Rebublican Law Journal
Vol. 173 No. 215, pp. 121-129, January 1, 1998

Free Speech & Modern Technology
Under The First Amendment

By Howard Hobbs JD, Editor, Republican Law Journal

WASHINGTON DESK - Today, when we think about the freedom of speech, we must include in our range of consideration digital networks which connect computers to each other.

Accessing a computer network requires a computer, a modem and a telephone line. The user dials the "host" computer of the service or network and, once connected, can communicate over the network through the modem. An individual can create a bulletin board service with just a couple hundred dollars, basic computer hardware and some fundamental computer knowledge.

Creation of a Web site can cost between $1,000 and $15,000, and monthly operating costs vary depending on the goals and the Web site's traffic.

The best known example of a computer network is the Internet, a noncommercial information highway of computers and computer networks connecting universities, laboratories, government bodies, and individuals with millions of users in 102 countries.

The parties in ACLU v. Reno stipulated that the Internet has as many as 40 million users and projected that the number would grow to 200 million Internet users by the year 1999.

No one owns the Internet, and no single government, company, or individual controls it. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers. There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.

Most online services offer a number of services that can include "electronic mail to transmit private messages to one or a group of users or to an established mailing list on a particular topic; chat rooms that allow simultaneous online discussions; discussion groups in which users post messages and reply to online 'bulletin boards'; informational databases;" and Internet access.

Online communications are interactive. This means, in part, that users of online systems must seek out the specific information they wish to retrieve and the types of communications in which they wish to engage. Online communication provides forums for both 'public' and 'private' communication. E-mail and online mailing lists share private communications between specified persons or groups and, as with regular mail, only the intended recipients of an e-mail message will receive it.

Similarly, only subscribers to an online mailing list should receive messages posted to that mailing list. By contrast, Web sites, gopher sites, online discussion groups, and chat rooms are public because anyone with online access can reach them or participate in them at any time.

These forums are similar to the community town-hall, public library, or public mall.

On February 8, 1996, President Clinton signed the Telecommunications Act of 1996 into law and explained that the legislation would "stimulate investment, promote competition, and provide open access for all citizens to the Information Superhighway."

However, contrary to the goal of "opening wide the door to the Information Age," provisions of the Act violate the Constitution's First Amendment guarantee of freedom of speech by imposing far-reaching new federal criminal liabilities on Americans who exercise their free speech rights on the Internet.

In particular, a little-noticed provision of the Act, specifically bans abortion-related speech by criminalizing Internet discussion and information about abortion.

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet. Title 47 U. S. C. A. 223(a)(1)(B)(ii) (Supp. 1997) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses are provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications, 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, 223(e)(5)(B).

Those provisions of the Act were challenged by a number of plaintiffs who filed suit challenging the constitutionality of 223(a)(1) and 223(d).

After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions.


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