New decency act court case

[Robin Powell <rpowell@algorithmics.com>]

>From the Nando Times.  Formatted to my screen... Sorry about that.



U.S. JUDGES DECLARE INTERNET DECENCY LAW UNCONSTITUTIONAL
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Copyright �1996 Nando.net
Copyright �1996 Reuter Information Service

NEW YORK (Jul 29, 1996 11:35 p.m. EDT) - Federal judges Monday blocked enforcement of a new law aimed at regulating
indecent material on the Internet because it bans constitutionally protected speech between adults.

In its ruling, judges from the Southern District of New York granted an injunction sought by the editor of The
American Reporter, an on-line newspaper, who argued that the law was too broad.

The decision followed a ruling in June by a Philadelphia panel that also found a key part of the law to be
unconstitutional. That ruling went farther than the one issued Monday by finding the law too vague as well as too
broad.

The Computer Decency Act of 1996 was passed overwhelmingly by Congress as part of the broader Telecommunications Act
of 1996 and was signed by President Clinton on February 8.

Because lawmakers expected immediate constitutional challenges they included provisions allowing swift appeals first
through special panels and then directly to the U.S. Supreme Court.

A key portion of the law, known as 223(d), makes it a crime to make indecent material available on computer systems
that are accessible to children. The law provides for prison terms of two years and an $250,000 fine if indecent
material is transmitted to minors.

The New York panel said government attempts to limit offensive material to children would also place unacceptable
restrictions on adults.

It said the section not only regulates how pornographic material is sold and advertized, but "how private
individuals who choose to exchange certain constitutionally protected communications with one another can do so.

"The question presented is whether our Constitution tolerates this level of governmental intrusion into how adults
speak to one another ... We reach the inescapable conclusion that 223(d) will serve to chill protected speech."

The panel, which comprised Jose Cabranes of the Second Circuit Court of Appeals and District Judges Leonard Sand and
Denise Cote, discussed software designed to enable parents to limit children's exposure to inappropriate material.

"Indecent content on the Internet ordinarily does not assault a user without warning: a child cannot gain access to
Internet content with the touch of a remote control and while accidental viewing of indecent content is possible,
there is no evidence in this record to suggest that it is likely," the panel wrote.

It said that while parents can take steps to restrict access by their children, content providers have no way of
guaranteeing that indecent material will not reach a minor.

The judges said that the only way a content provider would comply with the section would be to refrain from sending
out the objectionable material.

"Because adults would lack means of engaging in constitutionally protected indecent communications over the Internet
without fear of criminal liability, the statute would unquestionably be unconstitutional," the panel said.