07/01/96 JUSTICE IS BLIND, BUT NET-SAVVY

JUSTICE IS BLIND, BUT NET-SAVVY
How a court was persuaded to overturn the indecency law
The two federal judges arrived early at the Philadelphia U.S. District courthouse on the morning of Mar. 21. But instead of taking their usual seats on the bench, Dolores K. Sloviter and Stewart R. Dalzell started checking the electrical wiring. It was no ordinary day. The first-ever trial of free speech on the Internet was about to begin--complete with a live demonstration of the new medium in the freshly wired chambers. After the third judge, Ronald L. Buckwalter, appeared, the court historian snapped some photos for posterity. ``Everyone in the room felt we were involved in making history,'' says Chris Hansen, senior counsel for the American Civil Liberties Union.
Three months later, on June 11, the same three-judge panel unanimously struck down as unconstitutional the Communications Decency Act (CDA), which criminalized the distribution of indecent and patently offensive material online. In a sweeping decision, the court said the law, enacted on Feb. 8, violated both First Amendment free-speech protections and Fifth Amendment due-process rights. Wrote Dalzell in one of three separate opinions: ``The Internet has achieved...the most participatory marketplace of mass speech that this country--and indeed the world--has yet seen.... Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig.''
For the ecstatic Internet community, the triumph was hard-won. When the CDA was signed, Net users had sunk into a deep funk over what they saw as a shocking government intrusion into their once freewheeling terrain. They cursed their failure to educate Congress about their medium. But from the defeat sprang a winning strategy. ``We felt if we could just give the court a feeling of how the Internet functions, they could see that these restrictions would cripple the free flow of information,'' says Daniel J. Weitz-ner, deputy director at the Center for Democracy & Technology (CDT). Now, after the CDT and other plaintiffs spent $750,000 for litigator Bruce J. Ennis and his team, they are preparing for a possible appeal before the U.S. Supreme Court by the Justice Dept., which had defended the law.
The same day the law was signed by President Clinton, ACLU filed its challenge. Its 20 plaintiffs, including Critical Path AIDS Project, an online site on AIDS prevention and treatment, would show the kind of speech that might be silenced. The group deliberately filed its case in Philadelphia, where Court of Appeals Chief Judge Sloviter--a Carter appointee--had penned a key decision in 1990 that struck down a dial-a-porn regulation for violating the First Amendment. A coalition, led by the CDT, America Online, and the American Library Assn., filed its lawsuit on Feb. 26. The court later combined the two lawsuits.
Homework by both teams paid off. At the beginning, none of the three Philadelphia judges was well-versed in the Internet. Sloviter uses a laptop in court to take notes, Dalzell uses a Macintosh Powerbook at home, and Buckwalter only started surfing the Net on his own during the case. On the first day of trial, they were still mulling over terms such as ``HTML,'' a computer language, and ``gopher,'' a search function on the Net. But by the end, they were fluent in cyberspeak, asking whether ``putting a tag on a URL'' (labeling a Web site address ``for adults only'') would help keep kids away from smut. And the normally staid judges seemed enchanted with the technology. ``The facts of the case were exciting,'' admits Judge Buckwalter.
At trial, Netizen witness Ann Duvall, president of SurfWatch Software Inc., which makes software that blocks unwanted sites, gave the judges a tour of the Internet, but a technical glitch prevented a walk through Paris' Louvre, necessitating a change of itinerary to London museums instead.
The next day, Robert Croneberger of Pittsburgh's Carnegie Library testified that libraries can't possibly label all potentially indecent entries in their online card catalogs. So, he argued, the CDA could end up banning everything from biology texts (they mention reproductive organs) to Shakespeare (for bawdy language).
``OVERWHELMED.'' Meanwhile, Justice Dept. witnesses showed how easy it is for children to stumble upon indecent material online, using a search of key words ``little women,'' for the popular novel. Eventually, these led through hypertext links to pictures of naked women. The government stopped short of showing indecent sites, however, and gave the judges a binder of such downloaded materials instead.
In the end, the judges concluded that there was no technologically feasible way now to screen for vaguely defined indecency without violating adults' First Amendment rights. In order to comply with the law, too much legitimate speech, such as online talk of AIDS and library collections, would be curtailed.
Supporters of the indecency statute are outraged. ``The judges were overwhelmed by the technology,'' says Bruce A. Taylor, president of the National Law Center for Children & Families, which champions the prosecution of obscenity. Taylor thinks the Supreme Court will overturn the Philadelphia decision and that courts should define online indecency rather than ban all attempts to regulate online speech.
The Justice Dept. must decide whether to appeal by July 2. Constitutional experts say this High Court may view the Netizens' case favorably. In its past decisions, ``the First Amendment has always prevailed,'' says Washington lawyer John G. Roberts. But like the Philadelphia judges, the justices are unschooled in the cyberphenomenon. If Net advocates hope to get an ultimate win, they may want to help Justice Rehnquist & Co. start booting up.

UNCENSORING THE INTERNET

FEB. 8, 1996 President Clinton signs the Communications Decency Act, criminalizing the distribution of ``indecent or patently offensive material'' online. Netizens mourn their loss of free speech rights by turning their Web pages black. The ACLU immediately files a challenge to the new law in a Philadelphia federal district court on behalf of 20 plaintiffs. Another group of plaintiffs files two weeks later.

MAR. 21 On the first day of the six-day trial, the three-judge panel in Philadelphia experiences a live Internet demonstration. A small technical glitch prevents an online tour of the Louvre, necessitating a detour to London museums instead.

JUNE 11 The three-judge panel issues a historic decision to strike down the CDA as unconstitutional because it violates both First Amendment free speech and Fifth Amendment due process rights. The court disseminates the decision via floppy disk.
By Catherine Yang in Washington