Constitutional Protection

Free Speech

The Communications Decency Act- Enacted Feb.8th- This law makes displaying "indecent" or "patently offensive" words or images on the Internet -- accessible to minors -- punishable by a $250,000 fine and a two-year prison sentence

Vulgar Terms:
Indecent- Not proper and fitting;unseemly
Obscene- Law…when judged by contemporary community standards, appeal to a prurient interest in sex…and has no serious artistic, scientific, of social value.

Court Cases

Damages Free Speech of Library Patrons and Web Publishers

Supreme Court Supports Library Internet Blocking Law

San Francisco - The Supreme Court ruled today that a federal statute requiring Internet blocking, also known as filtering, in libraries receiving certain federal funds or discounts is constitutional. Reversing a lower court decision by the Eastern District of Pennsylvania, the court noted that the use of Internet blocking to comply with the Children's Internet Protection Act (CIPA) in libraries is constitutional because the need for libraries to prevent minors from accessing obscene materials outweighs the free speech rights of library patrons and website publishers.

The CIPA law requires all schools and libraries that receive federal funds or discounts to install and use a technology for blocking Internet speech that is obscene, child pornography, or in the case of minors, "harmful to minors." However, based on extensive evidence, the lower court in this case found that many studies report that Internet blocking software is incapable of blocking only the materials required by CIPA, a conclusion supported by many independent studies. The CIPA law is also problematic because speech that is harmful to minors is still legal for adults, and many library patrons are adults.

"The Supreme Court today dealt a tremendous blow to the free speech rights of child and adult library patrons and Internet publishers by supporting Congress' mandate that libraries must install faulty Internet blocking software to obtain federal funding or discounts," said Electronic Frontier Foundation (EFF) Attorney Kevin Bankston, an Equal Justice Works / Bruce J. Ennis Fellow.

"The tragedy is that millions of library patrons now join the millions of students, many of them no longer minors, who face the Internet blocking barrier to obtaining a proper education at schools nationwide," said OPG Executive Director Will Doherty. "The Children's Internet Protection Act holds library patrons and students hostage to faulty blocking software created with arbitrary standards foreign to their own communities."
EFF participated as co-counsel with the American Civil Liberties Union in the case.
OPG and Seth Finkelstein entered an amicus brief to the U.S. Supreme Court in the case.

Gonzales v. ACLU II: Supreme Court Rejects Internet Censorship Law (6/29/2004)

The Supreme Court struck down the Child Online Protection Act as an unconstitutional government attempt to censor free speech on the Internet.
"The Court ruling demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults," the ACLU said. "By upholding the order stopping Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time."

The Cox-Wyden Bill

The United States House of Representatives passed the Internet Freedom and Family Empowerment Act on August 4, 1995 as a direct response to the Prodigy decision and the original version of the CDA. This act was sponsored by Representatives Chris Cox (R-Cal.) and Ron Wyden (D-Or.) and was passed in the House by a remarkable vote of 420 to 4.[128] The bill specifically prohibited the F.C.C. from regulating material on the Internet.[129] Rather, it released access providers from liability if they exercised editorial control over their transmissions. The bill ensured that access providers could actively screen out obscene material without incurring liability for every message transmitted, so long as they made a "good faith" effort to screen their services and provided screening devices for parents.[130]

By prohibiting F.C.C. intervention, the Cox-Wyden bill virtually eliminated the prospect of federal content-based regulation of the Internet. It focused on screening indecent material from children, instead of regulating or eliminating the material from the Internet altogether. The bill attempted to "remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material . . . ."[131] Naturally, this bill was favored by on-line users and access providers. The latter were shielded from liability, while the former continued to enjoy a decentralized and uncensored Internet.

However, the Cox-Wyden bill failed to directly address the concerns of parents and teachers regarding children's continued Internet access to indecent and obscene materials. The bill's focus on screening devices carried a less powerful punch than its proponents would have liked to admit. The bill's language merely provided that as a general "policy," the government should "remove disincentives" for the development of screening and blocking devices.[132] This language is suggestive, but vague. It did not mandate any behavior or specific actions by access providers to further this policy. For those who feel that F.C.C. jurisdiction may be appropriate, the Cox-Wyden bill failed to grant proper control over the medium.

The House-approved Cox-Wyden bill would have preserved the status quo that many Internet users and civil libertarians so desperately desire.[133] It would have imposed no additional culpability on access providers, and would shift the burden of responsibility to the individual user. One advantage of the bill is that it eradicated the constitutional and enforcement problems inherent in the original version of the CDA and other legislative efforts. With the Cox-Wyden bill, free speech reigned supreme and enforcement was left to watchful parents and our existing framework of laws. The majority of the Cox-Wyden bill was collapsed into the adopted version of the CDA, with the notable exception of Cox-Wyden's prohibition on F.C.C. jurisdiction. In lieu of the Cox-Wyden approach to F.C.C. jurisdiction, the CDA grants the F.C.C. a consultative role in helping determine appropriate standards for indecent material available on-line. Nevertheless, the F.C.C., under the adopted CDA, is prohibited from enforcing those standards.

Bryan Sisson, a forty-five year old unemployed truck driver, traveled to Wisconsin to visit a young girl whom he met through the Internet.  However, this is not a romantic story about two lost souls who met through the Internet and lived happily ever after. Sisson responded to a message from "Jessica," who wrote that she was fourteen years old and that "older guys treat you grown-up."  Sisson communicated with "Jessica" for approximately nine months, discussing her sexual experiences and even sending her sexually explicit pictures of himself.

When Sisson arrived in Milwaukee to obtain a motel room for a meeting with "Jessica", he was arrested by FBI agents and charged with traveling across state lines for the purpose of engaging in a sexual act with a minor. "Jessica" was a fictitious persona developed by a female private investigator who was disturbed by the amount of sexually explicit material available on the Internet. Bryan Sisson pleaded guilty to the charges, and he is free on bond with the condition that he not use the Internet

Sisson's criminal history reflected that he had previously been convicted as a pedophile. To some extent, this example demonstrates the ability of our existing framework of laws to punish criminal activity on the Internet. The fact that Sisson used the Internet to perpetrate his crime did not affect the FBI's ability to bring charges against him. However, Sisson was not arrested until he actually travelled to Wisconsin for the purpose of engaging a minor in sexual activity. What if Sisson had never done anything more than talk dirty to "Jessica" and send explicit pictures of himself - would he have been criminally prosecuted? The answer is less clear.

The sting which caught Sisson was unique because it was initiated by a private individual instead of law enforcement officials. "Jessica" was not the fourteen year old girl she purported to be, but rather a sophisticated woman who baited Sisson with a young girl's image in an effort to solicit information she would ordinarily find offensive. Supporters of a decentralized Internet would likely contend that "Jessica's" behavior runs contrary to the spirit of the Internet. That is, if you seek out a certain type of material available on the Internet, it is presumed you want to receive it; likewise, if you find material offensive, you have the power to abstain. This is the so-called beauty of interactive media when compared to mass media.