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Free speech on the Internet: Where old freedoms meet new media
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

U.S. Supreme Court Justice Potter Stewart offered us the most succinct definition of obscenity: “I know it when I see it.”

A Supreme Court decision issued days ago suggests that the justices may know it when they see it, but they’re not entirely sure what to do about it.

In reviewing the constitutionality of the Child Online Protection Act — a law designed to protect children from being exposed to harmful material on the Internet — the court issued one of its most fragmented decisions in years.

Basing its ruling on very narrow grounds, the court refused to rule on the constitutionality of the law. Instead, it punted the case back to a federal appellate court to wrestle with some tough issues.

At the heart of the case is how far government can go in restricting Internet content in the name of protecting children. It’s no surprise that this area of law is complex and difficult. After all, courts are attempting to apply the principles of the First Amendment to the Constitution — written in pen on parchment more than 210 years ago — to the Internet, which offers unprecedented, unregulated and immediate access to unlimited information, images and entertainment.

Congress passed the Child Online Protection Act after the Supreme Court struck down the Communications Decency Act of 1996, a badly drafted law that barred the sending of “patently offensive” messages to minors. The law was poorly written and overbroad; the court struck it down in a 7-2 vote.

Taking a cue from the decision, Congress drafted a more focused law. It prohibited material that is “harmful” to minors and focused only on commercial content posted on the Web.

No one advocates Internet content that would truly be harmful to children, but opponents of the Child Online Protection Act say the law would also chill speech that is protected under the First Amendment.

In joining the litigation against the law, online magazine Salon editorialized: “If this law stays on the books, sooner or later some enterprising district attorney in a conservative community will go after a Web site with birth-control information, or a publisher of non-pornographic information for teens about homosexuality, or a Web magazine like ours that chooses to publish personal essays about sex.”

In cases involving freedom of speech, obscenity and the Internet, several factors come into play:

  • Truly obscene material is not protected by the First Amendment. Congress can ban obscenity for adults as well as children.
  • Content of a sexual or suggestive nature that would not be obscene for adults can sometimes be regulated by government if directed toward children. The Child Online Protection Act seeks to outlaw content that is “harmful” to minors, with sexual content and appeal, and without redeeming social or scientific value.
  • A jury trying to determine if the material is harmful to minors would apply “contemporary community standards,” striving to reflect the values of the average person in a particular community.

The real challenge, of course, is defining “community standards.” It’s an easier concept when dealing with more traditional media, such as magazines. A publisher of a magazine would be expected to understand the standards of communities in which he distributes his publication. If his publication is “obscene” and violates community standards in a specific town, he can be held liable for distributing the publication in that community.

How can that principle possibly apply to the Internet? If the magazine publisher posts content on the Internet that violates the standards of one small, close-knit community, he could be prosecuted under the Child Online Protection Act, even though he never specifically sent the content to that community, and despite the fact that the content may not violate community standards in any other town in the United States.

In the words of Supreme Court Justice Stephen Breyer, this would “provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the nation.”

Breyer and Justice Sandra Day O’Connor both suggested that we need a new national standard to govern Internet content. Justice Clarence Thomas, on the other hand, argued that community standards are appropriate, and that the test for redeeming social or scientific value would reflect national standards.

Finally, eight members of the Supreme Court simply found that the use of community standards wouldn’t necessarily invalidate the Child Online Protection Act. So now the legislation has been sent back to an appellate court, which will take a second look at this issue and a number of other potentially unconstitutional elements of the law. In time, the Supreme Court will have to grapple with it again.

The Supreme Court’s decision offers few answers, but reminds us once again of the challenge of applying our oldest principles to our newest media. In the end, freedom of speech on the Internet will depend on both justices and juries, and not necessarily in that order.

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