FREE SPEECH FOR THE NET

It's been a suspenseful spring in cyberspace. Everyone has felt it, from the folks who gather for online chats at Bianca's Smut Shack to the Netizens who post daily dispatches to the "fight censorship" E-mail list. The whole information revolution was jeopardized, the cybernauts believed, by a primly named federal statute called the Communications Decency Act. Signed into law by President Clinton on Feb. 8, after being passed by an admittedly Net-illiterate Congress, the CDA was supposed to squelch online pornography and make the Net safe for children by banning "indecent" content. But the legislation was so vague and broad that uploading Ulysses to the World Wide Web could have been construed as a felony offense punishable by a $250,000 fine and two years in jail. If that's the kind of treatment James Joyce would get, what hope would there be for poor Bianca and her Smut Shack?

Relief came last week in a landmark ruling that firmly extends the umbrella of the First Amendment over cyberspace. A panel of three federal judges, specially convened in Philadelphia to review the new law, pronounced the government's attempt to regulate online content more closely than print or broadcast media "unconstitutional on its face" and "profoundly repugnant." The Justice Department was enjoined from not only enforcing the act but even investigating alleged malfeasance, at least for now.

The court went further than the most ardent civil libertarians had dreamed. In a striking 175-page memorandum that was published online within minutes of being handed down, the judges declared the Internet a medium of historic importance, a profoundly democratic channel for communication that should be nurtured, not stifled. Because the Net is still in its infancy, the judges said, it deserved at least as much constitutional safekeeping as books and newspapers, if not more. "As the most participatory form of mass speech yet developed," wrote Judge Stewart Dalzell in an eloquently crafted opinion, "the Internet deserves the highest protection from governmental intrusion."

The unanimous ruling was hailed by civil libertarians as a signal moment in the struggle for free speech. "This is as historic a case as we've had in our history of First Amendment fights," said Ira Glasser, executive director of the American Civil Liberties Union, which led the court challenge on behalf of some 50 plaintiffs ranging from the American Library Association to Microsoft. Marc Rotenberg of the Electronic Privacy Information Center called the decision "the Times v. Sullivan of cyberspace," a reference to the 1964 Supreme Court decision that granted broad protection to journalists.

The legal battle is not over yet. The Department of Justice has 20 days to decide whether to ask the Supreme Court to review the case. While a Justice Department spokesman was noncommittal last week, lawyers for the government said from the outset that they would appeal an adverse decision to the highest court. Which is where proponents of the CDA say the case belongs. "We wrote this law based on previous Supreme Court decisions that have a lot of merit, so it will be looked on very carefully," says Senator J. James Exon, who introduced the original bill and believes, despite last week's rebuke, that it will be sustained.