How Free Is the Net?   

By reading news accounts of the U.S. Supreme Court's decision on the Communications Decency Act (CDA), you'd think the law's opponents were on the winning side at the legal equivalent of Waterloo, Dunkirk and D-Day combined.

The New York Times proclaimed the decision "sweeping." One columnist argued that the justices had determined the Internet to be the electronic equivalent of Speaker's Corner in Britain's Hyde Park, where anyone can say virtually anything without fear of legal reprisal.

But some experts are a bit less sanguine about the the court's decision to hold off on regulating Internet content. "This is the court dealing in a rather limited way with one particularly badly written statute," argues Michael Froomkin, associate professor of law at the University of Miami. "This is closer to 'you-did-it-wrong' than 'you-could-never-do-this.' "

In short, the Supreme Court determined what will be allowed on the Internet so far . Moreover, the court did not specifically define what type of entity the Internet is, and without such a definition, the ability of digital journalists to navigate the legalities of the Internet in the future remains uncertain. The only thing known for sure is that it is not illegal at the moment to distribute pornography or use profanity in cyberspace.

When the First Amendment was written, the founding fathers had only newspapers and magazines in mind. In the case of newer media, the court has been searching for an analogy to determine what type of medium something is.

One instructive example is that of the 1934 Communications Act, which awarded licenses to radio stations in apparent contradiction of the First Amendment — because the government has the authority to revoke a station's license at any time. Radio faced new restrictions for offensive language, which ushered in network censors to maintain "decency" standards. Later, television stations, which also are licensed, faced similar regulations on the use of "indecent" materials — defined under the law as pornography and foul language — during hours that children might be watching.

So far, it appears that the justices do not believe the Internet is as invasive or pervasive as radio or television. In the CDA trial, they determined it unlikely that a minor would be exposed to indecent materials on the Internet as easily as he or she might be on radio and television.

Instead, the court's analogy compares the Internet to "dial-a-porn," where people pay to talk about sex on the phone. While it is unlikely that most Internet users consider cyberspace comparable to phone sex chat, the dial-a-porn analogy is a favorable one for the online community. Last year the justices determined that dial-a-porn phone services should not be restricted because of potential, but improbable, access to minors.

While Neal J. Friedman, a computer law specialist in Washington, D.C., acknowledges that the CDA decision is a clear media victory, he worries that language in the opinion could spur future regulation of the Internet by an agency like the Federal Communications Commission.

Another aspect of the CDA decision free speech advocates are watching is the language of the dissenting opinion. The main centrist of the court, Justice Sandra Day O'Connor, and a leading conservative, Chief Justice William Rehnquist, dissented in the 7-2 ruling, proposing the possibility of "adult-only" zones on the Internet. If the next law aimed at regulating Internet content is less vague than the CDA, and if technology for restricting Internet access to minors becomes more common, it is possible that three other justices on what is generally considered a conservative court will join the two dissenters, paving the way for limiting freedom of online speech.

Democratic Sen. Patty Murray of Washington state already has drafted legislation that attempts to be more precise and more technologically feasible. Her proposal would help parents monitor what their children access online while providing incentives for the computer industry to participate in an Internet ratings system (see The World of New Media, page 56). The bill would force companies to provide filtering software to block pornographic sites, issue parental warnings on Web sites, make it a criminal offense to improperly rate the sites and set up a toll-free advice number for parents.

So proponents of free speech in cyberspace would be wise to take a closer look at the fine print of the decision and begin preparing for the next battle.