The advances made in the area of information technology, even in the last decade alone, are nothing short of breathtaking, with groundbreaking revolutions in communications media and technology occurring one after another. But of all the advances in communications achieved in recent years, the new global medium known as the Internet is the most radical innovation. A medium unlike any other ever before, its potential of versatility, accessibility, and ease of use is thrilling, not only to those specializing in technology or communications, but also to every person in our society today. With its development, however, has come an ethical difficulty whose resolution will have a profound and direct effect on the future of this resource. This is the issue of what communications one is permitted to make on the Internet - in a word, censorship. Will the Internet continue, as it has been, to be a great marketplace of ideas and information -- an energetic and never-ending global conversation, spanning an infinite range of topics and opinions? Or will it perhaps become a strictly controlled and regimented medium, with input effectively restricted to an elite few who have the resources of time, money, and manpower to carefully monitor their every word that enters cyberspace? Will it become a medium existing under the shadow of a vast and spreading range of words that must not be spoken and topics that one dares not broach, lest keen-eyed government regulators come swooping down? Such are the questions surrounding the censorship issue, questions which the opponents of government regulation of this medium have been asking with varying degrees of anxiety and anger, as time and again, attempts have been made to impose special controls upon what enters cyberspace. Attempts like this are, no matter how well-intentioned, not only in violation of the Constitution of our country but also highly threatening of the Internet's unique nature as a free and incomparably accessible public forum.

In the several court cases which have ensued over the issue of government controls of Internet content, it has generally been acknowledged by all parties that an elementary understanding of the Internet's nature and origins is vital to informed evaluation and judgment of censorship issues. The reason for the especial importance of this is the Internet's status as an entirely unique medium; issues of its control must be heavily influenced by consideration of the manner of its function and structure.

The Internet is not a physical or tangible entity, but rather a giant network interconnecting innumerable smaller groups of linked computer networks. It is thus a network of networks. In these smaller "local area networks," computers are electronically linked to each other in order to exchange files and messages so data stored on one unit can be manipulated by another. Though some are "closed networks," not linked to outside computers or other networks, many are linked to other networks In a manner which permits each computer in any network to communicate with computers on any other network in the system. The resulting global web of interlinked networks and computers is referred to as the Internet.¹

The Internet began as a defense project of the U.S. A division of the Defense Department created the "ARPANET" in 1969. Originally a network of four server units, it was created for military research so information stored would be decentralized and redundant; it would sustain vital research and communications even if portions of the network were damaged in a nuclear war.² "From its inception the ARPANET was... a decentralized, self-maintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control."³ As technology progressed over the next two decades, this network grew in size and speed. Standards such as the TCP/IP data transmission protocol were introduced as the ARPANET gradually lost its military emphasis and became the domain of civilian scientists and centers of research and education. In 1990, the HyperText Transfer Protocol (HTTP) was created to standardize document transmission and reception.⁴ While ARPANET was maturing, similar networks such as BITNET, CSNET, FIDONET, and USENET evolved, linking universities, research facilities, corporations, and individuals around the world. Eventually these networks (many of which overlapped) were themselves linked together and to ARPANET, which came to be called the "DARPA Internet" and finally just the "Internet."⁵

The Internet is the world's first successful anarchy. No single entity - academic, corporate, governmental, or private - administers or owns the Internet. It exists and functions as a result of hundreds of thousands of individual operators of computers and networks independently deciding to use common data transfer protocols to exchange communications and information. Ownership is piecemeal, such as the wildly diverse ownership of servers, connection lines, modems, and, of course, individual computers. "There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information."⁶

The Internet encompasses several basic elements: bulletin board systems (referred to as BBSs); email; Listserv; USENET; Internet relay chat (IRC); and, perhaps most importantly, remote information retrieval.

Individuals, organizations, and businesses can cheaply offer dial-in computer bulletin board services for exchange of ideas and information. BBSs range from extremely small-scale affairs capable of accommodating only a single user at a time to very large setups simultaneously servicing hundreds of users.

Email is the electronic equivalent of sending a first-class letter. Email on the Internet is not routed through a central control point, but rather is divided into small data packets and routed over varying paths to its destination.

Listservs (a.k.a. "mail exploders") allow communication about subjects of interest to groups of subscribers, who can submit email messages to the list which are automatically forwarded to all subscribers. Currently, there are hundreds of thousands of Listserv subscribers; most of the Listservs are not moderated; i.e., any subscriber who wishes to forward a message may do so. (Considering the volume of such messages, moderation is a difficult task.)

USENET message databases are similar to Listservs in function, differing in how information is distributed. In the newsgroups of USENET, one of the most popular applications of the Internet, every imaginable topic is discussed. The messages of USENET newsgroups are not sent as email but rather are disseminated via ad hoc connections between approximately 200,000 USENET servers around the world. Some groups are moderated, meaning messages are screened for content and relevance before they are publicly posted online; however most are not; as with Listserv, moderation is a substantial task, given the prodigious number of messages involved.⁷

Internet relay chat, or IRC, is real-time communication. IRC allows two or more users to type messages which appear almost immediately on each other's screens. It is roughly analogous to a telephone party line. An any one time, there are thousands of "channels" available and tens of thousands of users online in them. Some are moderated by "channel ops" but many are not.

Remote information retrieval consists of search and retrieval of information located on remote computers. "Ftp"(file transfer protocol) is the simplest of the primary location methods. It lists files available on a particular remote computer and transfers one or more to an individual's local computer. The "gopher" location method actively searches resources on remote computers. The third primary location method is the World Wide Web (WWW or W3C). The WWW is a series of documents stored in different computers all over the Internet, each document having a unique address by which it can be located. Originally developed at CERN, the European Particle Physics Laboratory, the Web was initially used to allow information sharing among dispersed teams of scientists and engineers. It eventually spread from the scientific and academic community to include communication by individuals, organizations, and businesses. It uses the formatting laws of a code called HTML, which is interpreted by users' browsing programs to display text, images, sound, and video. HTML documents usually include links which, when selected by a user, display referenced documents wherever in the world they are actually stored, allowing efficient location and viewing of information and leading to new forms of information structure.⁸

The World Wide Web exists fundamentally as a platform through which people and organizations can communicate. Publishing information on the Web requires little more than a computer connected to the Internet and running the appropriate WWW software. There is a vast universe of documents filling the Web, ranging from hastily typed plain text documents to the elaborate displays of various corporations' sites. The power of the Web stems from the ability of links to point to any document, regardless of its status or physical location, thus guaranteeing a voice to anyone who wants one. Common information storage standards and transfer protocols allow for extraordinary ease of communication. The Web is designed so that organizations with computers containing information can become part of the Web simply by attaching their computers to the Internet and running appropriate software. Despite the user's perspective of the Web as a single entity, no single organization is capable of controlling membership in the Web, nor is there any centralized point from which individual sites can be blocked from it.⁹

This ease of publication and unregulated flow of information has led to some instances of abuse of the medium, which aroused concerns from parents, political lobbying groups, and politicians, beginning in the early and mid 1990's. One of the earliest related bills to appear before the Senate was called "The Protection of Children from Computer Pornography Act of 1995."¹⁰ Though it was not enacted into law, it led the way for a bill known as the "Communications Decency Act," or CDA, a statute whose excessively wide-ranging restrictions posed the greatest threat to free speech on the Internet before or since its time.

The Communications Decency Act (CDA) of 1996 constituted Title V of the Telecommunications Reform Act of 1996. Immediately after it was signed into law, various groups filed suit for an injunction against it on grounds of unconstitutionality. After a lengthy legal battle spanning nearly a year and a half, it was at last decided by the Supreme Court that it was indeed unconstitutional, which ruling marked a historic victory for free speech on the Internet.

On February 8, 1996, the very day that President Clinton signed the TCR Act into law, the American Civil Liberties Union, representing a coalition of twenty plaintiffs, filed suit in the District Court of the Eastern District of Pennsylvania, seeking an injunction against the law on the basis of unconstitutionality. Shortly thereafter, the American Library Association, heading another coalition of plaintiffs, filed suit in the same court, and the two cases were consolidated into ACLU v. Reno. The consolidated hearings ran through March and April of 1996, with extensive oral arguments on May 10.¹¹

The plaintiffs did not challenge the CDA statute's ban of child pornography or obscenity (already prohibited before the CDA) but focused their challenge on two provisions of section 502 of the CDA which amend 47 U.S.C. 223(a) and 223(d).¹²

Section 223(a) provided in part that any person in interstate or foreign communications who, "by means of a telecommunications device" "knowingly makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image, or other communication that is obscene or indecent, knowing that the recipient of the communications is under 18 years of age" "shall be criminally prosecuted."¹³ At first glance this does not appear a terribly bad idea -- but there are profound dangers in the terminology used, namely the vague, undefined, and easily manipulated word "indecent." But the next section is far more dangerous.

Section 223(d) (a.k.a. the "patently offensive" provision) makes it a crime to use an "interactive computer service" to send or "display in a manner available" to a person under age 18 "any comment, request, suggestion, proposal, image, or other communication that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication."¹⁴ So in other words, anything "patently offensive" by "contemporary community standards" is illegal, everywhere on the public internet. To make matters even worse, provisions in 223(a)(2) and 23(d)(2) criminalize permitting "any telecommunications facility" under one's control "to be used for any activity prohibited in 223(a) and 223(d)."¹⁵ In effect, this means ISPs are responsible for anything and everything its users email, post to a newsgroup, or put on a web page. No exceptions are made for material of scientific, literary, educational, or artistic value.

On June 12, 1996, the three federal judges who heard the case of ACLU v. Reno unanimously found the CDA unconstitutional on the basis that it violated not only the First Amendment by unduly restricting the free speech of adults, but the Fifth Amendment as well by the vagueness of the provisions' terminology, which fails to clearly inform one what is illegal and which gives prosecutors excessive latitude in interpreting the law. In addition, they unanimously agreed that the CDA failed the "strict scrutiny" test, that is, it was not narrowly tailored to achieve a compelling government interest.¹⁶ But on July 1, the Justice Department filed an appeal of the ruling. Oral arguments before the Supreme Court began on March 19, 1997, and on June 26, the justices ruled, 7-2, that the CDA was unconstitutional, for the same reasons as the Pennsylvanian court had found it so.¹⁷

Although it is true that the continuing efforts to control the Internet's content are not all identical to the provisions of the CDA, as a landmark case and as the most expansive censorship effort to date, it encompasses most of the ideas which have been brought up in the more recent cases. Indeed, elements of its wording appeared in subsequent legislation to control the Internet. Its many weaknesses therefore can serve as excellent examples of weaknesses in the case for Internet censorship, although they would not all be problems posed by all subsequent legislation.

The primary problem with the CDA was its violation of the First Amendment. As the Supreme Court held in Ginsberg v. New York (1968), the government does have a compelling interest in protecting minors from indecent speech, with the caveat that it may prohibit dissemination of indecent materials to minors only so long as it does not at the same time prohibit dissemination to adults, as stated in FCC v. Pacifica Foundation (1978). For, "indecent speech, unlike obscene speech, is entitled to constitutional protection because it often has substantial social value and lacks prurient interest."¹⁸ It cannot therefore be regulated unless restrictions are justified by "compelling government interest" and "are narrowly tailored to advance that interest" -- Turner Broadcasting System v. FCC (1994). Under the Supreme Court's so-called Miller standard of obscenity established by Miller v. California (1973), "Obscene materials are those which are (i) prurient and (ii) patently offensive under contemporary community standards and which (iii) lack significant scientific, literary, artistic, or political ("slap") value." "Cases in recent decades have indicated that only visual images -- photographs and film -- will be held obscene, as pure text is always found to have at least minimal literary value."¹⁹ Possession and distribution of obscene material was already illegal before the CDA, whose contribution was to outlaw "indecency" in cyberspace, "indecency" being, however, as has been shown, protected by the First Amendment and the precedent of numerous court cases. Government agencies are only permitted to minimally regulate indecent material within certain specifically defined contexts, such as requiring "indecent" broadcasting to be limited to hours of the broadcast schedule when children are less likely to be exposed.²⁰ The CDA's censorship of the Internet went unacceptably beyond such limits.

Examples of violations of adults' free speech rights could include such situations as a number of adults in an IRC chat channel -- say, a minor enters. If one adult were to say something "indecent" to another adult in the chat room in a non-private transmission mode (in which all in the particular chat channel can see the message), that adult could have been theoretically be prosecuted under the CDA. The absence of any means of excluding minors from chat (as it is not possible to determine their age) restricts the rights of adults.²¹ In USENET groups and BBSs, adults would always have to carefully censor their speech lest a minor happen across their newsgroup or bulletin board. Sites on the Web would also have had to be monitored for "indecency", no matter if it be of value in politics or education, or have literary or artistic value. This would have constituted an intolerable restriction on free expression, effectively limiting the entire Internet to a child's level. There is clear precedent for declaring this unconstitutional in an analogous case in the non-cyber world. In American Booksellers Ass'n v. Strobel (1985), the Eastern District Court of Pennsylvania issued a permanent injunction on overbreadth grounds of a state law restricting sales of books deemed harmful to minors. It was stated that "the level of discourse cannot be limited to what would be appropriate for an elementary school library"²² -- that being precisely the goal that the CDA sought.

As if violation of the First Amendment was not enough, the CDA, in the vagueness of its terminology, was additionally in violation of the rights of due process guaranteed by the Fifth Amendment. As Judge Ronald L. Buckwalter, one of the judges in the Pennsylvania court case, stated, "If the government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer."²³ Such terms as "indecent," "patently offensive," and "contemporary community standards" are simply too undefined and would leave the way open for abuses, as well as being overly restrictive.

Another weakness in the CDA is the impracticality of laws to censor cyberspace. The Internet is a global medium; U.S. jurisdiction is not. Although most of the material on the Internet originates from this country, a large amount does not. No number of laws passed here in the United States will prevent minors here from accessing "indecent" material that originated overseas. One must keep in mind that on the Internet, physical locations of information are irrelevant. With a click of a mouse button, one can select a link on a site whose information is stored domestically and be instantly transferred to a site whose physical server is across an ocean or even on the opposite side of the globe. Even if the entire U.S.-originating sector of the Internet could be tightly controlled, it would not come close to eliminating "indecency" completely.²⁴

Even if it were not unconstitutional, censorship of the Internet would remain technologically unfeasible. A commonly proposed concept (also included in the CDA) is control of the Internet via control of the service providers; however, those who favor this as an attractive tool for content control betray their failure to appreciate the nature of this medium. "Internet service providers are the common carriers of cyberspace. They provide the lines over which speech on the Internet is shared among individual computers and networks. They do not monitor or censor the content of the speech that flows over these lines. It is no part of their business to do so, and, given the enormous and exponentially growing amount of Internet speech, it would be impossible for them to do so."²⁵ To obey demands for them to act as censors, the ISPs would first have to identify illegal communications; yet as a technical matter, it is simply not possible for an ISP to review all content carried on its lines, filter communications based on content, or identify which of their users are minors and when they're online.²⁶ As Microsoft CEO Bill Gates explained, "Some critics have suggested that communications companies should be made gatekeepers, charged with filtering the content of what they carry. This idea would put companies in the business of censoring all communication. It's entirely unworkable, for one thing, because the volume of communicated information is way too large. This idea is no more feasible than asking a telephone company to monitor and accept legal responsibility for everything that's spoken or transmitted on its telephone wires."²⁷ A number of servers offer free web sites, either providing them to members of certain groups, such as the customers of a service provider, or making advertiser-supported site-hosting available to the general public. The large and growing numbers of Web surfers who have such pages (GeoCities, one of the largest advertiser-supported free hosts, has approximately 20 million members) makes it impossible for these website hosts to monitor page contents. But under the CDA, if one user violated the proscriptions, the host would be responsible for the removal of the offensive material. Not only is this ludicrously unworkable, but it also runs counter to these hosts' mission to provide open access to the Internet. Considering the stated aims of the CDA, it appears unlikely that any efforts the ISPs or website hosting services could possibly make, such as random searches for "indecent" or "patently offensive" communications would satisfy the law's "good faith" provision.²⁸

The legislators who passed the CDA while clamoring about the horrors of child pornography appear to have neglected the fact that extant laws at federal, state, and local levels already apply to obscenity, stalking, and child pornography everywhere, including on the Internet. "[An] example [of this] occurred when America Online user John Delmarle was sentenced to three years' probation... for distributing [images of] 'sadistic conduct' [toward] young children through the Internet. In a similar case, Bently Ives, president of Webb World, was arrested and charged with possession of child pornography."²⁹ He was charged under an extant Texas law which makes it a felony to possess pornographic images of minors and a misdemeanor to promote or possess obscene material. New and redundant laws to outlaw child pornography, obscene material and stalking in cyberspace are unnecessary.

Additionally, proponents of the CDA ignored the fact that children cannot generally get online without the assistance of an adult; signing a user agreement with an ISP to obtain Internet access requires a credit card. It is rightfully the responsibility of the parent or guardian to ensure the child's protection from objectionable matter online. Adults who cannot or will not supervise their children's websurfing can easily obtain filtering software or choose a child-safe service like Prodigy that has built-in filtering, with, for example, access to certain sites forbidden. Filtering software is quite easy to obtain. It is possible to download several such programs from the Internet itself, Internet service providers often offer filtering software to their users free of charge, and several excellent programs are available at any software retailer. Common well-known filtering programs include Net Nanny by Net Nanny Software International, CYBERsitter by Solid Oak Software, Surfwatch by Spy-Glass, Inc., and Cyber Patrol by Microsystems Software.³⁰ Retail prices for these programs average at about thirty dollars. Many sites participate in voluntary rating systems, particularly that of the Recreational Software Advisory Council, whose system is known as RSACi. The RSACi is a completely voluntary rating system which allows web publishers to have their sites rated by the Council for levels of sex, nudity, language, and violence. RSACi ratings are used in conjunction with certain filtering programs, as well as Microsoft's Internet Explorer, an increasingly common Web browsing program. Parents enter security passwords and decide what ratings are appropriate for their children.³¹ These options of user-end control clearly are infinitely preferable to government regulation. The supervision, or lack thereof, of children surfing the Internet is comparable to television's V-chip issue; Congress was highly favorable towards this method of parental screening of television programs to protect children, but with the CDA attempted to eradicate all indecent materialon the Internet.

Proponents of Internet censorship legislation commonly offer government regulation of the broadcast mediums of radio and television as precedent for controls of Internet content. However, these issues are far from analogous.

The government's regulatory involvement in the broadcast media is justified by two rationales. The first of these is the "scarcity of frequencies" argument, which appears in the Supreme Court's decision in Red Lion Broadcasting Co. v. FCC (1969). "In that case, the Court held that there is a finite number of useful broadcasting frequencies, and that the scarcity of this important public resource entails that the airwaves be allocated and supervised by the federal government in ways that best serve the public interest."³² "The second rationale for a special government role in broadcasting appears in FCC v. Pacifica Foundation (1978). In this case the Court argued that broadcasting is an especially 'pervasive' medium that intrudes into the privacy of the home, creating a constant risk that adults will be exposed to offensive material, and children to indecent material, without warning."³³ But, as has been stated above, even in broadcasting, government agencies are only permitted to minimally regulate indecent material within certain specifically defined contexts, such as requiring "indecent" broadcasting to be limited to hours of the broadcast schedule when children are less likely to be exposed, rather than banning it entirely.

Moreover, the Internet is not a true broadcast medium in the mold of television and radio, and these rationales of justification do in no way apply to it. Firstly, the Internet is the furthest thing possible from a "scarce" resource; in fact, of all information resources, it is the most accessible and the easiest to publish in, as has been made abundantly evident in the above exploration of the Internet's structure and operation. Secondly, the Internet is not at all a pervasive medium. "In the world of broadcasting, content is 'pushed' at audiences by TV and radio stations and broadcasting networks-- audiences are primarily passive recipients of programming. In computer communications, in contrast, content is 'pulled' by users from various locations and resources around the globe through the Internet or from the huge data servers maintained by services like Prodigy and America Online. Exposure to content is driven by user choice. For users with even minimal experience, there is little risk of unwitting exposure to offensive or indecent material. It is indisputable that the narrow constitutional justifications for content regulation of two specific types of media do not extend to the all media generally, even though all communications media -- including newspapers, magazines, books, films, and oral conversations -- create some risk that children will be exposed to indecent content."³⁴ In fact, even to simply locate a document on the Web, one must either know the exact site and page address or else utilize a search engine with fairly specific parameters set for the query.

The nearest physical equivalent of the Internet is a public library. "When a person sits down at a computer terminal and explores the Internet, it is almost the same as if they were in a library, took a book off the shelf, and began reading it. The Internet is a printed medium that is accessed using broadcasting communication tools, and should be legally treated as such."³⁵ "There is no justification for treating the printed and electronic word differently. The consequences of doing so will become most apparent in the next century, as printed books and magazines continue to decline in importance compared to the sheer volume of words available online. If the full protection of the First Amendment applies only to books and magazines printed on paper, the the First Amendment will become a historical curiosity."³⁶ The First Amendment's protection of "indecency" in printed matter was established in Butler v. Michigan (1957), in which the Supreme Court ruled that "indecency standards cannot be applied to printed material."³⁷ Under a law such as the CDA, "indecent" printed matter would be perfectly legal if it could be physically held in one's hand or placed in a bookshelf, but if it were to be posted online, it would suddenly become illegal. Such a law would establish an absurd double standard - that minors could legally peruse "indecent" printed material in a library or bookstore which would be illegal if posted on the Internet.

Another fundamental problem with the CDA and similar attempts at Internet censorship is the slippery question of precisely what constitutes "indecency." A section of the CDA defined indecent speech as that which "depicts or describes sexual or excretory acts or organs in a patently offensive fashion under contemporary community standards." But each of these clauses -- "indecent," "depicting or describing," "patently offensive," and "contemporary community standards" -- hides a land mine threatening the future of free speech.³⁸

Obscenity laws which have been deemed constitutional do not establish a precedent for laws such as the CDA because of its term "indecency," which covered a large zone that obscenity laws do not touch.³⁹ "Indecency" is a vague standard long used to prosecute outspoken speech. "Indecency laws in general, the CDA in particular, contain absolutely no exception for speech with scientific, literary, artistic, or political value."⁴⁰ The term "patently offensive" would allow juries to decide material is illegal based on how the jury feels about it. It is an extremely subjective standard; "coupled with the contemporary community standard... it is a recipe for disaster."⁴¹ The "community standard" wording may work adequately in some strictly local situations; however, it does not translate particularly well into a global application. In the case of Internet regulation, use of the "community standard" wording means that material placed anywhere on the Internet must satisfy the standards of every community with Internet access, anywhere in the United States. Judgments on what is "patently offensive" by "contemporary community standards" would vary according to the diverse mores and beliefs prevailing in different communities. But the Internet knows no boundaries -- by whose community standards should the Internet speaker be judged?⁴²

"With increasing frequency, art institutions are placing home pages on the Internet. [Many] have created Web sites or homepages not only to discuss their exhibits and provide a cyberspace forum for art aficionados but also to display art on the Internet. The overbreadth of the CDA's 'indecent' and 'patently offensive' prohibitions ensures that... art appreciation must take a back seat to concern about what the government or certain unspecified 'communities' may deem 'unacceptable.'"⁴³ Such "unacceptable" works of art may conceivably include such pieces as Michelangelo's Last Supper and David, Botticelli's The Birth of Venus, and other renowned classical images of the nude figure which have drawn censure in past years. But the value of unfettered display of art online cannot be exaggerated. Internet users can view paintings drawings, and scultpure housed in museums located thousands of miles away; far more people can be exposed to art via the Internet than by any other medium, due to its unprecedented ability for transmission of information. Also adults are certainly not the only beneficiaries.⁴⁴

Purveyors of online literature face quite similar problems. The term "depicting or describing" confirmed that pure text could be illegal under the CDA. Communities throughout the U.S. have banned such respected works of classical and modern literature as Walt Whitman's Leaves of Grass, James Joyce's Ulysses, Voltaire's Candide, Chaucer's Canterbury Tales, and, of course, Samuel Clemens' Huckleberry Finn, which boasts the distinction of being the most-banned book of all time (banned occasionally for supposed "indecency" as well as for its alleged racism). The CDA gave such communities ostensible legal basis for online book banning, even though the courts have held that removal of hard copies from school libraries violates the First Amendment. Even the Bible, which some communities have on occasion banned from school libraries due to certain passages of a rather explicit sexual nature, could be proscribed online as "indecent." Although many works of classic literature are thus vulnerable, newly composed works by emerging writers may be even more likely to fall prey to the terminology of the CDA and other legislative attempts to stifle "indecency." These writers often depend heavily on the Internet for development of their works and spread of word there for sales. On the Internet, they can share their works with readers and fellow writers, exchange criticism and suggestions, hone their craft, and achieve satisfaction knowing that others are finding enjoyment or inspiration reading their works. But it is a general rule of thumb that no truly profound piece of writing fails to offend someone, somewhere; works placed on the Internet that touch on controversial issues can be expected to be prime targets for those quick to find "indecency."⁴⁵

Medical information is widely available on the Internet, often including descriptions and depictions of sexual and excretory organs in a manner some communities might consider "indecent" or "patently offensive," but which unquestionably have medical, scientific, social, and educational value. Subjects include prostate cancer, breast cancer and preventative self-examinations, breastfeeding, childbirth, and sexually transmitted diseases and their prevention. "Descriptions of these subjects necessarily entails frank and even graphic descriptions that are within the CDA's scope despite their high social, medical, and scientific value... Under the over-broad scope of the CDA, all these [website] authors are subject to the threat of criminal prosecution. Because of that threat, the CDA potentially denies millions of Americans accurate sources of health information that could improve, and in certain cases even save, countless lives."⁴⁶

Certain fields of medical research could be similarly crippled. For many researchers, the Internet is the only available means to collect all the information they require. Over the Internet, hundreds of victims can be interviewed to discuss symptoms, concerns, opinions, means of prevention, and cures. In the course of certain research, discussions can often involve references to sexual and excretory activities and organs. These discussions often include use of specific and even graphic descriptions, but are always central to symptoms of the disorders and the struggle to live with them.⁴⁷ Under the CDA, such research might well have become impossible if certain "communities" were to decide they found it "patently offensive," or if there was any possibility, however remote, that minors could stumble across it.

One section of the CDA confirmed that the federal postal obscenity law applies to cyberspace. This law includes a rarely enforced but technically still-on-the-books law prohibiting passing information regarding abortion across state lines. Hence, posting any education regarding abortion online would be illegal. The information forbidden includes not only information regarding abortion procurement but also even descriptions of the abortion procedures, meaning not only pro-choice presentations but also those of the opposing viewpoint would be proscribed.⁴⁸

Internet censorship legislation could have a paralyzing effect on various activist sites other than merely those relating to the abortion issue. There is no scarcity of sites which pertain to sexual abuse. Some focus on lobbying for more efforts to put a stop to such abuse, while others place a heavier emphasis on giving its victims a place to exchange stories, poetry, and comfort; nearly all, however, involve at least some descriptions of sexual abuses which could easily be deemed "indecent" or perhaps even "harmful to minors" and which would thus make them illegal under laws such as the CDA. But it should not be regarded as undesirable to permit minors' participation, as sexual abuse is most commonly perpetrated on minors. It is essential to the activities of various human rights groups to inform on the nature of the violations of human rights which they protest. "Too often such abuses include physical atrocities relating to the victims' sexual or excretory organs. However distasteful, difficult, or 'offensive' this topic may be for some to confront, it is speech of truly serious social and political merit. Educating about human rights abuses and persuading people to fight against them is a vital form of speech on the Internet."⁴⁹

Accuracy in journalism is also threatened by Internet censorship efforts. Accurate reports of news items can often involve discussions which could be - and indeed often are - considered "patently offensive" by some. Under the CDA, news items which it would be perfectly legal to publish on the first page of a newspaper would be illegal if posted online. And what is more, not merely the news sites which post these articles would be at risk, but the many sites which provide links to these sites would also be liable to criminal prosecution, as the sources to which they refer may include depictions or descriptions which some might deem "indecent" or "patently offensive." (Excerpts from the Kenneth Starr report on President Clinton, for example.) But these link-offering sites are often small operations and cannot identify such matter or edit their sources to delete it; their lists of links are generally too extensive to monitor.⁵⁰

The examples of online activism and journalism are particularly indicative of free speech's essential importance in a democratic society. Whether by chance or design, censorship invariably becomes a political weapon, whether subtle or overtly used; as history teaches us, the first target of government repression in never the last. As was stated in the conclusion of the Supreme Court in ACLU v. Reno, "...Content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig."⁵¹ "The Supreme Court has written that... freedom [of expression] is 'the matrix, the indispensable condition of nearly every other form of freedom.' Without it, other fundamental rights, like the right to vote, would wither and die."⁵² Free expression is necessary to our system of self-government. It gives Americans a checking function against government excesses and corruption. "Mass ignorance is a breeding ground for oppression and tyrrany."⁵³ An excellent example of an overt form of Internet censorship as a political weapon can be found in China, where in the name of security and social stability, Internet and email users are required to register so that the government can monitor their activities.⁵⁴

The viable alternative to government regulation of cyberspace is self-regulation, involving the user-side filtering software and voluntary ratings systems which have been discussed here. Parents, not the government, need to take control of the situation and protect the innocence of their children. Though parentally controlled software is not perfect in that it relies on human intervention, it is a much better solution than governmental censorship in that it does not alienate fundamental rights under the First Amendment, allows Internet users to keep their right to freedom of expression, and does not impose limits on those outside the jurisdiction of United States law.

The Communications Decency Act of 1996 and comparable legislature authorizing government regulation of Internet content would destroy the Internet as an easily accessible medium of free speech. They would constitute a violation of the First Amendment, limit the entire Internet to a child-safe level of discourse, hold ISPs liable for Internet content over which they have virtually no control, violate the Fifth Amendment, fail to take into account objectionable material originating overseas, fail to go with the "least restrictive" method of protecting minors from harmful material, become a redundant addition to pre-existing laws criminalizing obscenity and child pornography, limit the ability of individuals and groups to obtain a voice in cyberspace, curtail the promotion of art and literature, deal a staggering blow to medical research and education, and cripple journalism and human rights activism on the Internet, besides serving as the first step toward possible restrictions on political speech there as well. The only constitutional and practical solution is a more energetic implementation of user-side filtering software and voluntary ratings systems. The Internet is an unprecedented and powerful medium of information exchange which will revolutionize life in this Information Age. To rush headlong into the supposed panacea of government regulation would be a terrible injustice to the current generation of Internet users, an even greater one to those to come.