The Net's Good Day in Court

Judges Log On, Listen in and Throw Out Indecency Law

Published June 12, 1996 10:10AM (EDT)

A vast virtual sigh of relief spread from node to node across the Net when a three-judge Federal panel handed down its decision this morning in Philadelphia granting a preliminary injunction against the Communications Decency Act (CDA). The panel declared the CDA's provisions of criminal penalties for online communications of "indecent" and "offensive" material to minors to be "unconstitutional on their face."

Internet denizens have always suspected that government officials understand very little about their complex, rapidly evolving new medium. As recent Congressional hearings -- like those that produced the CDA -- have made abundantly clear, most legislators are clueless when it comes to the basics of cyberspace; to many, a simple concept like a link remains a bafflement. It's as if Congress set out to pass laws to regulate speech over the telephone without understanding how to dial a number -- or to control book distribution without knowing how to read.

What's extraordinary about today's decision is that, for the first time, an arm of the federal government has "gotten" the Internet. The trio of judges -- unlike many of their Congressional colleagues -- clearly paid attention to the testimony offered by the many plaintiffs, led by the American Civil Liberties Union and the American Library Association, explaining the unique origins, nature and culture of the Net. The "Findings of Fact" in the decision's opening section outlined what the Internet is and what people do with it in surprisingly clear, readable and accurate language (the only mistakes were trivial, like referring to "Virtual Communities" author Howard Rheingold as "Harold Rheingold").

Because computer monitors look like television sets, it has been easy for advocates of Net censorship to adopt a broadcast analogy and propose regulating online expression under the same principles that have long applied to TV and radio. After all, if you "say something" on the Internet, it's beamed all over the world -- just like a broadcast network, but with an even farther reach.

Judge Stewart Dalzell's opinion -- the most philosophical of the three issued -- explicitly and hearteningly rejects that line of thinking, embracing the Internet as a unique medium demanding its own unique treatment by the government. Its uniqueness, Dalzell argues, lies less in its broad reach than in its open access:

the Internet has achieved, and continues to achieve, the most participatory
marketplace of mass speech that this country -- and indeed the
world -- has yet seen. The plaintiffs in these actions correctly
describe the "democratizing" effects of Internet communication:
individual citizens of limited means can speak to a worldwide
audience on issues of concern to them. Federalists and Anti-
Federalists may debate the structure of their government nightly,
but these debates occur in newsgroups or chat rooms rather than
in pamphlets. Modern-day Luthers still post their theses, but to
electronic bulletin boards rather than the door of the Wittenberg
Schlosskirche. More mundane (but from a constitutional
perspective, equally important) dialogue occurs between aspiring
artists, or French cooks, or dog lovers, or fly fishermen.

Dalzell's judicial colleagues, Dolores Sloviter and Ronald Buckwalter, based their decisions on narrower issues -- mostly on the vagueness of the indecency standard and the statute's overly broad language. Sloviter did comment that "Internet communication, while unique, is more akin to telephone communication...than to broadcasting...because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online."

But Dalzell went further: He looked into the heart of the Net, saw it for what it is, and saw how radically the CDA could wreck it by disrupting the very aspects of it that make it valuable and separate it from its old-media predecessors:

The economic costs associated with compliance with
the Act will drive from the Internet speakers whose content falls
within the zone of possible prosecution. Many Web sites,
newsgroups, and chat rooms will shut down, since users cannot
discern the age of other participants. In this respect, the
Internet would ultimately come to mirror broadcasting and print,
with messages tailored to a mainstream society from speakers who
could be sure that their message was likely decent in every
community in the country.

The CDA will also skew the relative parity among
speakers that currently exists on the Internet. Commercial
entities who can afford the costs of verification, or who would
charge a user to enter their sites, or whose content has mass
appeal, will remain unaffected by the Act. Other users, such as
Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web
sites before the CDA were as equally accessible as the most
popular Web sites, will be profoundly affected by the Act. This
change would result in an Internet that mirrors broadcasting and
print, where economic power has become relatively coterminous
with influence.

Quoting Justice Oliver Wendell Holmes' famous defense of "free trade in ideas," Dalzell noted that the chief objection to that libertarian vision of free speech has been to point out that the media marketplace tends to get dominated by "a few wealthy voices." Even the imperfect realization of that marketplace in traditional print media has warranted the broadest kind of protection under the First Amendment. The Internet in many ways more closely realizes this ideal; surely, Dalzell concludes, it "deserves the broadest possible protection from government-imposed, content-based regulation."

The ACLU couldn't have asked for a more ringing endorsement of their arguments. Mike Godwin, counsel for the Electronic Frontier Foundation, another plaintiff in the suit, commented: "We batted this one out of the park, there's no question of that. We got everything we wanted and more. It was remarkably unambiguous. I think the judges deliberately crafted their separate opinions so there would be no ambiguity about the strength of the principles."

The telecommunications reform law that the CDA is a part of provides for rapid appeal of constitutional challenges to the Supreme Court. If the Justice Department appeals, as it has previously said it would, the CDA is likely to wind up there by the spring of next year, if not sooner, according to Godwin. Supreme Court watchers note that the increasingly libertarian bent of the current Court makes it likely that today's decision might be upheld on appeal -- and possible that an appeal might not even be heard.

Advocates of laws controlling Net expression aren't likely to throw in the towel, though, which means that the question will wind up back in the hands of Congress and the state legislatures. The ACLU and its allies may need to provide a few more lessons in just how the Net works. "Congressman, this is a link..."

Law's advocates disappointed at ruling

Salon spoke to Donna Rice Hughes, marketing and communications director of Enough is Enough, a non-profit organization devoted to "making the Internet safe for children."

"We're not surprised. The ACLU strategized very well when they chose this particular court to hear their appeal. And it's really pretty typical for prosecutions under new laws of this nature to be held up until all the legal and technical issues are hashed out on appeal.

Obviously we'll encourage the Justice Department to appeal directly to the Supreme Court -- as the legislation provides -- and we're hopeful the Supreme Court will uphold the CDA's indecency provisions, because the Supreme Court set forth an indecency standard to begin with when it applied it to the broadcast medium; and they have said on numerous occasions that the indecency standard is not overbroad, that it is constitutional and it is not vague.

I think more importantly what the net result of all this is: We have in existence now in every state of the union a harmful-to-minors law, which protects children from adult pornography at the state level. The indecency provisions of the CDA were designed to have one clear-cut standard that would apply to the Internet that would make it easier for the online community to comply. This ruling means we go back to 50 different state laws! Think of the difficulty, not only of compliance, but of enforcement. Also, there were important exemptions in the CDA protecting online service providers from being liable for material that someone would access through their service. Those exemptions are not in the state laws.

So, we will encourage the states to prosecute those laws that are on the books. Our ultimate goal is to protect children online. We believe the most effective way to do that is have the indecency standard implemented at the federal level."

Concrete gardens

As the world grows ever more urban, sustenance must come from inside the city limits


Reports coming out of the Habitat II conference in Istanbul this week paint a potentially grim future for our increasingly urbanized world. Experts at the United Nations-sponsored conference are looking hard at data projections about what everyday life will be like in the next millennium.

Most telling is that by 2025, five billion people -- two-thirds of humanity -- will live in cities. The scary question is: where will the enormous amounts of food needed to feed them come from? The answer, according to many experts: the cities themselves. As we move into the next century, they say, more and more urban dwellers will consume food grown within a mile of their homes, and agriculture will become increasingly an urban preoccupation.

Migrants and refugees who have settled in cities throughout the world share a common insight: as horrible as their new urban lives may be, rural living has become virtually impossible. The mass exodus to the cities confirms what environmentalists and food experts have been saying for two decades: the world's rural regions are increasingly unable to provide enough food for its exploding population.

The stark reality is that too much of the world is overdependent on the large-scale agriculture of just five countries -- the U.S., Canada, Australia, Argentina and Brazil. As Business Week recently reported in a cover story, a mushrooming grain crisis in these countries could soon make matters worse by cutting hungry countries off from much of their desperately-needed food imports.

There is hope, however, and it is found in technology. Within energy research circles there is growing excitement that the world's energy needs (expected to increase 1.6 times by 2015) could be met without polluting the atmosphere or further degrading the earth. The optimists are especially looking to new finds of vast reserves of non-polluting natural gas and the slow-but-steady comeback of nuclear power as underpinnings for urban agriculture.

These and other forms of technology could be applied to the cities' trove of unused resources, the mounds of garbage and nutrient-rich wastes which could be used as feed for the megatons of meat and fish that might consequently be harvested within city limits.

In a recently published report titled "Urban Agriculture," the UN
Development Program
documents how urban farming is spreading in every part of the world. In the U.S., for example, 40 percent of the dollar value of food output in 1990 came from metropolitan urban areas -- up from 30 percent in 1980. In 1990, 65 percent of Moscow's economically struggling families raised their own food, up from 20 percent in 1970. There are 80,000 community gardeners in Berlin, with 16,000 on the waiting list.

But it is in the non-Western world that urban agriculture is most effectively practiced. China has had a tradition of urban farming for centuries, and in 1960
its government laid down a specific strategy to achieve urban self-sustenance. Indonesia's small island of Java feeds a hundred million people largely with locally grown food. The super-modern city-state of Singapore is entirely self-reliant in meat production, consuming some 140 pounds per person per year.

With fewer cities, Africa until recently had little experience with
urban farming. Yet it may be largely thanks to newer city farms, run by women, that Africans have survived the extraordinary political upheavals of the last decades. As foreign investors become aware of Africa's mushrooming revival, urban farming will play an increasingly important role in the continent's development.

East Asians have long excelled at urban agriculture for several reasons. First, they are willing to plant every unused square foot of land. Second, they are willing to use any and all urban wastes for fertilizer. Third, farming is an ingrained family and community chore, much as it was when people lived in traditional villages. The shared task of raising food has another effect -- it helps keep families and communities together, despite the pressures of modern urban life. East Asian governments, recognizing these social and economic benefits, are highly supportive of urban farming.

But such governments are still in the minority. The worldwide turn to urban agriculture will only work with state-of-the-art technology and large-scale organization. Hopefully, Habitat II may begin to focus the attention of other governments on the ways of creating a sustainable urban future.

) Pacific News Service

Quotes of the day

Out of sync

"There are certain subjects you just cannot deal with in a swimming pool."

-- Haim Musicant, executive director of the Council of Jewish Institutions in France, on the uproar caused by the French Olympic synchronized swimming team's routine based on "Schindler's List." The routine, set to the movie's soundtrack, included goose-stepping in the pool and an imitation of Jewish women herded into the gas ovens. (From "Sunk So Low: A water ballet about the Holocaust? In France, yes," in the June 17th issue of Time magazine).

Your sewer department needs you!

"Noses wear out. We need fresh ones all the time."

-- Samuel Murray, who runs the San Francisco Public Works Department's "Odor Patrol," comprised of citizen volunteers who sniff the city's aging sewers. From: "There They Go, Sticking Their Noses In the City's Business," in Wednesday's Wall Street Journal.

By Scott Rosenberg

Salon co-founder Scott Rosenberg is director of He is the author of "Say Everything" and Dreaming in Code and blogs at

MORE FROM Scott Rosenberg

Related Topics ------------------------------------------