Issue 62, Summer 1996

by Fred T. Haley 

In a unanimous decision, a three-judge panel in federal court in Philadelphia struck down the provisions of the 1995 Telecommunications Act which would have restricted all on-line communications to ideas, images, and information deemed suitable for children.

Finding the Communications Decency Act unconstitutional, the three judges, in separate opinions, decried the vagueness of the terms "indecency" and "patently offensive," likened the new medium to print and telephone in deserving the same First Amendment protection, and lauded the Internet’s promise as "the most participatory form of mass speech yet developed."

Interestingly, the most cautious of the three opinions emphasized that the presumption is that any restriction on expression violates the First Amendment, and the burden is on those proposing the restriction to prove otherwise.)

The drastic law was passed in haste (no hearings were even held!), and, many believe, in ignorance about the important new medium. Politicians were unwilling to take a principled stand in the face of irrational and misleading pressures from the political and religious right, fueled by media sensationalism such as a Time Magazine cover story about "Cyberporn."

The dramatic and instructive hearings in Philadelphia revealed just how indifferent Congress was to its oath to uphold the constitution in passing this law. When Chief Judge Dolores K. Sloviter asked a government witness if a nude statue of Aphrodite from the University of Pennsylvania Museum of Archeology and Anthropology could be blocked on-line, he said, "yes." (The statue is now seen by about 40,000 schoolchildren a year, according to the museum.)

The law provides for an accelerated review and is now being appealed to the Supreme Court.