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A Mixed Bag For Free Speech

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

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

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