No matter what the Supreme Court decides after hearing Wednesday's arguments about the constitutionality of the Communications Decency Act, the fight over preserving free speech online is far from over, lawyers and legislators agree.
"Right now, online freedom of speech is an issue at the federal, state, and local levels," says Chris Hansen, an attorney with the American Civil Liberties Union in New York. "As for how it plays out over the coming months, the shape and scope of the debate will be entirely dependent on the Supreme Court's decision."
At issue in Reno v. ACLU is whether the federal government can stifle speech on the Net. The administration is appealing last June's ruling from a three-judge panel of the US District Court for Eastern Pennsylvania, that the CDA poses an unconstitutional prior restraint on free speech in "a unique and wholly new medium of communication."
Judge Stewart Dalzell's analysis of the issues included the finding that "the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country - and indeed the world - has yet seen." He wrote that in supporting the CDA, the Clinton administration was acting unconstitutionally by implicitly asking the court "to limit both the amount of speech and the availability of speech. This argument is profoundly repugnant to First Amendment principles." If the Supreme Court agrees with that reasoning, it will tie Congress' hands in regulating Net speech.
"If the court agrees with Dalzell's logic, the issue's dead, at least at a federal level," Hansen said. "If the court overturns the CDA, but relies on some narrower interpretation, however, there's still room for Congress to maneuver."
So far in the 105th Congress, action on the issue has been limited.
Senator Patrick Leahy (D-Vermont) has introduced a bill that would repeal the CDA. A bill by Representative Zoe Lofgren (D-California), the Internet Freedom and Child Protection Act of 1997, proposes requiring that Internet service providers make screening software available. Although forces on both sides of the issue are scanning the horizon for a "son of CDA" bill, none have surfaced to date.
"It's simply premature to float any serious proposal on either side until the Supreme Court clarifies the issue," says Jonah Seiger, policy analyst for the Center for Democracy and Technology. "Until they decide one way or the other, no bill has a serious chance of being considered."
One member of the Congressional Internet Caucus said he is concerned that if the CDA is struck down, its supporters will return with a less-sweeping attempt to regulate online content.
"My hope is that if the CDA is overturned, Congress stays out of this issue altogether," said Representative Rick Boucher (D-Virginia), a co-founder of the Internet Caucus. "My concern is that Congress may revert to a default position and pass a standard regulating content considered 'harmful to minors.' There's a chance such language might pass constitutional muster."
Boucher also opposes Lofgren's attempt to require that ISPs make screening software available. "We should do exactly nothing to regulate content on the Internet," he said. "Certainly there's software appropriate to controlling whatever content needs to be controlled, but legislation requiring its use is not the answer."
The landscape for content regulation is changing at the executive level, too. Today's appeal notwithstanding, Ira Magaziner, President Clinton's primary adviser on Internet issues, announced last week that he planned to recommend that the president veto future legislation similar to the CDA.
At the state and local levels, laws affecting standards of speech online are appearing with increasing regularity. In the past year and a half, at least 20 state legislatures have either considered or enacted laws affecting speech online. A Virginia law forbids state employees from using computers at work to visit sexually explicit sites. A Connecticut law creates criminal liability for sending an online message "with intent to harass, annoy, or alarm another person." A Boston ordinance that has spawned copycats in Texas, Ohio, Florida, and California allows librarians to expel anyone viewing anything "inappropriate" from library premises.
For its part, the ACLU is currently involved in two state-level censorship cases: The American Library Association v. Pataki, which challenges a New York state statute aimed, like the CDA, at shielding minors from "indecency"; and ACLU v. Miller, which challenges a Georgia law barring online users from using pseudonyms or communicating anonymously over the Internet and restricting the use of links on the World Wide Web.
Leaving aside constitutional concerns about prior restraint on free speech, the viability of such laws is questionable. "Most state regulations are inappropriate because of the global nature of the Net," says Hansen. "The best example of the absurdity of these laws is Georgia - if you've emailed anyone in Georgia using a handle, you've broken the law."
