Internet law again loses in court Decency act ruled unconstitutional by judges in New York; Protected communication; Statute tries to shield minors from sexually explicit material


NEW YORK -- A second federal court declared unconstitutional a law aimed at protecting children from sexually explicit content on the Internet, ruling that the measure violates protected indecent communication between adults.

Yesterday's decision by a three-judge panel in New York, consisting of a federal appeals judge and two federal district judges, came in an Internet publisher's lawsuit to stop enforcement of the Communications Decency Act of 1996.

The act seeks to ban the use of Internet computer services to display "patently offensive" sexually explicit material available to people under 18.

The case was brought by Joe Shea, the publisher of a Los Angeles-based online newspaper called the American Reporter.

The ruling follows a similar victory for online companies in June, when another federal court in Philadelphia ruled the same law unconstitutional.

"Freedom of expression should be allowed on the Internet without restrictions," said Wayne Matelski, Shea's attorney. "It is a very definite victory for Internet users."

The Justice Department has said it will appeal the Philadelphia ruling. It didn't have immediate comment on yesterday's ruling. The government has voluntarily suspended enforcement of the law until the U.S. Supreme Court makes a final determination on the act.

The Electronic Privacy Information Center in Washington, a lobbying group that is one of the plaintiffs in the landmark Philadelphia case, said the New York ruling would help online providers prevail in their challenge before the U.S. Supreme Court.

The 70-page ruling yesterday was issued by Judge Jose Cabranes of the U.S. Court of Appeals for the Second Circuit in New York and Judges Denise Cote and Leonard Sand of U.S. District Court in New York.

"The plaintiff has demonstrated a likelihood of success on his claim that [the law] is unconstitutionally overbroad in that it bans protected indecent communication between adults," the judges said.

The New York court failed to find that the decency law is "unconstitutionally vague," as Shea had asserted. Nevertheless, the intrusion on legal indecent communication between adults was enough to block the act, the court said.

The law is the first U.S. attempt to regulate the explicit material that is easily transmitted through computer networks.

America Online Inc., CompuServe Corp. and other online publishers would be threatened with criminal penalties if the law were to be upheld. China, Singapore, Germany and other countries have taken steps to regulate the Internet. CompuServe and America Online were part of an investigation in Germany earlier this year, causing CompuServe to temporarily block access to 200 sexually explicit sites.

"The Internet is a global decentralized communications environment," said Marc Rotenberg, director of the Electronic Privacy Information Center. "Attempts by national governments -- as if this were simply broadcast television -- are necessarily going to fail."

Pub Date: 7/30/96

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