two provisions of the CDA:

          Section 223(a)(1)(B) provides in part that any person in
interstate or foreign communications who, "by means of a telecommunications
device,"[5] "knowingly . . . makes, creates, or solicits" and "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," "shall be criminally fined or
imprisoned."

          Section 223(d)(1) makes it a crime to use an "interactive computer
service"[6] to "send" or "display in a manner available" to a person under
age 18, "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."

          Plaintiffs also challenged on the same grounds the provisions in
223(a)(2) and   223(d)(2), which make it a crime for anyone to "knowingly
permit any telecommunications facility under [his or her] control to be used
for any activity prohibited" in    223(a)(1)(B) and 223(d)(1).  The
challenged provisions impose a punishment of a fine, up to two years
imprisonment, or both for each offense.

The court�s decision included "Subjecting speakers to criminal penalties for
speech that is constitutionally protected in itself raises the specter of
irreparable harm.  Even if a court were unwilling to draw that conclusion
from the language of the statute itself, plaintiffs have introduced ample
evidence that the challenged provisions, if not enjoined, will have a
chilling effect on their free expression.  Thus, this is not a case in which
we are dealing with a mere incidental inhibition on speech, but with a
regulation that directly penalizes speech."

The total evidence and final opinion ran to 175 pages.  "Finding of Fact"
subjects included:

1.  How Individuals Access the Internet
2.  Methods to Communicate Over the Internet
3.  The World Wide Web
4.  Restricting Access to Unwanted On-Line Material
5.  Content on the Internet
6.  Obstacles to Age Verification on the Internet
7.  Credit Card Verification
8.  Adult Verification by Password
9.  The Problems of Offshore Content and Caching
10. Anonymity

The judges focused on Internet freedom by stating "The CDA is patently a
government imposed content-based restriction on speech, and the speech at
issue, whether denominated "indecent" or "patently offensive," is entitled
to constitutional protection. As such, the regulation is subject to strict
scrutiny, and will only be upheld if it is justified by a compelling
government interest and if it is narrowly tailored to effectuate that
interest.  The benefit gained [by a content-based restriction] must outweigh
the loss of constitutionally protected rights."

Other quotes from the Internet decision include:

"A wealth of persuasive evidence, referred to in detail in the Findings of
Fact, proved that it is either technologically impossible or economically
prohibitive for many of the plaintiffs to comply with the CDA without
seriously impeding their posting of online material which adults have a
constitutional right to access."

"Because I believe that "indecent" and "patently offensive" are inherently
vague, particularly in light of the government's inability to identify the
relevant community by whose standards the material will be judged, I am not
persuaded by the government that the statutory defenses in   223(e) provide
effective protection from the unconstitutional reach of the statute."

"But the bottom line is that the First Amendment should not be interpreted
to require us to entrust the protection it affords to the judgment of
prosecutors.  Prosecutors come and go.  Even federal judges are limited to
life tenure.  The First Amendment remains to give protection to future
generations as well.  I have no hesitancy in concluding that it is likely
that plaintiffs will prevail on the merits of their argument that the
challenged provisions of the CDA are facially invalid under both the First
and Fifth Amendments."

"This statute, all parties agree, deals with protected speech, the
preservation of which has been extolled by court after court in case after
case as the keystone, the bulwark, the very heart of our democracy. What is
more, the CDA attempts to regulate protected speech through criminal
sanctions, thus implicating not only the First but also the Fifth Amendment
of our Constitution.  The concept of due process is every bit as important
to our form of government as is free speech.  If free speech is at the heart
of our democracy, then surely due process is the very lifeblood of our body
politic; for without it, democracy could not survive."

Judge Buckwalter said, "The fundamental constitutional principle that
concerns me is one of simple fairness, and that is absent in the CDA."

Judge Dalzell said, "The Internet is a new medium of mass communication.  As
such, the Supreme Court's First Amendment jurisprudence compels us to
consider the special qualities of this new medium in determining whether the
CDA is a constitutional exercise of governmental power.  Relying on these
special qualities, which we have described at length in our Findings of fact
above, I conclude that the CDA is unconstitutional and that the First
Amendment denies Congress the power to regulate protected speech on the
Internet."

"Over the course of five days of hearings and many hundreds of pages of
declarations, deposition transcripts, and exhibits, we have learned about
the special attributes of Internet communication.  Our Findings of Fact --
many of them undisputed -- express our understanding of the Internet.  These
Findings lead to the conclusion that Congress may not regulate indecency on
the Internet at all."

"Indeed, the Government's asserted "failure" of the Internet rests on the
implicit premise that too much speech occurs in that medium, and that speech
there is too available to the participants.  This is exactly the benefit of
Internet communication, however.  The Government, therefore, implicitly asks
this court to limit both the amount of speech on the Internet and the
availability of that speech.  This argument is profoundly repugnant to First
Amendment principles."

"My examination of the special characteristics of Internet communication,
and review of the Supreme Court's medium-specific First Amendment
jurisprudence, lead me to conclude that the Internet deserves the broadest
possible protection from government-imposed, content-based regulation."

"The Internet is a far more speech-enhancing medium than print, the village
green, or the mails.  Because it would necessarily affect the Internet
itself, the CDA would necessarily reduce the speech available for adults on
the medium.  This is a constitutionally intolerable result."

FIRST AMENDMENT to the CONSTITUTION OF THE UNITED STATES:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

FIFTH AMENDMENT to the CONSTITUTION OF THE UNITED STATES:

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.

[Editor�s Note:  Although an appeal the United States Supreme Court by Janet
Reno and the U.S. Department of Justice is expected, the veracity of the
three-judge panel is plain to see.  Their collective fervor is a comfort to
us all.  Home Page Press is relieved to be [temporarily] free from further
attacks on freedom of speech on the Internet.  To OBT readers in other
countries, we wish you well in your efforts to promote a free Internet.
Just know that American freedoms come at the price of permanent vigilance
and constant defense against the consumptive tendencies of governmental
power.  Thankfully we the people have a powerful ally in the now freer
Internet.]
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