SCN: Speech

[Steve]

x-no-archive: yes

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(NY Times Editorial)---Although the Supreme Court may have 
given new life to the Child Online Protection Act this week, the 
ruling suggests that the court remains deeply concerned about free 
speech online. We hope that Congress's misguided attempt to 
regulate online pornography and other Internet material will 
ultimately be struck down on First Amendment grounds.  

The protection act was Congress's attempt to come up with a 
sustainable ban on indecent speech on the Internet, after the 
Supreme Court held that an earlier law violated the First 
Amendment. In response, Congress restricted the new act to 
speech for "commercial purposes," which is less protected than 
other speech. It also limited the ban to content that is "harmful to 
minors." 

But the American Civil Liberties Union, which challenged the law, 
pointed out that in the name of protecting children, the act 
criminalizes discussion boards on gynecology, sexual advice 
columns, the Philadelphia Gay News and other communication 
fully deserving of protection.  

The most troubling part of the Supreme Court's 8-to-1 decision 
was its holding concerning "community standards." The act 
requires courts to look to the standards of the community in which 
the speech occurs. The decision reversed an appeals court ruling 
that the First Amendment does not permit "community standards" 
to determine when online speech will and will not be allowed. 

The appeals court was right on this point, and the Supreme Court 
should have let that holding stand. Under the protection act, a Web 
site operated in Greenwich Village can be forced to limit its speech 
to the standards of, say, Trent Lott's hometown of Pascagoula, 
Miss. The result, as Justice John Paul Stevens noted in dissent, is 
that "a law that criminalizes a particular communication in just a 
handful of destinations effectively prohibits transmission of that 
message to all of the 176.5 million Americans who have access to 
the Internet."  

On the positive side, the Supreme Court did not hold that the act 
itself is constitutional. Rather, it sent the case back to the appeals 
court, which can decide whether to rule on grounds other than the 
"community standards" test, or to give a better, more detailed 
explanation of how the statute's use of that test suppresses 
protected speech. There is every reason to believe that if the 
appeals court strikes the law down on other First Amendment 
grounds, or even if it just bolsters its initial decision with additional 
facts and legal analysis, the Supreme Court would let it stand.  


Copyright 2002 The New York Times Company





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