The US Supreme Court begins to hear evidence on Wednesday in what some are calling the first free speech case of the twenty first century, a case that will have global ramifications for Internet censorship laws.
The American Civil Liberties Union (ACLU) and the Citizens Internet Empowerment Coalition - a group led by the American Library Association (ALA) and backed by Microsoft and America Online - will square up to the might of the Justice Department in the highest court in the US in a bid to strike down the Communications Decency Act (CDA).
"The future of the Internet is at stake in this case," said Jerry Berman, director of the Center for Democracy and Technology. "It must be free, open and accessible to all."
The CDA - passed last year as part of wider review of the US telecommunications industry - makes it a federal crime, punishable by two years in jail, for anyone to "use an interactive computer device to send [or] display ... to a person under years of age 18" any image or communication "in terms patently offensive as measured by contemporary community standards".
A number of lower courts have declared that the CDA breaches the First Amendment of the US Constitution, which guarantees freedom of speech. Opponents of the act are concerned that its terminology - "indecent" and "patently offensive", for instance - is too vague and open to abuse by ultra-conservative organisations.
Donna Rice Hughes, a spokeswoman for such a group - the family values lobby ?Enough is Enough? - but better known in the 1980s as the mistress of married would-be US presidential candidate Gary Hart, said: "Any child with a computer can access vile pornography in a matter of seconds. And once they have seen it, it can never be erased from their minds."
The Supreme Court hearing is the climax of a year-long campaign, which began on the day the Act was signed into law last February. It was immediately met with a lawsuit from ACLU on behalf of various civil rights, gay and lesbian and free speech lobby groups. They were later joined by the ALA.
The anti-CDA alliance has been extremely careful in the wording of its challange to the law, focusing on the use of the word 'indecent?. No attempt is being made to challenge legislation against ?obscene? communications, which through legal precedent are not protected by the First Amendment. But according to ACLU, the CDA?s loose definition of ?indecent? can be extended, for example, to safe sex Web sites or Aids resource bulletin boards.
Lawyers challenging the CDA will also claim that the global nature of the Internet makes it impossible to enforce fully any national censorship legislation. Even if US carriers were banned from hosting certain material, the CDA could not prevent a company in Amsterdam posting porn on a Web site based in Europe, but accesible from the US.
The CDA could only be effective if other countries introduced similar legislation. One of the fears of the anti-CDA lobby is that a ruling to uphold the act in its present form would give the green light to other legislative bodies - such as those in the European Union - to introduce equivalent forms of censorship.
For the Justice Department, acting solicitor general Walter Dellinger is gambling that the Supreme Court will be responsive to his often emotive claims that the CDA is needed to protect the morals of the nation?s youth and, if that means impinging on some adult rights in the process, then so be it.
According to the Justice Department brief filed with the court last month: "three provisions (in the CDA) constitutionally advance two overriding government interests: protecting children from harmful effects of sexually explicit, patently offensive communications; and facilitating the First Amendment interest of parents and children in using the Internet and other computer services."
The brief argues that a combination of the doctrine of parental responsibility espoused by ACLU and the use of content filtering software is not enough. "Parents who check which television shows their children are watching may simply not have the time or patience to watch their children conduct extended Internet searches," it claims.
The CDA has been successfully challenged in a Philadelphia lower court and the Supreme Court is likely to take this ruling into account when it passes judgment in June. If the Justice Department loses the case, it is widely expected to redraft the Act and send it back to Congress for approval. But since the original act was passed into law, Ira Maginizer, President Clinton?s chief Internet adviser, has spoken out against the imposition of any new censorship law.
Nonetheless, at a pre-hearing briefing last week, opponents of the Act gloomily predicted that the fight would not end with the Supreme Court ruling. "It is very clear that Congress is not going to let this alone," said one. "We've been told by family groups that if we win this round, there will be another."
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