Internet regulation efforts rise in wake of Decency Act demise
A leading civil liberties attorney recently termed the Internet-regulation bills before the Tennessee General Assembly the “Son of CDA,” comparing the bills to the federal Communications Decency Act of 1996.
That law criminalized the transmission of “indecent” and “patently offensive” speech over the Internet. But in Reno v. ACLU last year, the U.S. Supreme Court rejected indecency as too vague a standard.
“We're seeing these bills all over,” said Ann Beeson, national staff attorney for the American Civil Liberties Union and the lead attorney against the 1996 law in the Reno case. “There's another serious one in Illinois and one in Kansas. We think there are consistent problems in the Tennessee bills like on most following CDA.”
State Sen. Coulter “Bud” Gilbert and Rep. Tim Burchett, both Republicans from Knoxville, introduced bills in the General Assembly in February to require state public libraries and schools to install software filters on computers to block access to adult-oriented sites on the Internet.
The bill also makes companies providing Internet service liable for obscene material, child pornography and related materials sent to minors.
“The main reason I've sponsored this is because I don't like government funds providing access to children for pornography,” Burchett said. “It's a different issue than if it were in someone's house.”
Burchett said he knows there will be numerous challenges if the bill passes. But he said this one should hold up because its restriction standards are based only on what is “harmful to minors.”
Beeson said the Tennessee legislation is reminiscent of many proposals circulating in Congress and in state legislatures in the wake of the fallen federal law. She noted that three U.S. senators recently introduced new legislation that would require schools receiving federal funds to use software filters to block students' access to adult-oriented sites on the Internet.
One of the senators, Dan Coats of Indiana, last November offered a new version of the Communications Decency Act, this one with the “harmful to minors” standard.
But Beeson noted, too, that despite all of the legislative activity, the ACLU and other civil liberty groups have been successful in defeating such legislation. After felling the federal law in ACLU v. Reno, the ACLU and the American Library Association successfully teamed up to defeat a Georgia law in ACLU v. Miller and a New York law in ALA v. Pataki.
Bruce Taylor, president and chief counsel of the National Law Center for Children and Families, said constitutional problems for the 1996 federal law and the two defeated state laws came partly because it used broadcast decency standards, a measure the courts deemed overbroad for the Internet.
Taylor said the Tennessee legislation's advantage is the inclusion of the phrase “harmful to minors.”
“That standard wouldn't apply to those things that are protected speech for adults and could have some value to minors,” he said. “It's limited to pornographic items and wouldn't include things in the category of AIDS, prison rape, gay material, subjects that might be indecent but not harmful to minors.”
Beeson said constitutional problems remain partly because filtering software is unreliable. “We think this filtering software clearly blocks access to areas of constitutionally protected speech,” she said.
Control on the other end doesn't work either, she said, because web site operators and Internet service providers “cannot know when communicating in cyberspace who your audience is going to be. It reduces what you're reading and seeing to only what is fit for children.”