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On The Horizon: Confusion Reigns Where Law Meets Cyberspace

Hard cases, as the saying goes, make bad law. Sometimes, the opposite is true as well.

You may remember Congress' first attempt to regulate pornographic material on the Internet, the Communications Decency Act. It prohibited anyone from transmitting or displaying "indecent" or "patently offensive" material to minors over the Internet. When the Supreme Court invalidated the statute in 1996, it was front-page news. The court ruled that the statute's language "lacked the precision that the First Amendment requires" and would therefore have a "chilling effect" on communication between adults, who have a constitutional right to engage in "indecent" and "offensive" communication with one another. In the court's memorable metaphor, the act "burned down the house to roast the pig."

Congress went back to work and passed the Child Online Pornography Act--"son of CDA"--in 1998. This bill covers material that's "harmful to minors" and makes it unlawful to use the Internet to transmit or display such material to minors. This time, Congress added a definition: Borrowing from the Supreme Court's definition of obscenity, the act declares that material is harmful to minors if "the average person, applying contemporary community standards," would find that it "appeals to the prurient interest of minors" and lacks "serious literary, artistic, political, or scientific value for minors."

In June 2000, the 3rd Circuit Court of Appeals in Philadelphia ruled that this bill, like its predecessor, violated the First Amendment. Using geographically defined "community standards," the court ruled, is constitutionally impermissible in cyberspace, at least given current technology. Internet users have no control over where their material is transmitted or displayed; Web-site operators can't restrict access to their sites based on the geographic locale of their visitors. The Internet makes it easy to reach a worldwide audience, but extremely difficult (if not impossible) to reach a geographic subset. As a result, Web-site operators would have to tailor their material to the lowest common denominator, the standards of "the most restrictive and conservative" community, in order to avoid liability. By imposing the views of the most puritanical community on all speakers, the act imposes an impermissible burden on constitutionally protected First Amendment speech, the court said.

But last month, the Supreme Court voted 8-1 to send the case back to the 3rd Circuit for another look. The eight, though, were deeply divided about precisely where the 3rd Circuit got it wrong. Justices Rehnquist, Scalia, and Thomas found nothing constitutionally troubling about using community standards on the Internet. To them, the Internet is no different than other media; anyone who wants to distribute material, whether via mail, TV, or the Internet, will have to observe varying community standards; if that means the "lowest common denominator" prevails, so be it.

Five justices agreed with the 3rd Circuit that the Internet is different and that geographically defined community standards are constitutionally suspect. However, these five couldn't agree on a single rationale. Justices Breyer and O'Connor said that the act would be constitutional if the community standards referred to the standards of a single, national community--that the Internet, in effect, makes it impossible to divide up this community any further for lawmaking purposes. Justices Ginsburg, Kennedy, and Souter expressed doubt that Congress had used the words "community standards" in that way, and they believed the best course was to send the case back to the appeals court for more detailed analyses of precisely how the varying community standards could be imposed on Internet communications.

The court should probably be forgiven for failing to speak with one voice on this question. Most people would probably agree that children should be protected from some of the nastier stuff floating around the Internet. But the devil's in the details, and regulatory tools like community standards, which served to protect speech diversity in realspace, don't translate well in this new borderless medium. Technology and the law intersect here in new and complex ways, and the only thing that's clear is that a constitutional solution that protects our children will require a greater understanding of the technology (on the part of our lawmakers) and a greater understanding of the law (on the part of our technologists).

David Post is a Temple University law professor and senior fellow at the National Center for Technology and Law at the George Mason University School of Law. Reach him at postd@erols.com. Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at bbrown2@gmu.edu.

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