================================================================= ALAWON Volume 5, Number 34 ISSN 1069-7799 June 14,1996 American Library Association Washington Office Newsline In this issue: (194 lines) COMMUNICATIONS DECENCY ACT REJECTED BY COURT: LIBRARIANS APPLAUD CDA RULING _________________________________________________________________ COMMUNICATIONS DECENCY ACT REJECTED BY COURT: LIBRARIANS APPLAUD CDA RULING The American Library Association, library advocates and others involved with the Citizens Internet Empowerment Coalition (CIEC) welcome the decision of a federal district court panel declaring the new Communications Decency Act unconstitutional saying the ruling protects First Amendment rights, the public's open access to information and the librarians that provide the access. ALA is the lead plaintiff in a suit filed by the CIEC, a coalition of organizations which also includes online providers, publishers, parents and other public interest groups. The suit challenged the Act on the grounds that it is overly broad and so vaguely worded that it would subject librarians and other members of the public to criminal prosecution for posting materials online that are legal in other media. ALA Executive Director Elizabeth Martinez said after the court decision was released on June 12, "This is a historic case. The judges have acted to protect public access to information in this new and important media." Martinez said she was impressed by the open-mindedness of the judges and "their willingness to learn more about the Internet and how it works." The suit, filed in Philadelphia by CIEC, was consolidated with a similar suit brought by the American Civil Liberties Union. The government is expected to file an appeal that could be heard as soon as this fall by the U.S. Supreme Court. "We are ecstatic. Librarians can continue to provide ideas to the public regardless of the format, without concern about fines or jail terms," said Judith Krug, head of ALA's Office for Intellectual Freedom (OIF). "This is a victory for anyone who uses public libraries." The role of ALA in organizing the coalition was broadly acknowledged. OIF was especially instrumental in involving Bruce Ennis, longstanding counsel for the Freedom to Read Foundation, as the lead attorney. BACKGROUND: Under the Communications Decency Act, passed in February as part of the Telecommunications Reform Act of 1996, any person who knowingly sends or displays materials over the Internet that could be interpreted as "indecent" or "patently offensive by contemporary community standards" could be imprisoned for up to two years and fined up to $250,000. Attorneys for the plaintiffs argued that the law would curtail freedom of speech by restricting all communication on the Internet to a level appropriate for children and would unfairly subject libraries, colleges and other educational institutions to criminal prosecution for distributing great works of art and literature, health, science and other materials that some might find offensive. Government attorneys argued that the court should read the Communications Decency Act to apply only to hardcore sexually explicit material. Other plaintiffs included America Online,Inc.; the American Booksellers Association; American Society of Newspaper Editors, Apple Computer, Association of Publishers, Center for Democracy and Technology, Prodigy Services Company, Wired Ventures,. Ltd. This three-judge panel thoughtfully examined and ultimately understood the unique nature of this new medium. Judges Dolores Sloviter, Stewart Dalzell, and Ronald Buckwalter each wrote opinions to articulate the panel's unanimous decision. The judges came to understand the global, interactive and open nature of the Internet, and ruled in favor of the free flow of information that is both the tradition of our democracy and cyberspace. The court also was aware that this case was being watched around the world and sets a precedent for Internet regulation by other countries which would like to censor cyberspace. In concluding her statement, the panel's chief judge, Dolores Sloviter, wrote:..."the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgement 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 Dalzell noted in his opinion: "...the Internet deserves the highest protection from government intrusion..." Elsewhere he added "...the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation." Judge Buckwalter wrote: "...I find that current technology is inadequate to provide a safe harbor to most speakers on the Internet...I continue to believe that 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." This was the first full court appeals panel hearing regarding the Internet and is considered precedent setting, making the Internet at least as protected as the print medium, if not more so. It became clear to the court that this law could not protect children from inappropriate material on the Internet in a meaningful, enforceable way and that the law was vague and over broad. Another reason that ALA participated in the litigation was that the law made no distinction between librarians, professors, museum curators, newspapers and other providers of legitimate, educational material and the true purveyors of material inappropriate for children. CIEC emphasized that new technology demonstrates a far more effective solution to the problem of content on the Internet than this or any other law ever could. The judges were shown parental control software that effectively blocks unwanted material in e-mail, news groups and Web sites. The judges recognized these technologies in their opinions. For example, witnesses had explained the new Platform for Internet Content Selection (PICS), that will be a basis for a variety of rating systems. The technology is available now and is beginning to be used. TEXT AVAILABLE: The text of the judges ruling in the Communications Decency Act suit is posted at http://www.cdt.org/ciec/ciec-info@cdt.org MEANWHILE IN WASHINGTON... Response came quickly. Senator Patrick Leahy (D-VT), a strong opponent of the CDA in the Senate, was pleased with the court's decision, commenting that the Constitution could not be "trampled" to "make political points back home." Representative Rick White (R-WA), who had opposed the "indecency" provision in the CDA, predicted further legislative work on the act after the Supreme Court decision. "That's when we go back to the drawing board and do something that works," he said. But President Clinton was quoted as saying: "I remain convinced, as I was when I signed the bill, that our Constitution allows us to help parents by enforcing this Act to prevent children from being exposed to objectionable material transmitted through computer networks." Senator James Exon(D-NE), sponsor of the Communications Decency Act, was hopeful that "reason and common sense will prevail in the Supreme Court" as he looked to the higher court overturning this decision. Dee Jepsen, president of "Enough is Enough" said "Once again the court system has failed the nation's parents in their struggle to protect their children as they use newly available computer technology." Bruce Taylor, chief counsel for the National Law Center for Children and Families contended "I don't consider this a setback." But the enthusiasm for the court decision could not be dampened by these opponents. Supporters in the Citizens Internet Empowerment Coalition were celebrating a decision that affirmed that the "Internet deserves the broadest possible protection." Perhaps the enthusiasm at winning could be best described in attorney Ennis' quote: "It's a spectacular victory for free speech and the Internet." There will inevitably be other legislative and legal battles in this arena. More to come. _________________________________________________________________ ALAWON is a free, irregular publication of the American Library Association Washington Office. To subscribe, send the message "subscribe ala-wo [your_firstname] [your_lastname]" to . ALAWON archives gopher.ala.org; select Washington Office Newsline. Web page HTTP://www.ala.org/alawashington.html. ALA Washington Office 202.628.8410 (V) 1301 Pennsylvania Ave., NW, #403 202.628.8419 (F) Washington, DC 20004-1701 Lynne E. Bradley, Editor All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. =================================================================