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Censorship in Cyberspace

Published: April 30, 1996

Congress acted without thinking when it decided three months ago to censor the growing web of
computer networks in the name of protecting children. It held no hearings and made no effort to
learn how the Internet actually works. Had it done so, it would have discovered that the
Communications Decency Act was an unconstitutional and wholly unnecessary infringement on
free speech.
Not surprisingly, the law was quickly challenged. A panel of three Federal judges will soon hear
closing arguments. It is a landmark case that will help determine how the First Amendment, an
18th-century creation, will apply to the communication technologies of the 21st century.
However it rules, the panel has been far better informed about these technologies than Congress
The case was brought by the American Civil Liberties Union and a coalition including the
American Library Association, journalism and publishing groups and on-line service companies.
The law makes it a felony to knowingly transmit indecent or patently offensive sexual material
over networks where children may see it.
In February, one of the three judges issued a preliminary ruling that the provision barring
indecent material was unconstitutionally vague. But the judge declined to rule against other
portions of the law that also impose standards of speech on the Internet and other computerbased communications networks more restrictive than those imposed on books, newspapers or
other printed material. Should these provisions survive, there is concern that libraries could face
criminal sanctions for making their collections available on-line, and that the reporting of news

stories could at some future time be chilled as newspapers and magazines increasingly offer online versions.
That would be a ridiculous outcome. There is simply no legal or practical justification for this
dichotomy, which would have the effect of reducing the otherwise lawful material available on
the Internet to a level judged appropriate for children, something the Supreme Court has already
said should not be done.
At hearings just concluded in Philadelphia, the judges were given a crash course on how the
Internet actually works. They learned that while on radio and television children can stumble
across inappropriately explicit material simply by turning the set on, computer users must
actively seek out the material they want to view. The judges were also given a demonstration of
readily available -- and rapidly improving -- software that parents can now use to block
transmissions they do not want their children to see. That is a far better solution, practically and
constitutionally, than punishing those who transmit explicit material.
The critical task now for the newly educated three-judge panel is to recognize the large threat to
free speech the statute poses, and to develop an approach to speech on the Internet that gives
maximum room for the free exchange of ideas.