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CDA Declared Unconstitutional

Magazine article Editor & Publisher

CDA Declared Unconstitutional

Article excerpt

The Internet should have just as much First Amendment protection as a newspaper, a panel of judges has ruled in Philadelphia.

In a closely watched challenge to the Communications Decency Act (CDA), the judges ruled 3-0 that this section of the Telecommunications Act of 1996, signed into law earlier this year, was unconstitutional and they granted a preliminary injunction against its enforcement. Criminal penalties, as proscribed in the law, include fines up to $250,000 and two years in prison.

"I conclude inexorably . . . that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults," wrote Chief judge Dolores K. Sloviter of the U.S. Court of Appeals for the 3rd Circuit.

"It would appear that the extent of the abridgment of the protected speech of adults that has been shown the CDA would effect is too intrusive to be outweighed by the government's asserted interest, whatever its strength, in protecting minors from access to indecent material," Sloviter stated.

The First Amendment, she continued, "should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations, as well."

The judges' decision came after two lawsuits, which later were combined, challenged the act. One is known as the American Civil Liberties Union, et al. vs Janet Reno, Attorney General of the United States, and the other as the American Library Association, et al. vs. United States Department of Justice.

In all, there were nearly 50 plaintiffs and numerous amici curiae (friends of the court) briefs, many from newspaper and journalists associations.

All three of the judges issued separ-ate opinions on their unanimous ruling.

Judge Ronald L. Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania found that the terms "indecent" and "patently offensive," as used in the statute, were so vague as to be unconstitutional.

"If the government is going to intrude upon die sacred ground of the First Amendment and ten its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer," Buckwalter wrote.

Although Buckw-alter found the present act unconstitutional, he noted that, "it is too early in the development of this new medium to conclude that other attempts to regulate protected speech within the medium will fail a challenge. . . . I specifically do not find that any and all statutory regulation of protected speech on the Internet could not survive constitutional scrutiny."

Judge Stewart Dalzell, also from the district court, noted that, "The government may only regulate indecent speech for a compelling reason, and in the least restrictive manner."

Dalzell wrote that he found the CDA unconstitutional, "and that the First Amendment denies Congress the power to regulate protected speech on the Internet. . . ."

"To understand how disruptive the CDA is to Internet communication, it must be remembered that the Internet evolved free of content-based considerations," he added. "The content of the data was, before the CDA, an irrelevant consideration."

The act, Dalzell wrote, would "undermine the substantive, speech-enhancing benefits that have flowed from the Internet."

The diversity of content would diminish, the economic costs of compliance would drive out potential speakers, and the parity among speakers would be gone, he noted.

"Perversely, commercial pornographers would remain relatively unaffected by the act, since we learned that most of them already use credit card or adult verification anyway," Dalzell added.

The "government's asserted failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants, Dalzell wrote. …

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