Struggles over free speech in cyberspace continue with ‘Son of CDA’

Tuesday, April 14, 1998

As early as next month, the U.S. Senate could vote on a bill designed to make sure that “commercial distributors of pornography are met with the force of law.” Last month, the Commerce Committee approved Senate Bill 1482, dubbed by cyber-liberty proponents as “the Son of CDA,” in near-unanimous fashion.

The bill, introduced last November by Sen. Dan Coats, represents Congress' second foray into regulating pornography on the Internet. Their first attempt at regulating indecency online, the Communications Decency Act of 1996 or CDA, failed miserably in the courts, as three federal courts–two federal district courts and the U.S. Supreme Court–ruled that the law egregiously violated First Amendment free-speech guarantees.

After this resounding defeat, however, legislators and anti-pornography groups only responded with renewed vigor, seeking to pass other measures that they hope will protect minors from pornography on the Net.

When introducing his latest venture into Net sanitation, Coats warned the president and fellow legislators about “a virtual explosion of commerce in pornography on the Internet.”

Coats acknowledged that the first attempt at regulating Internet porn failed to satisfy the courts' First Amendment review. But, the Indiana senator, who was one of the sponsors of the original CDA, said that he had “studied the opinion of the Court and come before my colleagues today to introduce legislation that reflects the parameters laid out by the Court's opinion.”

The opinion to which Coats refers is the U.S. Supreme Court's decision last June in Reno v. ACLU, in which the court invalidated two key provisions of the Communications Decency Act.

In Reno, the high court examined the constitutionality of two provisions. The first, called by the court “the indecent transmission” provision, prohibited the knowing transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient is under 18 years of age.”

The second, called the “patently offensive display” provision, prohibited the use “of any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

The Supreme Court struck down these provisions in part because of their sweeping application to virtually all types of communications, including web sites devoted to discussing AIDS, homosexuality, breast cancer and prison rape. The court stated that “the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment.”

Coats' “Son of CDA” proposal seeks to “accommodate the concerns of the Supreme Court” in several ways. The two major distinctions between the second CDA and its predecessor are:

  • providing for a “harmful to minors” standard rather than an “indecency” or “patently offensive” standard;
  • targeting only commercial pornographers.

The newer version of the CDA provides that “[w]hoever in interstate or foreign commerce in or through the World Wide Web is engaged in the business of commercial distribution of material that is harmful to minors shall restrict access to such material by persons under 17 years of age.” The bill provides for penalties up to a $50,000 fine and six months in jail for each violation.

Shyla Welch, communication director for anti-pornography group Enough is Enough, said that the difference between the Coats bill and the original indecency provisions of the CDA is “the difference between a buckshot approach and a rifle-shot approach.” She said that the new bill “is a rifle-shot approach because it only targets commercial pornographers. It merely holds commercial pornographers responsible for the mega-money they make off Internet pornography.”

However, cyberliberties expert Ann Beeson, an American Civil Liberties Union attorney who played a prominent role in the CDA litigation, said that “the harmful-to-minors standard does not make the measure constitutional.

“Senator Coats apparently was unaware that a federal court in American Library Association v. Pataki struck down New York's Internet indecency law that had a harmful-to-minors standard,” she said.

“No matter what standard is used–a harmful-to-minors or an indecency standard–a major problem still exists in distinguishing between adults and minors on the Internet.”

Solveig Singleton of the Cato Institute –a cyberliberties think tank–says the harmful-to-minors standard does not make Coats' new proposal constitutional. She said: “The harmful-to-minors standard has always been applied using a local community standard. It will be virtually impossible to come up with a national or international standard.”

In a letter to the members of the Commerce Committee, the ACLU, along with the Electronic Frontier Foundation, has laid out several constitutional problems with Senate Bill 1482.

The ACLU and the Electronic Frontier Foundation argue that the bill's term “commercial distributor” could be applied not only to traditional commercial pornographers, but also to the virtual bookstore or to a movie promotional site. Singleton agrees that one of the primary problems with the bill is that “it can definitely be interpreted to apply to bookstores.”

Chris Finan, president of the American Booksellers Foundation for Free Expression, also agrees the reach of the law will extend beyond commercial pornographers. He said: “We are very concerned with the Coats bill and are not reassured by his soothing words.

“It is not at all clear that this proposed law would not affect everybody that puts up material that conceivably could be declared harmful to minors. We are as opposed to this bill as to the original CDA. We don't see a constitutional difference between the harmful-to-minors standard and the prior-indecency standard,” he said.

Coats' bill attempts to solve the concern over the application of the harmful-to-minors standard by requiring the Department of Justice and the Federal Communications Commission to make available on their web sites “such information as is necessary to inform the public of the meaning of the term 'material that is harmful to minors'” under the law.

However, Singleton dismisses this attempt to make the bill more constitutionally defensible.

“The FCC has been wrestling with defining indecency for years since the Pacifica decision [a 1978 U.S. Supreme Court decision dealing with broadcast indecency],” she said.

“Even though the commission has been essentially begged to come up with rules regarding indecency, the FCC has refused, insisting any determination of indecency must be examined on a case-by-case basis. It won't be any easier for them to define 'harmful to minors.'”

No one questions the government's compelling interest in protecting children from harmful materials. However, “the Son of CDA” threatens to chill adult free-speech rights. The high court has acknowledged on numerous occasions that nonobscene, sexual expression is protected by the First Amendment and has warned for more than 40 years that government cannot “reduce the adult population … [to] … only what is fit for children.”

Many fear that Coats' new legislation, like the original CDA, sacrifices adult free-speech rights on the altar of protection of minors. The Supreme Court warned in Reno v. ACLU that the CDA “threatens to torch a large segment of the Internet community.”

Whether the “Son of CDA” meets the same constitutional fate and goes down in flames remains to be seen. If the bill prevails in Congress, expect immediate court challenges. First Amendment advocates may have indeed won the first round in Reno v. ACLU, but the smoke has not yet cleared. The battle over free speech in cyberspace still blazes.