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A Mixed Bag For Free Speech

Bill Schultz

May, 2002, has been a big month for freedom of speech on the Internet. Ever since the United States Supreme Court dropped its gavel on its decision that the Communications Decency Act of 1996 was a violation of the First Amendment (in June, 1997), Congress has been looking for "wiggle room" in that decision so that it could get through some sort of smut-prevention law to protect children from looking at pornography. This month, there is good news and not-so-good news.

On the good news front, a special 3-judge panel of the 3rd Circuit found that the latest smut-suppression law passed by Congress, the Children's Internet Protection Act (CIPA) did not meet Constitutional muster. As it was reported elsewhere, this special panel of judges found that:

Any public library that adheres to CIPA's conditions will necessarily restrict patrons access to a substantial amount of protected speech in violation of the First Amendment.

The Internet Infidels web site, The Secular Web, is among the web sites that is blocked by the filtering software used by AOL and many other Internet Service Providers. While it is not possible to guess exactly which blocking service would have won the contract for library blocking software, these judges found that virtually all of the available options had no realistic way to block all (or even most) pornography from children while, at the same time, allowing both children and adults to access non-prohibited content. In my view, the blocking of The Secular Web by many filtering services is a perfect example of exactly the sort of impermissible blocking that the 3-judge panel was referring to. Accordingly, I must applaud this panel for reaching the exactly correct result and striking down this clearly overbroad law.

The not-so-good news comes from the United States Supreme Court itself. It refused to affirm the striking down of the Children's On-Line Protection Act (COPA) on the ground that COPA mandated the use of "community standards" of decency when deciding what is "indecent," what is "obscene," and what is permissible for children to view (the three classes of material with which all of these statutes attempt to deal). While this is consistent with other laws regarding pornography, and is thus not really surprising, it does boggle the mind a bit to contemplate just how little material would be available, even to adults, if the Internet were subjected to the decency standards of the most conservative communities in the United States.

However, the Supreme Court let stand the injunction against enforcement of COPA, and it returned consideration of that law back to the 3rd circuit where the 3rd circuit appellate judges would be able to consider several other grounds for finding that COPA was unconstitutional. Most legal scholars whose opinion I have read fully expect that the 3rd circuit will easily find some other ground(s) for striking COPA down, and that the Supreme Court will eventually affirm at least one of those other grounds. This is at least implied in the fact that the Supreme Court let the injunction against enforcement stand while the lower courts continue to consider these other issues.

But it is still early in the current Congressional session, and I have little doubt that Congress will decide to waste even more taxpayer (and private) money by passing yet-another attempt at regulating what all of us can access on the Internet. If it were simply a matter of filtering software, the many commercially available packages would make moot any rational legal requirements. But of course, its really about what the Radical Religious Right wants to be able to control: the decisions as to what all of us are able to view or not view not only on the Internet but on other public media as well. As an openly non-theistic purveyor of information, I'm sure that the Internet Infidels are in the sights of these religious censors. And I'm just as certain that, so long as we continue to have the present members of the Supreme Court sitting there in Washington DC, they will not allow clearly protected speech to be censored. But how long will it be before one of these justices either dies or retires? That is one heck of a good question, to be immediately followed by the question of exactly who gets to make the appointment of a replacement. This is only the first battle of a decades-long culture war that, as things sit, we Infidels might rightly feel that we are doomed to lose.

== Bill


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