How High the Toll?

A new federal law that attempts to control on-line information threatens the First Amendment rights of student journalists and advisers

WASHINGTON, D.C. — The debate over how to deal with “indecent” material getting into the hands of minors via the Internet and computer networks may finally be over, at least from Congress’ view. For media advisers, college and high school students and others who are concerned about First Amendment rights, the debate is just beginning.

On January 31, Congress overwhelmingly passed a new telecommunications law. The bill passed the Senate on a vote of 91-5, and the House on a vote of 414-16. President Clinton signed the bill on February 8.

The bill would establish criminal penalties for transmitting “indecent” material or making available “patently offensive” material to a person under the age of 18 by means of a computer network.

Anyone who “knowingly” transmits such information could be punished by up to two years in jail and fined as much as $250,000 for an individual and $500,000 for a company or business entity. The language would protect on-line providers, such as America On-Line, from prosecution if their systems are simply the means by which someone else transmits “indecent” material.

Indecency is defined in the bill as any communication “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” This limitation goes far beyond the legal definition of “obscenity” that the U.S. Supreme Court has said can be punished in printed materials.

Those opposed to the regulations said the “indecency” standards, which have been used in broadcast regulation cases, are too vague and would seriously restrict the potential of the emerging on-line medium.

Supporters say the bill would remove a lot of “smutty” material that is now openly accessible to anyone with an on-line account, including children.

Two large groups have filed challenges against the law in federal court in Philadelphia seeking declaratory judgments that these provisions are unconstitutional. Both actions challenge the indecency restrictions on the grounds that they violate the First Amendment and are too vague.

The American Civil Liberties Union, Journalism Education Association and Society of Professional Journalists are among the groups that have joined in the lawsuits.

In February, federal Judge Ronald Buckwalter granted a temporary restraining order enjoining the government from prosecuting anyone under the “indecency” provision of the new law.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit was convened to hear the case in late March and April.

Candace Perkins Bowen, president of JEA has submitted an affidavit containing reasons why the organization is involved in the case.

Bowen said if the new law stands it could put advisers and their jobs in jeopardy because they will be responsible if the student retreives “indecent” material by computer.

Bowen added, “Advisers don’t hunker over kids when they are on computers” so it is unfair to put the responsibility entirely on the teacher.

reports, Spring 1996