Advocates See More Battles Over Net Speech

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February 18, 1998 (12:00 AM EST)

By John Borland,

AUSTIN, Texas -- The defeat of the Communications Decency Act (CDA) in court has spawned a second round of Net free speech battles, said a panel of attorneys at the Computers, Freedom, and Privacy conference in Austin, Texas Wednesday.

"I am very worried and very frustrated at what we have been seeing in the wake of the Communications Decency Act case," said Ann Beeson, the American Civil Liberties Union (ACLU) attorney who took the CDA case to the Supreme Court. "The first generation [fights] had to do with saving the medium from total disruption. ... These second generation battles are all going to have to do with ensuring the quality of the Internet."

Policy makers in Congress and state legislatures are sponsoring a new round of bills designed to get around the Supreme Court's mid-1997 ruling, she said. She and other advocates are also opposing plans to rate and filter websites, which the court suggested as an alternative to strict government censorship.

"We are very concerned about the long-term implication of rating schemes," Beeson noted. The ACLU, along with an international coalition of other free speech and human rights groups, has publicly opposed ratings proposals such as the Platform for Internet Content Selection, which they say could wind up being used to censor the speech of minority political and ethnic groups around the world.

But the Supreme Court's CDA decision actually left considerable room for policy makers to pursue this kind of alternative speech regulation, two other attorneys on the panel said.

"The court got the facts wrong," said Eugene Volokh, a law professor at the University of California, Los Angeles. The decision was based on faulty assumptions about the strength and political viability of filtering software, he said. Instead of barring legislative attempts to regulate online speech, he said, it essentially provided a roadmap for bills like Sen. Dan Coats' (R-Ind.) "Son of CDA," which bars speech considered "harmful" to minors.

"There were factual problems with the Internet discussion," agreed New York attorney and author Lance Rose. Much of what happens on the Net -- such as e-commerce or data collection -- is not traditional speech, and should be subject to regulation despite the CDA decision, he said. "In my view, the CDA was not a referendum on free speech on the Net," he added. "It was a very flowery work that is going to be trampled under."

Advocates' post-CDA battles for Net speech are increasingly moving into local arenas, Beeson said.

The ACLU, along with other advocates, has spent the last six months fighting attempts by public libraries to put filters on their Net connections.

While libraries in San Jose, Santa Clara, and several other California cities have decided not to filter their Net connections, an ongoing case in Loudoun County, Va., is testing the ability of librarians to act as Net censors. "I think universal access at libraries is going to be crucial in protecting the quality and the nature of the medium," Beeson said.

School district policies are also a concern, Beeson added, noting that the ACLU is fighting several cases in which student newspapers were not allowed to publish names or photos of students on their online news sites.

She also cited a Texas case in which a student was suspended from school and dropped from his emerging technology class after a woman complained to school officials about his private "Chihuahua Haters of the World" Web page.

"We need to be vigilant about free speech on the Web," Beeson said.