Authors’ Note, 6/26/97

We think this held up pretty well, and can’t wait to see what the powers that be will come up with next ...



Jeff Schult and Nicole Chardenet

The Supreme Court is about to issue its most important 1st Amendment decision since the flag was declared burnable. Sometime around the 4th of July, appropriately enough, Rehnquist and Co. will finally let us know what the ultimate constitutional authority in the land thinks of the Internet. Why is it that none of the smart money in cyberspace is worried?

Could it really be because Reno v. ACLU is that much of a no-brainer? Lower courts, after all, practically laughed the Communications Decency Act out of chambers. The constitutional nightmare that Congress passed ostensibly to guard our children from the horrors of online pornography, stalkers and bomb recipe collectors would also give the government wide latitude to prosecute folks selectively for “indecent” digital speech or disseminating information about abortion. In March, a three-judge panel found that the Internet is a “unique and wholly new medium of worldwide human communication” and that the Internet is an even more "speech-enhancing medium than print, the village green, or the mails." Because the CDA "would necessarily reduce the speech available for adults on the medium," it is "constitutionally intolerable," the panel ruled.

Yes, there was rejoicing on the Internet, which the CDA had energized into a political force almost overnight. But the battle that online avatars compared gleefully to Lexington and Concord is far from over. The Supreme Court wanted this case, and not just to rubber-stamp the appellate court decision. There is cause for worry, and this is only the beginning.

Even in the best-case scenario for 1st Amendment absolutists  that the high court unanimously upholds both the position of the lower court and its flavor  means that Congress will go back to work. Who, after all, wants to be seen as a protector of the prurient, besides the American Civil Liberties Union? And any issue that can produce a coalition that includes Pat Schroeder and Jesse Helms on the same side is not going to go away.

More likely is that this court will uphold free speech but in language that will lead every two-bit local or state official to think that he or she could craft a law or establish a precedent that the court would like. Rehnquist, Scalia and Thomas  there’s three votes for some sort of rinkydink, incomprehensible decision that provides the framework for applying “local community standards” to the Internet.

Of course, they could rule for the government, which would align the United States philosophically somewhere just this side of mainland China on the digital free speech question.

The Internet’s visionaries, such as they are, argue that it does not matter what the Supreme Court of the United States has to say about freedom of speech online. John Perry Barlow, better known to most people as the lyricist for some of the best of the Grateful Dead’s anthems, penned the whimsical, utopian “A Declaration of the Independence of Cyberspace in 1996:

“We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear…”

Implicit in the statement is the fact that the Internet is too big and complicated to rule, and that it is hopeless to try. But there is true reason to fear that government will try, and will muck it up. The Supreme Court is unlikely to cede sovereignty over the law to the masses. This is a battle that will take decades.

And, for all the rhetoric, the issue at the moment boils down to “How do we protect our children from pornography, perverts and hatemongers in cyberspace?”

And someday, when people in government understand a little bit more about what the Internet is  perhaps not until children who were raised with the Internet come to power  the answer will be there, right where it was all the time. It is in our law already. People have a right not to look, and people have a right not to have things they don’t want pushed in their faces. Will today’s Supreme Court say such a thing, so simply? No, it won’t. Yes, we miss one Justice William O. Douglas.

Think for a minute. Are we protecting our children,  or ensuring that they look back on us with the same exasperated pity we visit on our own parents, when they cling to other times? The government cannot stop children from seeing pornography. A law cannot convince them that they should disdain it.

Parents can. Teachers can. Role models can.

We urge anyone who wants to hear what kids, teenagers and young adults think about censorship issues that affect them directly to cruise over to, where teens are organizing against censorship and the debate is rather less hysterical than the grownups can often manage. Did you know, for example, that Cybersitter, one of the better known programs for filtering out objectionable Internet content, blocks the home page of the National Organization for Women because of a link to a lesbian support site? And it blocks out anything critical of Cybersitter, for that matter  including, Time-Warner’s megasite, where the webheads who bring you the Netly News put up a keen little page where you can submit an Internet site and see which pieces of “censorware” block it.

For the record, isn’t blocked.


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