Cyber Beat

Communications Decency Act Of 1996

THE LAW SUIT

No sooner had the President signed the Telecommunications Act of 1996, which includes the Communications Decency Act, than a law suit to challenge its constitutionality was filed. The suit was filed in the U.S. District Court, Eastern District of Pennsylvania, case number: 96-963-civil-RLB, by the following parties: American Civil Liberties Union; Human Rights Watch, Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals For Social Responsibility; National Writers Union; Clarinet Communication Corporation; Institute For Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc.

The suit seeks declaratory and injunctive relief of the Act. It claims that in as much as the Act is vague, and the parties cannot define the terms "indecent" and "patently offensive," the Act invites law enforcement and prosecutorial agencies to bring charges arbitrarily. It is also argued that the subject matter that the Act seeks to censor from the Internet is widely available in printed form to persons under the age of 18. The complaint prays that the court find that "47 U.S.C. § §223(a)(1)(B) and (a)(2) and 223(d) and 18 U.S.C. §1462(c) violate the First, Fourth, Fifth, and Ninth Amendments to the U.S. Constitution" and requests the court to enjoin their enforcement.

THE TEMPORARY RESTRAINING ORDER

On February 15, 1996, U.S. District Judge Ronald L. Buckwalter, Jr. partially granted the plaintiffs' request to temporarily enjoin the U.S. Attorney from enforcing the provisions of 47 U.S.C. 223 (a)(1)(B)(ii) as it applies to the word "indecent", but denied the request as to the word "obscene" and the remainder of the motion in all other respects. The court further directed that the order shall remain in force until the hearing and determination by a three judge panel of the district court on the plaintiff's application for a preliminary injunction.

The court agreed with the plaintiffs that "indecent" was too vague a word to be included in a statute that set out criminal charges. Yet, by denying the other issues raised in court documents, much of the Communications Decency Act stands. Until the application for preliminary injunction hearing is held (which by statute must be held within ten days), the plaintiffs aren't entitled to an appeal. Therefore, we must wait until then to determine whether the court permanently enjoins the government from enforcing the provisions with regards to "indecent" materials. Once the preliminary injunction hearing has been held and an order issued, the plaintiffs may seek an appeal of the denial of the remainder of the issues raised in the complaint if the three judge court also denies same. In the meantime, the denial allows the government to seek criminal charges on anyone who distributes information that is "patently obscene" or who distributes abortion related material over the internet.

A BILL TO REPEAL THE ACT

The challenge doesn't stop there, however. Democratic Senators Patrick Leahy and Russel Feingold have submitted Senate Bill 1567 which seeks to repeal the Communications Decency Act immediately rather than wait for decisions by the courts.

WHO WILL BE THE FIRST VICTIM?

The case filed by the ACLU and the other plaintiffs will surely be the test case for the challenge of censorship of the Internet. Yet, because the court, thus far, has left open other avenues for the government to pursue, some unlucky soul will probably be charged with some aspect of the Act and be the true test of just how far the government seeks to go in its quest to regulate the Internet. The ACLU, in its February 15th press release warned us to watch ourselves and our language in the interim. Hmmm...I wonder who might be offended by me calling them "dummy"?

19 WEB SITES OF THE PLAINTIFFS IN THE CASE OF ACLU, ET AL V. RENO

Front Page