Communications Decency Act (CDA) Defeated

The Communications Decency Act, which is part of the recently-passed Telecommunications Bill, has been criticized by some for being too broad in it's goal of penalizing "indecent speech" on the Internet. Supporters of the Act, such as Senator Jim Exon (D-NE), contend that it is geared toward protecting children from accessing pornography on the Internet.

The judges decision rests on two major premises: First, that the nature of the Internet itself makes it difficult for content providers to determine the age of users; and second, that the CDA's goal of censoring "indecency" on the Internet is far too broad in scope to allow for consistent enforcement of the law.

In a decision that reaches into a detailed explanation of Cyberspace, and an often-profound examination of the implications of the Internet as a radically different and new form of communication among individuals and groups, the judges argued that the very unique nature of the Internet in itself makes censoring speech in Cyberspace unconstitutional.

In his Opinion on the decision, Chief Judge Sloviter writes, "We have found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution."

The judge contends that the very vagueness of the law presents a threat against free speech, as there exists a possibility of prosecution due to a "miscalculation of the prevalent community standards" as to what constitutes indecency.

In his decision, Sloviter writes, "First, it is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring. Criminal prosecution, which carries with it the risk of public obloquy as well as the expense of court preparation and attorneys' fees, could itself cause incalculable harm."

In a prepared statement, the CDA's chief author, Senator Jim Exon said, "while I do not agree with the judges' decision today, I respect their right to make it. The court has taken the ACLU line that anything goes on the Internet, even though that overlooks well-established laws protecting children from pornography in other areas. Hopefully, reason and common sense will prevail in the Supreme Court."

For more information on the CDA and other issues of privacy and free speech, check out the following websites: