There is no substitute for supervision

By David A. Splitt

David A. Splitt , an authority on school law, is general counsel for the University of the District of Columbia and the District of Columbia School of Law.

Public school systems across the country have been scrambling to provide access to the Internet for their students and teachers. But like first-timers on Germany's Autobahn, many educators quickly discover there are no speed limits on the web--and no escape from the fast lane. Worldwide access to everything is just that: access to everything, including material that is definitely unsuitable for students. Faced on the one hand with cybersmart kids who seem to have been born with the ability to manipulate computers, and on the other with a medium of information exchange that can bring those kids face-to-screen with stuff that would make George Carlin blush, school administrators have been looking for ways to limit access to inappropriate material and minimize on-line mischief.

Believing that the simplest solution was to remove offensive material from the web, some educators and community leaders lobbied for federal legislation to tame the seamier side of the Internet. Congress obliged with a law guaranteed to make the most of the political potholes dotting the information superhighway: the Communications Decency Act of 1996. This statute declared that any person 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 which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," could be fined and jailed for up to two years.

The law also made 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." Anyone who knowingly permitted any telecommunications facility under his or her control to be used for any of these prohibited activities could also face felony charges.

With this law, the decency flacks pronounced, the web would become a safe place for the minds of our youth. The lawmakers had indeed been thorough, but they had let politics cloud their awareness of one important factor: the First Amendment to the U.S. Constitution.

A worldwide conversation

The American Civil Liberties Union --joined by several dozen other groups, including free-speech activists, publishers, journalists, software vendors, and on-line communications services--filed a lawsuit that stopped the new law in its tracks. In early June, a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction voiding the offending provisions of the law as "unconstitutional on their face to the extent they reach indecency." The court added that enforcement of the law was enjoined because "no party has any interest in the enforcement of an unconstitutional law."

The court's voluminous opinion filled almost a hundred pages, but its conclusion can be stated succinctly: Draconian measures to rid the Internet of offensive material are unconstitutional, and they won't work. "The Internet may fairly be regarded as a never-ending worldwide conversation," wrote Judge Stewart Dalzell in the opinion's most quoted passage. "The government may not, through the Communications Decency Act, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

Both the nature of the Internet as an information resource and a superconnective party line, as well as the impossibility of defining the limits of indecency within the context of the web, make it impossible to create a law that sets rational limits without restricting legitimate content. Consider the disputes that arise when school boards try to differentiate between pornography and literature in a school library. Folks just don't agree on what is acceptable. In the high school library, one easy solution is to put Catcher in the Rye and Ulysses in a reserved section. But that doesn't work on the web, because all the "shelves" are interlinked, and there is no "head librarian." Supervision of the Internet is scattered among many thousands of computer sites. The web is just "out there"--and what it is that's out there changes by the minute. A technical discussion would fill more than every page in this magazine, but suffice it to say that the court was convinced beyond any doubt that the content of the Internet is, for all practical purposes, uncontrollable.