🚀 go-pugleaf

In article <freematt-1206961610530001@cmh28.coil.com>,
freematt@bronze.coil.com (Matthew Gaylor) wrote:

> Subject: CDA IS DEFEATED!!!

From: Rich Burroughs <richieb@teleport.com>
Subject: Excerpts from ACLU v. Reno decision

Wooohoo!  :)

Rich


============
A preliminary injunction in the ACLU v RENO case was announced
this morning!  The judges ruled 3-0.  The next step is probably an
appeal to the Supreme Court.

More info and the full text of the decision are available at:
http://www.cdt.org/ciec

It looks like these judges have reached a very good understanding
of how the Net works, and the issues involved.  The decision is very
interesting, and here are some things that caught my eye during my
first read:

>From the panel's Finding's of Fact (80-81):

"Once one has entered cyberspace, one may engage in the dialogue
that occurs there.  In the argot of the medium, the receiver can and
does become the content provider, and vice-versa.  The Internet is
therefore a unique and wholly new medium of worldwide human
communication."

Judge Dalzell:

"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."

"It is no exaggeration to conclude that the Internet has
achieved, and continues to achieve, the most participatory
marketplace of mass speech that this country -- and indeed the
world -- has yet seen.... 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."

"Some of the dialogue on the Internet surely tests the
limits of conventional discourse.  Speech on the Internet can be
unfiltered, unpolished, and unconventional, even emotionally
charged, sexually explicit, and vulgar -- in a word, 'indecent'
in many communities.  But we should expect such speech to occur
in a medium in which citizens from all walks of life have a
voice.  We should also protect the autonomy that such a medium
confers to ordinary people as well as media magnates."

"Moreover, the CDA will almost certainly fail to
accomplish the Government's interest in shielding children from
pornography on the Internet.  Nearly half of Internet
communications originate outside the United States, and some
percentage of that figure represents pornography.  Pornography
from, say, Amsterdam will be no less appealing to a child on the
Internet than pornography from New York City, and residents of
Amsterdam have little incentive to comply with the CDA."

"The diversity of the content will necessarily diminish as a result
[of the CDA].  The economic costs associated with compliance with
the Act will drive from the Internet speakers whose content falls
within the zone of possible prosecution.  Many Web sites,
newsgroups, and chat rooms will shut down, since users cannot
discern the age of other participants.  In this respect, the
Internet would ultimately come to mirror broadcasting and print,
with messages tailored to a mainstream society from speakers who
could be sure that their message was likely decent in every
community in the country."

Judge Slovitner:

"Subjecting speakers to criminal penalties for speech
that is constitutionally protected in itself raises the spectre
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."

"Even if a broad search will, on occasion, retrieve unwanted materials,
the user virtually always receives some warning of its content,
significantly reducing the element of surprise or 'assault'
involved in broadcasting.  Therefore, it is highly unlikely that
a very young child will be randomly 'surfing' the Web and come
across 'indecent' or 'patently offensive' material."

"The Supreme Court has held that 'minors are
entitled to a significant measure of First Amendment protection,
and only in relatively narrow and well-defined circumstances may
government bar public dissemination of protected materials to
them.'  Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213
(1975)(citations omitted)."

"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."

Judge Buckwalter:

"I continue to believe that the word 'indecent' is unconstitutionally
vague, and I find that the terms 'in context' and 'patently offensive'
also are so vague as to violate the First and Fifth Amendments."

"The fundamental constitutional principle that concerns me is one
of simple fairness, and that is absent in the CDA.  The Government
initially argues that "indecent" in this statute is the same as "patently
offensive."  I do not agree that a facial reading of this statute supports
that conclusion.  The CDA does not define the term "indecent," and
the FCC has not promulgated regulations defining indecency in the
medium of cyberspace."

"Contrary to the Government's suggestion, Pacifica does not answer
the question of whether the terms pass constitutional muster in
the present case.  In Pacifica, the Court did not consider a
vagueness challenge to the term "indecent," but considered only
whether the Government had the authority to regulate the
particular broadcast at issue -- George Carlin's Monologue
entitled "Filthy Words."  In finding in the affirmative, the
Court emphasized that its narrow holding applied only to
broadcasting, which is 'uniquely accessible to children, even
those too young to read.'  438 U.S. at 749.  Thus, while the
Court sanctioned the FCC's time restrictions on a radio program
that repeatedly used vulgar language, the Supreme Court did not
hold that use of the term 'indecent' in a statute applied to
other media, particularly a criminal statute, would be on safe
constitutional ground."

========


Rich
______________________________________________________________________
Rich Burroughs  richieb@teleport.com  http://www.teleport.com/~richieb
See my Blue Ribbon Page at http://www.teleport.com/~richieb/blueribbon
New EF zine "cause for alarm" - http://www.teleport.com/~richieb/cause


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