SAN FRANCISCO--When the Supreme Court begins deliberations next week on whether to uphold a lower court decision striking down the Communications Decency Act, Mike Godwin hopes the discussion will turn to an often-overlooked aspect of the First Amendment.
The 45-word amendment not only prohibits the U.S. government from curtailing citizens' and reporters' rights to say what they please within certain boundaries, but it also safeguards the right of "peaceable assembly," and this is crucial to proving the case against the CDA, said Godwin, an attorney for the Electronic Frontier Foundation, in a discussion on the opening day of the Seventh Conference on Computers, Freedom and Privacy, which is being held here.
The CDA, which criminalizes the online transmission of sexually explicit materials to minors, would hamper the proliferation of the multifaceted discussion groups springing up on the Internet among people of all political views, races and religious backgrounds, he argued. As life in the U.S. becomes more isolating for many, with lively discussions across backyard fences and in public spaces practically extinct in most communities, the Internet has arisen as the new town square, said Godwin, who helped prepare the legal brief submitted to the high court by CDA opponents last week.
"This is the first mass media ever that allows people to get back some of that sense of community that we have lost," Godwin said during a discussion on Constitutional law in cyberspace. While the framers of the Constitution said specifically that citizens can assemble "to petition the government for a redress of grievances," the First Amendment also protects the right to any kind of nonviolent assembly, he said.
Godwin drew a distinction between television and radio--which he called "the bastard stepchildren of the First Amendment, entitled to some protections but not others"--and the Internet, saying that legislators often feel compelled to regulate new media, since information can still be more or less freely disseminated via the old ones.
And while there is general agreement that some communications, such as sexually explicit speech, should be regulated on television, the CDA could potentially place a prior restraint on people's rights to publish online the same types of explicit discussions which are Constitutionally protected in books and magazines, he added.
"The courts have never heard a case like this before," Godwin said. "There has never before been a situation where an individual could reach mass audiences just as large newspapers, radio stations and television stations can." If the CDA is upheld, the opportunity to inexpensively disseminate information would vanish for many, he said.
On March 19, the Supreme Court will take up the Department of Justice's appeal of the lower court ruling against the CDA last summer. The legislation, passed in February 1996 as part of the wide-ranging Telecommunications Act, was immediately challenged by the American Civil Liberties Union and Internet free-speech advocates including the EFF, along with more than 50,000 individual Internet users.
A final decision from the high court is not expected until later this year.
The CFP conference, attended by about 300 legal experts, software developers, educators and free-speech advocates, continues through Thursday. Tomorrow, a keynote speech is scheduled to be given by Ira Magaziner, senior advisor on policy development to President Clinton.