December 19, 2001 09:56pm
Net Obscenity Provisions Revocation Sought
by: David McGuire
(WASHINGTON, DC) -- A small civil liberties group has asked a federal judge in New York to revoke what remains of an Internet pornography law that was gutted by the U.S. Supreme Court in 1997 [http://www.SupremeCourtUS.gov ].
In a complaint filed in a New York City Federal Court [http://www.USCourts.gov ] last week, the National Coalition for Sexual Freedom [ http://NCSFreedom.org ] argued that the court should overturn the provisions of the Communications Decency Act (CDA) that prohibit Web sites from displaying obscene material online.
"Many people are unaware that one of the most powerful censorship provisions of the Communications Decency Act [ http://EPIC.org/cda ] is still in place. Even fewer realize the dangerous effect it could have in the hands of an overzealous administration and attorney general," NCSF spokesperson Susan Wright said in a prepared statement. Passed by Congress and signed into law by President Bill Clinton in 1996, the CDA drew a barrage of criticism from industry groups, publishers and civil-liberties advocates.
In addition to prohibiting online obscenity -- which was already illegal in physical form -- the law called for Web site operators to be held criminally responsible if they allowed children to view constitutionally protected "indecent" material online.
Only the most graphic pornography and sexually explicit material meets the legal standard for obscenity. Milder sexually explicit material -- nude photos, erotic stories and the like -- may be considered indecent. But such material is protected under the First Amendment to the U.S. Constitution.
A broad coalition of public interest groups -- including the American Library Association [ http://www.ALA.org ], the American Civil Liberties Union [ http://ACLU.org ] and the Center for Democracy and Technology [http://CDT.org ] challenged the indecency provisions of CDA, on grounds that it could crimp the rights of adults to view constitutionally protected speech online.
The groups convinced a lower court to freeze those provisions; that decision eventually was upheld by the U.S. Supreme Court.
But the NCSF, which promotes sexual freedom and counts as members many operators of sexually explicit Web sites, maintains that the remaining online obscenity ban in CDA has a chilling effect on Web site operators who want to post sexually explicit materials.
The NCSF specifically argues that the "community standards" test in federal obscenity law is meaningless in global world of the Internet.
The obscenity ban in CDA is based on a decades-old obscenity standard that applies to printed materials, films and photos.
Center for Democracy and Technology (CDT) Associate Director Alan Davidson, who was involved with the original CDA challenge said that the obscenity language in CDA was deliberately left out of the first challenge for that very reason. "The concept of prohibiting obscenity speech -- as controversial as it may be -- has been relatively well-settled law for many decades now," Davidson said. "The focus of the original challenge was on the area of greatest threat to free speech, which was the indecency provision."
Most of the original CDA challengers are now in the midst of fighting another law -- the Child Online Protection Act [http://COPACommission.org] -- which was passed by Congress shortly following the Supreme Court ruling in CDA. That law has been dubbed "CDA II" by its opponents. The Supreme Court heard arguments on that legislation last month.