Andrew Charlesworth reports that the US government may still win the battle for control of online content.
On February 8, President Clinton signed the Telecommunications Act 1996, including the provisions of the Communications Decency Act of 1996 (CDA). The purpose of the CDA was to prevent the access by minors to "indecent communications" made by means of a "telecommunications device" or to "patently offensive depictions of sexual or excretory activities", online over an "interactive computer service".
This clearly covered materials available on the Internet, but the wording of the categories meant that not just pornographic images and materials, but also great works of art and literature might be caught.
Two lawsuits were filed in the United States District Court for the Eastern District of Pennsylvania in Philadelphia, one by the American Civil Liberties Union and other civil liberties groups, the other by a group of information providers including the American Library Association, the American Booksellers Association, America Online, and Microsoft.
These were then consolidated into one case, calling for a preliminary injunction preventing Attorney General Janet Reno, and all acting under her direction and control from enforcing, prosecuting, investigating or reviewing any matter premised upon the Act.
Those bringing the lawsuits argued that: "The Act bans all expression that is 'indecent' or 'offensive' from all online systems that are accessible to minors. Not only does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans 'indecent' or 'patently offensive' speech entirely, thus impermissibly reducing the adult population to 'only what is fit for children'."
On February 23, the government agreed not to prosecute under either the "patently offensive" or the "indecency" provisions until the Court heard and determined the ACLU's motion for a preliminary injunction. On June 11, the three judge panel granted the motion for a preliminary injunction. However, all three judges appear to have provided different reasons for doing so, with one judge holding that the Act was invalid on its face under the First and Fifth Amendments, the second holding that it was void for vagueness, but that a specific more narrowly-tailored rule regulating Internet speech could be constitutional, and the third holding that the Act was not vague, but all Internet speech regulation would be unconstitutional.
The differences apparent between the judges' holdings mean that a US Government appeal to the US Supreme Court is likely, with the government having to make a decision whether to appeal by today.
In the meantime, there has been some confusion among commentators over the territorial extent of the ruling, that is, whether the ruling in Philadelphia has any binding or persuasive effect on courts outside the District Court for the Eastern District of Pennsylvania's immediate jurisdiction. This is of particular interest as a second lawsuit brought by an online journalist, Joe Shea, is currently before a Federal court in Manhattan.
It has been suggested that the government may choose to appeal this case rather than that brought in Philadelphia, as it only focuses on the "patently offensive" category, and appears overall to be a weaker case.
What is clear is that because the US government, in the form of the Department of Justice, was a party to the Philadelphia ruling, it is bound not to enforce the CDA nation-wide while the preliminary injunction remains in place.
It seems likely that the chilling effect that the CDA has had on the users of the Internet will continue until a definitive ruling is obtained.
If the Supreme Court holds the CDA to be constitutional, individuals in the US who relied on the preliminary injunction in the interim might yet find themselves in court.
A transcript of the Philadelphia judgment can be found at http://www.cdt.org/ciec/decision.txt.
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