Justices to hear case on Internet freedom Sexually explicit material ban at issue

March 18, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Like many Americans over age 40, justices of the Supreme Court are not very cyber-savvy. But tomorrow, they start solving an Internet problem that no one else can: deciding how much constitutional freedom there will be in cyberspace.

In the first legal case on the Internet to reach the court, the justices will hold a hearing on the constitutionality of a 1996 law making it a crime to send sexually explicit pictures or text via computer networks.

Although the justices will be focusing on only a single law and its validity, the outcome may strongly influence the future of government regulation of the digital, interactive world -- a global community that may link as many as 200 million computer users before the end of this century.

Some Internet organizations are using doomsday rhetoric to express their fears about what the court might do. "If the government prevails [and the 1996 law is upheld], it will destroy the Internet as we know it," predicts Jerry Berman, executive director of the Center for Democracy and Technology here.

Because most Web sites are unable to screen their user audience to keep out minors, he and other challengers argue, the effect will be to force everything off the Internet that would not be suitable for children.

On the other side, Bruce A. Taylor, president and chief counsel of the National Law Center for Children and Families, based in Fairfax, Va., says: "If the law is not upheld, pornography will destroy the Internet as we want it."

The law, he said, is essential to making the medium "universally available," including to children. Without that, he said, it will be abandoned, by "parents, libraries, corporations, and everyone else."

The legal concepts being argued this week will be familiar to the justices, but the digital medium itself apparently will not be. No member of the court is known to be a net browser. Although computer industry sources say the word has filtered out of the court that some justices have had training, the court won't confirm that and insiders tend to doubt it.

Last summer, Justice Stephen G. Breyer reportedly did a bit of browsing on one of the two computers that the court has with access to the Internet. The computers in the justices' chambers are part of an internal system that is closed and self-contained for security reasons: No one can get into it, and no one can reach out from it.

Unlike one of the lower courts that handled the case earlier, the court will allow no demonstration of Internet technology before the justices this week. The court does not permit exhibits or props as part of its hearings. The federal court in Philadelphia, by contrast, turned its hearing room into a laboratory for five days of judges' and lawyers' tinkering with the new medium to make it more familiar.

Although many events that involve or affect the Internet are reported online, there will be none of that from within the court tomorrow. It allows no electronic access to its hearings. Some groups' press conferences after the hearing, though, will be on the Internet's World Wide Web.

Still, the justices have had no difficulty seeing the constitutional potential of the underlying dispute, unhesitatingly granting review of this pioneering case even though lower courts have not reached differing decisions on the constitutional question.

Both lower courts confronting the 1996 law found it unconstitutional, and the Clinton administration has appealed to the highest court to try to rescue the ban.

Set of rules for cyberspace

Some user advocates are urging the court to make a fresh beginning in developing the law of cyberspace by laying down a whole set of constitutional guidelines especially tailored for cyberspace. Nothing else will take account of the revolutionary character of interactive, global expression, those groups contend.

But the parties directly involved in the test case have told the court it could rule on this first case without doing anything new. The Justice Department says long-standing precedents on protection of children from indecency will serve to uphold the 1996 law, while Internet users say that the law runs afoul of the equally well-established rule that it is unconstitutional to limit adults to materials acceptable for children.

Several justices are likely to be attracted to the suggestion that little if any new legal ground needs to be broken. Last year, when the court upheld parts of an indecency law affecting cable television, four justices said the technology of communications was changing so rapidly that it was too soon to impose rigid constitutional formulas.

Obscenity vs. indecency

The 1996 law -- the Communications Decency Act -- outlaws both obscene and indecent expression on the Internet. Obscenity is a form of X-rated communication that the court has said gets no constitutional expression. Indecency, sexually explicit but not outright obscene in the legal sense, gets some constitutional protection.

The law's challengers have focused solely on the indecency ban, making no effort to scuttle the obscenity provisions. Two lower federal courts have found the indecency clauses unconstitutional under the First Amendment free speech guarantee.

President Clinton signed the measure into law last year, but it has not been enforced. At first, Attorney General Janet Reno said she would not put it into effect while the challenge was pending in lower courts. Then, the lower courts blocked its enforcement.

A central issue before the court this week is likely to be whether parents, using the electronic tools on the market, are able to shut off their children's access to "adult" offerings on the Internet -- and thus whether there is any need for a crackdown on Internet indecency by the Justice Department.

Pub Date: 3/18/97

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