Web Decency Hearing May Alter Landscape

Less than two years after the Supreme Court struck down the Communications Decency Act, civil liberties activists and government lawyers faced off Wednesday in a federal courtroom over the government’s latest attempt to rein in pornography on the Internet.

Opening a three-day hearing that could remake the Internet landscape, attorneys from the American Civil Liberties Union urged a federal judge in Philadelphia to block enforcement of the Children’s Online Protection Act.

The controversial law, passed by Congress and signed by President Clinton last year, would require businesses on the World Wide Web to take steps to protect minors from “harmful” material or face jail sentences and fines of up to $50,000 per day.

The stakes are enormous for both sides of the case. Free-speech activists say the law could force countless Web sites--including mainstream sites that have nothing to do with pornography--to shut down. For the government, the law represents an extensive effort to repair flaws that sank the CDA, and a second judicial rebuke could be fatal.

“There are huge financial interests at stake, and the free-speech implications are enormous,” said Doug Mirell, a 1st Amendment attorney who teaches a media law course at Loyola Law School in Los Angeles.

A temporary restraining order, issued last fall by Judge Lowell A. Reed Jr., has blocked the government from enforcing the law. But that order will expire Feb. 1, and Reed is expected to decide before then whether to impose a preliminary injunction that would extend the ban and halt enforcement of the law until its constitutionality is determined.

ACLU attorneys are representing 17 plaintiffs, who sued Atty. Gen. Janet Reno to stop her from enforcing the law. The plaintiffs range from a consortium of media giants, including Warner Bros. Online and the New York Times, to the operator of a Web site that offers frank sexual advice for disabled people.

Justice Department attorneys are scheduled to begin their defense of the law Friday. Both sides have indicated that no matter the short-term outcome, the case is likely to be appealed to the U.S. 3rd Circuit Court of Appeals, and perhaps to the Supreme Court.

Legal experts say the law is likely to be overturned, but most acknowledge that the Children’s Online Protection Act is not as vulnerable as its broadly conceived predecessor.

The 1996 Communications Decency Act essentially outlawed the dissemination of “indecent” material via the Internet, whether on the Web or through electronic mail. The law was struck down largely because it was vaguely worded, and would have denied adults access to constitutionally protected speech, including most pornography.

But the children’s act, written by Rep. Michael G. Oxley (R-Ohio), was tailored to avoid those pitfalls. It is targeted at only “commercial” sites, and only on the graphical portion of the Internet known as the World Wide Web.

Further, it does not hinge on a nebulous notion of indecent material, but is aimed at material deemed “harmful to minors,” a standard that is used by many states to restrict the display and availability of printed pornographic materials such as magazines.

Critics claim that the law would affect sites that offer news, commentary or any information of a sexual nature. Furthermore, opponents say that the law’s requirement that Web sites check the ages of visitors would be an unmanageable burden.

Critics also point out that the law would do nothing to block the influx of pornography from overseas, or from sites that post pictures for free.

“This law is more narrowly tailored than the CDA, but raises many of the same issues,” said Erwin Chemerinsky, who teaches 1st Amendment law at USC. “This case is being watched very closely.”