Don't look back The Next Threat
CDA Special

by Declan McCullagh



Wednesday's court decision declaring the Communications Decency Act unconstitutional means only that the immediate threat of online content regulation has passed. But there's still a snake in the grass, and its name is the US Congress - a slow-moving but relentless boa constrictor that's trying to slowly choke the life from the Net.

Some legislators are considering plans to introduce a son-of-CDA if the Supreme Court decides the current version is unconstitutional. Instead of banning "indecent" material, the new proposals would censor anything deemed "harmful to minors."

Not only would this create a new and unprecedented category of federal speech crimes, but such a broad ban would restrict online content to what's acceptable in, for instance, the American South.

Ironically, some of cyberspace's strongest supporters, including Representative Rick White (R-Washington), are signing onto this kludge. Connie Correll, White's press secretary, said yesterday: "There's some movement to come back with the right solution that balances our First Amendment rights with protecting our children. 'Harmful to minors' does that."

White introduced "harmful to minors" language last December, but a conference committee rejected it in favor of censoring "indecent" material online.

Rumblings on the Hill point to Senator Dan Coats (R-Indiana), a staunch CDA supporter, as a likely Senate sponsor of the new legislation. Coats's office says the senator is "reading the text of the court opinion today" and will have reached a decision by next week.

The family values groups are close behind. "We would consider 'harmful to minors' language if [the CDA] were struck down," said a spokesperson for the Family Research Council, while the National Law Center for Children and Families has already endorsed such language.

For its part, the ACLU would "absolutely" oppose this bastard child of the CDA, said Barry Steinhardt, the organization's associate executive director. "We would indeed challenge the 'harmful to minors' provisions, just as we challenged the CDA. Under the decision yesterday, we would win that case."

Steinhardt predicts a series of horrific Net censorship bills that will become progressively less draconian as the Supreme Court keeps rejecting them and Congress keeps passing them. This is what happened with "dial-a-porn" laws, said Steinhardt. "Dial-a-porn went from something close to a flat ban to something the industry could implement. It went through three rounds in the federal courts."

The White House seems ready to continue colluding with Congress in this assault on netizens' free speech rights. In a statement issued yesterday, Clinton insisted that the CDA should be upheld, arguing that "our Constitution allows us to help parents by enforcing this act."

Not surprisingly, the Justice Department is dismissing the importance of the CDA lawsuit, shrugging it off as "routine work" for DOJ lawyers. "We defend and represent all government agencies in court. This is just business," said spokesman Joe Krovisky.

And what happens next, assuming - as most folks involved in the case do - that this will eventually end up before the Supreme Court? "The attorneys handling the case get together with the solicitor general and probably the criminal division and discuss this," said Krovisky. "After a while we'd apply for cert [review] and then file the briefs 90 days later."

All the preliminary paperwork will be completed this summer, and the Supreme Court will likely consider this case sometime after it reconvenes on 7 October.

A hearing could easily happen later this year, says Bruce Taylor, a chief architect of the CDA and a former federal obscenity prosecutor. "It's a jurisdiction case, and the Supreme Court puts those on their priority panel." If the Supreme Court decides to hear the case, oral arguments will be scheduled "for sometime in November or December," said Taylor, who has argued cases before the high court before.

The ACLU predicts the Supreme Court will issue a decision near the close of the next term, which ends in July 1997 - just in time for Congress to try again.

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