Successful plaintiffs in Thursday's US Supreme Court ruling that the Communications Decency Act (CDA) was unconstitutional have claimed it as a decisive win for the future of cyberspace.
"This decision represents the legal birth certificate of the Internet," says Bruce Ennis, lead attorney for the Citizens Internet Empowerment Coalition, whose challenge to the CDA was combined with that of the American Civil Liberties Union (ACLU). "The court's opinion is a primer for future attempts to regulate cyberspace ... because it makes clear that the Internet is not like broadcast."
The CDA, passed by the US Congress in February 1996, made it a crime to distribute indecent material to minors over the Internet. Today the Supreme Court voted 7 to 2 that the CDA was unconstitutional. In doing so the Court explicitly rejected the U.S. Justice Department's contention that the Internet was more akin to broadcast than print and was thus more susceptible to regulation.
One plaintiff likens the importance of the court's decision to the charter of liberties which English barons forced King John to recognize in 1215 at Runnymede.
"We will see this as a Magna Carta not just for free speech but for the structure of online communications," says Donald Haines, legislative counsel for the ACLU. "What was at stake in this decision ... was whether cyberspace was going to remain a genuinely democratic medium."
One of the court's major objections to the CDA was its imprecision, including the terms "indecent" and "patently offensive." For example, the court expressed concern that a parent who sent his 17-year-old college freshman information on birth control via email could be incarcerated if the college town's community found it offensive, even though the parent, child, nor anyone in their home community didn't.
Some observers think the court's objection to this imprecision of the terms might open the door for Congress to redraw more tightly crafted legislation, so-called "Son of CDA" legislation.
"We expect Congress to attempt to regulate this again," says David Banisar, staff council for the Electronic Privacy Information Center, a Washington, D.C.-based public interest group.
But others says that further congressional action is unlikely, given what they view as the essentially political interest most members of the assembly had in the CDA.
"As a practical matter Congress could go back and try to write a cleaner statement [but] I would be very surprised if Congress tried to take this issue up again," says Michael Greenberger, a lawyer with Shea & Gardner in Washington, D.C., who argued a cable indecency case before the Supreme Court earlier this year. The CDA "was a popular issue passed in time for the 1996 elections" but the court's decisiveness makes further action unlikely, he says.
Another observer similarly underscores the political motivation of Congressional actions.
"Members of Congress don't really care about the court," says Jack Beermann, a professor of law at Boston University. "They want to be able to tell constituents 'I voted to take obscenity off the Internet'."
Beermann likens congressional interest in the CDA to past legislation introduced to make burning the US flag a crime. "Like with flag burning, Congress passed a statute they knew would be unconstitutional but they did it anyway because they got votes for it," he says.
A copy of the Supreme Court's decision can be found at http://aclu.org/.