FREE SPEECH FOR THE NET

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The proponents of the CDA are fueled by outrage that hard-core pornography can be found on a computer network to which children have access. "We're talking about material going into the hands of young people whose lives can be permanently altered," says Mike Russell, spokesman for the Christian Coalition, which campaigned hard to get Congress to do something about it.

But the Philadelphia jurists (two Bush appointees, one Carter) found no indication that children were at particular risk to exposure to smut online--TIME's controversial "cyberporn" cover story last summer notwithstanding. In a kind of Socratic online safari, the judges spent weeks learning their way around the Net. Guided by experts who brought computers and an Internet connection into the courtroom, they searched for online porn and tested software that allows parents to screen out offensive material. They finally concluded that whatever danger was posed for kids by the presence of "indecent" offerings online was best addressed by parents or teachers. Obscenity and child pornography, the judges noted, are already illegal under current statutes.

"There is no evidence that sexually oriented material is the primary type of content on this new medium," they wrote. "Communications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden." The judges found that dicey material--whether from Bianca's Smut Shack or Playboy magazine's hugely popular site--was generally preceded by warnings admonishing those under the age of 18 to keep out. Even the government's own expert witness acknowledged that the odds were slim that a user would come across a sexually explicit site by accident.

The contrast between the court's view of the Net and the impression given by the lawmakers who passed the CDA was striking. The difference, says Bruce Ennis, lead attorney for the plaintiffs, was that the judges "did their homework" in a way that Congress did not. "We made a mistake," admits Republican Congressman Rick White of Washington, who originally supported the CDA, then fought to have the indecency language removed. "The reason we got it wrong this time is that Congress does not understand the Internet."

Will there be a next time? That seems likely. Even if the Justice Department decides to forgo a Supreme Court appeal, the Christian Coalition, along with other "family values" groups that don't necessarily agree on other issues, has vowed to keep the heat on politicians. And there are few of those in Washington with the courage to cast a vote for free speech that could later be construed as a vote for pornography. The Administration, for its part, seems to be trying to have it both ways. Two weeks ago, Vice President Al Gore told graduating seniors at M.I.T. that "fear of chaos cannot justify unwarranted censorship of free speech." Yet after the court ruling last week, the President issued a statement reaffirming his conviction that "our Constitution allows us to help parents by enforcing this Act" and promising "to do everything I can in my Administration to give families every available tool to protect their children."