On June 26, The United States Supreme Court took its first dip into the unknown legal waters of the Internet. The court ruled 7-2 to uphold a 1996 decision by a federal court in Philadelphia which deemed that the federal Communications Decency Act violated the first amendment.

This Act was a last minute addition to the 1996 Telecommunications Act passed by the US Congress. It restricted the free access and transmission of information on the Internet under the guise of protecting children from sexually explicit material.

The legislators chose vague wording such as "indecent" and "offensive" rather than "obscene," over which there has been much litigation involving print and other media. At the time, it was suggested that some legislators supported the Act while expecting and hoping that it wold be struck down by the Court.

The Supreme Court viewed the legislation as too broad and vague and that it restricted material that was constitutionally protected for adults. Under the Act, the transmission of "indecent material" over the Internet to minors was punishable by two years in prison and a $250,000 fine. The legislation cited indecency and material that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" as cause for restriction. Yet it provided no precise definition of any of these terms.

"The vagueness of such a regulation raises special first amendment concerns because of its obvious chilling effect on free speech," Justice John Paul Stevens wrote in his opinion. "As a matter of constitutional tradition...we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it."

Justice Susan Day O'Connor and Chief Justice William Rehnquist wrote in their dissent that they believed the Act did not hinder first amendment guarantees on the grounds that it attempted to create adult "zones" on the Internet, which outside cyberspace do not contravene the Constitution.

"... the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults," Justice O'Connor wrote. "Because the rights of adults are infringed only by the "display" provision and by the "indecency transmission" and "specific person" provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent.

"Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained."

The American Association of University Professors agreed with the Court's conclusion that freedom of expression outweighs the benefits of censorship. "The Supreme Court's decision will allow faculty members and students to continue to explore creative uses of the Internet for teaching and research," AAUP Associate Council Jonathan Alger said in press release. "Although technology may be relatively new, the types of ideas conveyed through it, and the objections raised to such expression, are not."

The Supreme Court decision was anticipated by a federal district court in New York which blocked New York State from enforcing its own version of the Communications Decency Act on June 20. The 1996 law, challenged by the American Civil Liberties Union and the American Library Association, would have brought with it a jail term of up to four years for communicating "indecent" words or images to a minor.

Although the Supreme Court decision is an immediate victory for free speech advocates such as the Electronic Frontier Foundation and the American Civil Liberties Union, it is unlikely that the Communication Decency Act's supporters will accept defeat lying down. While organizations like Family Research Council still favor some kind of government regulation of the Internet, it is more likely that they will have to work with government and industry to develop more versatile family-oriented Internet monitoring devices.

Already President Clinton has stated that he approves of the development of some kind of Internet V-Chip to block material that consumers don't want to see. Also, Democratic Senator Patty Murray has drafted a bill which she hopes will further encourage parents to monitor what their children access online as well as provide industry with incentives to develop a ratings system for the Internet.

However, the fundamentalist lobby will likely press for further legislation which in turn will lead to more litigation.

For example, On May 8, the American Civil Liberties Union filed a challenge to a Virginia law that bans state employees from viewing "sexually explicit" material online. The lawsuit was filed on behalf of six Virginian university professors who contend that the law restricts freedom of speech by obliging professors and other state employees who wish to download, post, transmit or store sexually explicit material on their computers to first ask for approval in writing from agency, department, faculty or administrative supervisors. Literary web sites that may be forbidden to state employees in Virginia include the English Poetry Full Text Database as well as web sites that contain certain works by Tennyson, D.H. Lawrence, Walt Whiteman and Allen Ginsburg.

The current Internet debate also raises interesting questions on an global level. Will measures taken by the US government and the American computer industry also restrict access to information in countries other than the United States by virtue of the technology they use?

Per capita, Canadians are the most "internet-worked" people on the planet, yet we are also highly dependent on American developed web browsers such as Netscape Navigator and Microsoft Internet Explorer to communicate and maneuver around the Internet.

Will Canadian minors be subjected to the same restrictions as American minors? What about Canadian adults who surf the net? Will they too be obliged to comply with extraterritorial rules and standards in a realm which knows no territory? How will these standards be enforced? Will they apply only to Internet sites based in the United States or can Internet sites which distribute pornography to minors in Europe or Asia, or even Canada, be prosecuted, and if so by whom?

Finally, what will the Canadian courts say when faced with issues similar to those before the US Supreme Court?

Matthew Kerby is a graduate student at the Norman Paterson School of International Affairs, Carleton University.

The US Supreme Court Decision can be found at http://www.aclu.org/court/renovacludec.htm. The 1996 Telecommunications Act can be found at http://www.fcc.gov. The American Civil Liberties Union web page can be found at http://www.aclu.org.