7/6/97 
 
LINDA SEEBACH'S OP-ED COLUMN FOR JULY 69 
By Linda Seebach 
Scripps Howard News Service 
 
``Communications Decency Act'' deserved its Supreme Court burial 
 
 
The Supreme Court made the right call on the miscalled ``Communications Decency Act,'' ruling 7-2 that Congress had violated adults' First Amendment rights in its attempt to protect children from indecency online. 
     The court's opinion, delivered by Justice John Paul Stevens, endorsed the findings of a district court earlier this year. 
     The Internet ``is the most participatory form of mass speech yet developed,'' Stevens quoted approvingly, and so it is entitled  to ``the highest protection from governmental intrusion.'' 
     Anything that can be published in a book or declaimed on a street corner now enjoys equal constitutional protection if it is posted on a Web page or proclaimed in a chatroom. 
     Had the court ruled otherwise, the First Amendment would have shriveled into irrelevance in an increasingly online world. But that point had been lost on a large majority of the Senate, which voted enthusiastically to insert the ``decency'' provisions into the 1996 Telecommunications Act at practically the last moment. 
     Politicians are understandably reluctant to have voters think they're in favor of indecency, but in their haste to avoid it they went too far. 
     The two provisions the Supreme Court overturned threatened up to two years in prison for anyone who transmits an obscene or indecent communication online ``knowing that the recipient of the communication is under 18 years of age'' or who displays ``in a manner available to a person under 18 years of age'' any communication that depicts or describes, ``in terms patently offensive as measured by contemporary community standards, sexual or excretory organs or activites.'' 
     The obscenity provision stands; there is an established legal standard for obscenity, strict enough that people who violate it rarely do so in innocent pursuit of some other free-speech objective. 
     But the rest of these provisions fail because they are too broad, and too vague. 
     Even the slightest experience with the Internet will make it clear that a term like ``recipient'' is meaningless in that context. Is anyone who clicks on a Web page a ``recipient''?  If so, then the only safe course is to assume that there is at least one under-18 reader of every page, and thus to restrict any content that might be considered indecent or patently offensive, by someone somewhere. 
     There is, however, no legal standard for ``indecent.'' And it's easy to think of useful publications that would be banned under the ``patently offensive'' standard _ full-color illustrations of the ravages of venereal disease, say. That example would be protected in print because it has redeeming social value, but the decency act was too hastily drafted to include that safeguard. 
     No one could know, either, which community's contemporary standards would be applied to their discussions. ``A parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neith he, his child, nor anyone in their home community'' thought the material was indecent, Stevens wrote, ``if the college town's community thought otherwise.'' 
      Not likely that anyone would be convicted on such a charge and actually serve time? Maybe not, but it doesn't take convictions to make such a law dangerous; even unsuccessful prosecutions teach people to censor themselves. 
     The justices, unlike the members of Congress who voted for this measure, appreciate how different the Internet is from other media. Stevens pointed out that the law would create a ``heckler's veto,'' where anyone offended by the content of a conversation could demand it be ended because someone under 18 was sitting in. 
     The justices weren't indifferent to children's welfare, nor concerned to protect adults' right to enjoy pornography, although they acknowledged that such a right exists. They understood that trying to set limits for online discussion stricter than those that apply to print endangered the rights of a lot of other people as well. 
 
Linda Seebach is an editorial writer for the Rocky Mountain News, 400 W. Colfax Ave., Denver CO 80204. She can be reached at 303-892-2519 or seebach@denver rmn.com by e-mail.