The CDA, which aimed to criminalize "indecent" speech on the Internet, was found overly broad and vague, consequently infringing on American's freedom of speech. Originally endorsed by the Clinton administration and signed into law last spring, the CDA was an amendment to the massive Telecommunications Reform Act of 1996.
Sen. Patrick Leahy (D-VT) states that the CDA was added to the larger package "without the benefit of hearings, findings, or considered deliberation....
"Not surprisingly," Leahy concludes, "the end result was passage of an unconstitutional law."
That the CDA was written into law by our esteemed leaders in Washington, D.C., came as no great surprise. Protecting children from pornography is a politically popular and right-minded goal--on the surface at least.
For these reasons, among others, while the law is dead, the issue is not.
The CDA was so broad that the Supreme Court compared it to "burning the house to roast the pig." Under the law, numerous informative web sites would have become criminal enterprises, including resources on breast feeding, AIDS, safe sex, and even the card catalog of the Carnegie Library.
The Supreme Court justices provide another example in their decision of the wrong-headedness of the CDA: "Similarly, a parent who sent his 17-year-old college freshman information on birth control via email could be incarcerated even though neither he, his child, nor anyone in their home community, found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise."
Likewise, under the CDA, parents allowing their teenage children to cruise the Net could have faced lengthy prison terms if the material were deemed "indecent" by "community standards"--even if the parents themselves thought it was fine.
This absurd overbreadth, combined with the vague notion of indecent speech, moved the court to appropriately declare the CDA unconstitutional in its entirety.
So, the feds' first attempt at Internet censorship goes down in flames. But is this the end of the story? Probably not. One of the key factors in the decision was the assumption that Internet content must be actively and purposefully obtained by users, unlike the passive reception of radio and television stations, and hence should not be regulated as those media are.
However, with the advent of Internet "push" technology, which in many ways mimics broadcast media by delivering online content to users automatically, questions may soon arise about just how dissimilar these modes of communication really are.
And the answers to these questions may also bring new attempts to censor the Net. There are powerful lobbies interested in pursuing the goals of CDA. Groups such as Morality in Media and the Family Research Council won't let their cause die with the CDA. A spokeswoman for the FRC, commenting on the decision, said, "Families will be outraged at this decision... The court has not made a good decision for children."
Meanwhile, some say that the striking down of the CDA makes it possible to draft more precise legislation. So, while President Clinton has backed off the legislative approach--working instead with industry to craft new solutions--at least one member of Congress plans to introduce a "Son of the CDA" bill.
Sen. Patty Murray (D-WA) proposes a "Child-Safe Internet Act," designed to provide incentives for web sites to make use of an automated rating system, which would also create criminal penalties for misrating sites.
But all such proposals fail to answer a simple question: Can any national government really control the content of web pages? Experts testifying before the Supreme Court stated that as many as 40 percent of all the porno sites online are overseas. This creates a problem for any CDA-like legislation; even if criminal penalties for domestic online pornographers were instituted, those interested in such material can still easily find it abroad.
German officials ran into this phenomenon earlier this year. When they forced Internet service providers to block access to a Neo-Nazi web site based in that country, sympathizers in neighboring nations immediately created duplicate sites, negating the governmental ban.
The CDA is gone for now. Those who would censor online content will not cease in their efforts. But the Net's borderless, ubiquitous nature may indeed prove to be much too wild and free for any government to effectively control.