RE:Porn and Public Access

["Burt, David" <DBurt@ci.oswego.or.us>]

This NY Times Article on the topic of what is Internet speech is pretty
interesting.

  ***********************************************************
          David Burt, Information Technology Librarian 
          The Lake Oswego Public Library 
          706 Fourth Street, Lake Oswego, OR 97034
          URL:          http://www.ci.oswego.or.us/library/library.htm
          Phone:     (503) 635-0392 
          Fax:           (503) 635-4171 
          E-mail:      dburt@ci.oswego.or.us


March 24, 1997

          What Level of Protection for Internet  Speech?

          By LINDA GREENHOUSE

                W ASHINGTON -- Underlying last week's Supreme Court
                 argument on free speech on the Internet was a premise
so
          fundamental and obvious to all the participants, lawyers and
justices
          alike, that it did not even need to be articulated in the
courtroom: not all
          speech is created equal.

          Rather, there is a hierarchy of speech, under
          Supreme Court precedents dating back many
          decades that calibrate the degree of First
          Amendment protection with the particular
          medium of expression.

          A decision from nearly 50 years ago, holding that speech that
would be
          perfectly acceptable if uttered in a public park could
constitutionally be
          banned when broadcast from a sound truck, offers a vivid
example of the
          court's approach. "The moving picture screen, the radio, the
newspaper,
          the handbill, the sound truck and the street corner orator
have differing
          natures, values, abuses and dangers," Justice Robert H.
Jackson wrote in
          a concurring opinion in that 1949 case, Kovacs vs. Cooper.
Each means
          of expression, he said, "is a law unto itself."

          So only by deciding for themselves what the
          Internet is can the justices decide where to
          place it on the hierarchy of First Amendment
          values. That placement, in turn, is likely to
          determine whether the challenge to the
          Communications Decency Act, which makes it
          a federal crime to display "patently offensive,"
          sexually explicit material over the Internet in a
          manner available to children, succeeds or fails.

          Not surprisingly, there was a subtext to last
          week's argument, one not always audible
          through the convoluted discussion of the
          technology of shielding children from indecent
          content that took up much of the 70 minutes in
          the courtroom. The subtext was the struggle by
          the lawyers for both sides to present, and by the
          justices to select, the most apt analogy for the
          Internet.

          Analogy is the only real road map for courts when
technological change
          leaves them in unknown legal territory. Thirty years ago, for
example, the
          court was confronted with finding a constitutional framework
for
          electronic eavesdropping, a technology that did not fit neatly
into existing
          categories. Without the physical intrusion that usually
constitutes a
          "search," is eavesdropping covered by the Fourth Amendment's
          prohibition against unreasonable searches?

          Yes, the court ruled in a 1967 landmark, Katz vs. United
States, holding
          that federal agents had conducted an unconstitutional search
when they
          used an eavesdropping device, placed without a warrant on the
outside
          of a public telephone booth, to listen to a gambler's calls.
The justices
          reasoned by analogy. When the gambler shut the phone booth's
door, the
          court said, he intended to shut out "the uninvited ear" no
less than
          someone in another line of work who closed the door of his
office. 

          For the Internet, the most obvious physical analogy is
television. A
          computer monitor, after all, looks most like a television
screen; turn the
          computer on, and the blank screen fills with images. But a
physical
          analogy is imperfect at best, particularly when the old
technology
          functions entirely differently from the new. Television, after
all, has tended
          to be a one-way medium sending images and sound to many
viewers; the
          Internet allows many people to communicate simultaneously with
many
          others.

          The coalition of Internet providers and users challenging the
          Communications Decency Act have always known that they could
not
          succeed in their First Amendment challenge unless they
persuaded the
          court to look beyond the physical analogy and see the Internet
as
          something new and unfettered by the long line of precedents
upholding
          broad federal regulation of the broadcast medium. By the same
token,
          the Clinton administration knew that its best chance of
defending the law
          successfully was to anchor the Internet firmly in the world of
broadcast.

          The government's briefs rely heavily on the Supreme Court's
broadcast
          precedents, particularly a 1978 case, Federal Communications
          Commission vs. Pacifica Foundation, that upheld the
government's
          daytime ban on the broadcast of sexually explicit speech --
the "seven
          dirty words" of comedian George Carlin's well-known monologue.

                                     An effort by any level of
government
                                     to censure a newspaper for printing
                                     the same words would be a flagrant
                                     violation of the First Amendment.
Nor
                                     can the government tell a newspaper
                                     what to print; a 1974 Supreme Court
                                     decision, Miami Herald vs.
Tornillo,
                                     struck down a Florida law giving
                                     political candidates a "right of
reply"
                                     to criticism in the state's
newspapers.
                                     But the court has upheld similar
                                     compelled-access rules for
                                     broadcasters.

                                     The court has offered various
                                     rationales for relegating first
radio and
                                     then television to a low rung of
the
                                     First Amendment hierarchy: the
finite
                                     size of the broadcast spectrum,
                                     justifying federal regulation in
the
                                     public interest; their "uniquely
                                     pervasive presence in the lives of
all
          Americans," as the court said in the Pacifica case, and the
ease with
          which children too young to read can turn a dial and be
exposed to
          unsuitable material.

          The court is somewhat more protective of speech on cable
television,
          where the capacity to offer dozens of channels negates the
          spectrum-scarcity rationale. But the Justices have been
strikingly skittish
          about pinning themselves down to a legal standard for
regulation of cable,
          citing evolving technology and the absence of a "definitive
choice among
          competing analogies," as Justice Stephen G. Breyer put it in a
splintered
          decision last June on regulating indecency on cable
television.

          Can a court that is nervous about cable television even begin
to tackle the
          Internet, surely as dramatic a departure from the old means of
          communication as eavesdropping was from an old-fashioned
police
          search?

          During the argument, the justices appeared surprisingly
uninterested in
          pursuing the television analogy. There was more discussion, in
fact, about
          telephones. Breyer asked several questions comparing
conversation over
          the Internet to telephone conversations -- not good news for
the
          government, given that the court in a 1989 decision declared a
federal
          ban on dial-a-porn prerecorded sex messages to be
unconstitutional. In
          that case, Sable Communications vs. FCC, the court said that
private
          telephone conversations did not share the "uniquely pervasive"
dangers of
          radio and televisions broadcasts that can turn unwilling
listeners into a
          captive audience.

          "The Internet is rather like the telephone," Breyer said.
Deputy Solicitor
          General Seth Waxman was quick to object. A telephone
conversation is
          a "discrete communication," he said, while material "placed on
a
          computer by anybody, anywhere, is available to everybody
everywhere."

          Another vision beckons, although it was not clear from the
argument how
          much appeal it has for the court. The three-judge U.S.
District Court
          panel in Philadelphia, which declared the Communications
Decency Act
          unconstitutional last June in the case now before the Court,
depicted the
          Internet as a never-ending global conversation that deserves
the highest
          level of protection the First Amendment has to offer.

          "The most participatory marketplace of mass speech that this
country --
          and indeed the world -- has yet seen," is how Judge Stewart
Dalzell
          described it in his separate opinion. An analogy to end all
analogies, if the
          justices are ready for it.


                                         Copyright 1997 The New York
Times Company