How we got a “Communications

Decency Act” and how we

can prevent similar missteps.

By Chris Leedy and Richard Wieland

nce upon a time, advocates of the Communications Decency Act (“CDA”) described it as an effort to protect young Americans from smut transmitted by the Internet and other electronic media.

     Today, few see it as a rational means to that end. On June 12, 1996, a specially appointed federal judicial panel barred the U.S. government from enforcing the CDA, ruling it unconstitutional; and on June 26, 1997, the Supreme Court agreed, finding that the First Amendment applies to the Internet and ruling the CDA, despite its laudable objectives, was too vague and too broad. “Governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it,” wrote Justice Paul Stevens. “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

      Well in advance of that ruling, the governmental tide had turned decidedly against the act. In January 1997, Congressional Internet Caucus co-founder Sen. Patrick Leahy (D-Vt.) introduced legislation to revoke it. Even the Clinton Administration, which had championed the CDA before the High Court, has at least tacitly retreated from its position by announcing a “hands-off” policy on the Internet, particularly as regards cyberspace commerce, in May 1997.

      So, in simple terms, the CDA was the wrong solution — bad for the Internet, bad for the First Amendment of the Constitution, bad for business.

      But in that simple analysis something important is lost: How the CDA came to exist in the first place. Examining that issue is instructive for understanding both how a laudable idea could turn into such a legislative albatross and how the problems of applying “real” law to “virtual reality” might be more rationally resolved.

Continued...

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