Newsreal: The CDA is dead. Is Net censorship?

The Supreme Court struck down one badly written, overly broad censorship law. But there's more where that came from.


Scott Rosenberg
June 27, 1997 11:00PM (UTC)

a few quick cuts from the U.S. Supreme Court finally put an end to the slow death-throes of the Communications Decency Act Thursday morning. Spurred on by bad media coverage and bad politics, the law -- tacked on at the last legislative minute to the 1996 Telecommunications Act -- sought to impose unprecedentedly vague, broad and punitive limits on free expression across the Internet, under the banner of protecting children and restricting child pornography online (which other tough laws already ban). Suspended almost immediately after it was signed into law, the CDA was never enforced, and a landmark Federal appeals court decision last year marshaled persuasive arguments in favor of free speech online.

Most legal experts never thought the CDA could pass constitutional muster. And in fact all nine Supreme Court justices voted to strike it down (though two wrote a partial dissent that would leave more room for restrictions on the Net). But it's certainly a relief for Web publishers and private citizens to know that the Supreme Court agrees they should not be jailed or fined for presenting content that some district attorney in Tennessee thinks is "indecent," or for using four-letter words in a chat room. "The CDA," the court ruled, "threatens to torch a large segment of the Internet community" -- but no longer.

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Internet activists understandably greeted the ruling with jubilation: "It's like winning the World Series. Let's go to Disneyland," Net pundit Dave Winer beamed to his DaveNet mailing list. At a rally in San Francisco's South Park, epicenter of the new media industry, champagne corks popped and Electronic Frontier Foundation counsel Mike Godwin called for dancing in the streets.

There is at least one big reason for the anti-CDA forces to cheer: Like the appeals court before them, the Supreme Court majority held that the Internet is fundamentally different from the broadcast media and deserving of the full First Amendment protection that print publications enjoy. This was not a foregone conclusion; the distinction continues to elude many journalists, politicians and "decency" activists.

"Unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a 'scarce' expressive commodity," the majority opinion by Justice John Paul Stevens argues at one point. Elsewhere, it notes that "the Internet is not as 'invasive' as radio or television."

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Still, though the Supreme Court ruling may have put a stake through the heart of the CDA, it hardly marks the end of efforts to regulate the Net. Before the "netizen" caravan leaves for Disneyland, here are some rain-on-the-parade issues to ponder:

"Facial overbreadth"

One reason the CDA was so easy to defeat is that it was a terribly written law. Even a judge who believed that pornography on the Net ought to be strictly controlled was likely to have problems with its vague and overly broad language -- what the Supreme Court ruling's legalese refers to as "facial overbreadth."

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It will be quite simple for the CDA's backers to return to the drawing board and write a new law that's somewhat narrower yet still exercises a significant chilling effect upon online speech. Don't be surprised if Son of CDA turns out to be harder to kill than its parent. Meanwhile, cousins of the CDA are proliferating at the state level, where legislatures are taking a crazy-quilt approach to regulating Internet expression.

Push backfire

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We can be grateful that the highest court in the land recognizes that the Net is different from TV. Meanwhile, however, executives across the land are spending vast amounts of money to try to remake the Net into something more like TV -- whether by using "push" technologies to provide more broadcast-style content delivery or by devising "convergence" schemes to make digital TVs more like computers and network computers that are more like TVs.

If the convergence prophets get their wishes, and the Internet evolves into a TV-like mass-entertainment medium, don't be surprised if the legislatures and courts look more kindly on new CDA-like schemes to control what can be said online.

SurfWatch snafus

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The availability of commercial "filtering" tools that allow individual users to block out Web sites known to contain porn, like SurfWatch and NetNanny, helped persuade the courts that the CDA was unnecessary. If people could shield themselves from undesirable content, who needed government intervention?

But these filters cause almost as many problems as they alleviate. They're as frustrating to install and use as most commercial software, they're not foolproof at filtering actual porn and they often block sites that offer health advice or debates on public policy that happen to include suspect keywords like "sex" or "rape." Meanwhile, rating systems that are supposed to help guide Net users away from content that might offend them are not yet widely in use and also subject to misuse.

"Tools, not rules" is a great slogan. But lawmakers may never be happy with the kind of imperfect tools that the computer industry provides. When it comes to grandstanding issues like "protecting children from pornography," most politicians are absolutists. President Clinton, for his part, said in a statement released Thursday, "We can and must develop a solution for the Internet that is as powerful for the computer as the V-chip will be for the television." The defeat of the CDA, in other words, only means that efforts to control the Net will heat up on other fronts.

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Headline hustles

If recent coverage is any indication, the Net may win its battle in court but lose its war in the media. While federal jurists are displaying a growing understanding of the nature of the Internet, newspapers, magazines and TV networks continue to demonize the online world as a den of druggies who will "seduce" your kids, or a "frontier" where prison inmates will steal your social security number to harass you. In the mainstream media, the standard shorthand to describe the CDA is now "the Net smut law," which is not only inaccurate but paints its opponents in a ludicrously unfair light.

It was a piece of awful journalism, Time's distorted and sensationalist "Cyberporn" cover story of 1995, that helped shape the hysterical climate in which the CDA first germinated. As long as the press continues to beat this drum, no Supreme Court decision, no matter how definitive, will be able to eliminate the specter of censorship.


Scott Rosenberg

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

MORE FROM Scott Rosenberg


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