Free Speech on the Internet: Beyond 'Indecency'

ROBERT O'NEIL University of Virginia School of Law

Abstract:

The early returns from the courts in Internet speech cases have been curiously mixed. Despite euphoria over the first CDA case, and several other notable victories on issues including federal encryption export regulation and state content curbs, there is a darker side to this quite incomplete picture. The risk of adverse early precedent is well illustrated by the Sixth Circuit's Thomas decision, uncritically applying print obscenity standards to digital material, and the tenth Circuit's Loving decision, which sustained a state university's denial of faculty access to many alt.sex newsgroups.

Perhaps most troubling are two recent district court cases now on appeal -- a judgment in San Francisco sustaining the "virtual child pornography" provisions of the 1996 Hatch Bill, and one in Cleveland upholding the encryption export restrictions (in direct conflict with the earlier decision of a San Francisco federal judge broadly protective of cryptography).

While differences of various sorts exist between the favorable and unfavorable early returns, most striking is the careful preparation and documentation reflectd in cases filed by groups like the American Civil Liberties Union, the American Library Association, Electronic Frontier Foundation and others. Success in challenging future threats to speech in cyberspace will depend substantially on the strength and coordination of such efforts.

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