Cyberspeech on Trial

If you wanted to gun down an abortion doctor, the Nuremberg Files was your website. It featured names, home addresses and photos of doctors who perform abortions--even the names and ages of their kids. Along with mangled fetuses and dripping blood, it boasted a handy checklist of "baby butchers" who were healthy (in black), as well as those who had been wounded (in gray) or killed (crossed out). It didn't quite make the case for pulling the trigger, but it pointed the way to sites that did. In 1995 Planned Parenthood and several targeted doctors sued the site's backers, charging that it illegally incited violence. Last week a Portland, Ore., jury agreed, handing the plaintiffs a $107 million verdict that the pro-choice movement hailed as a new weapon in the fight against those who oppose abortion with violence.

A day earlier, in the week's other landmark Internet ruling, a Philadelphia court blocked enforcement of the Child Online Protection Act, Congress's latest attempt to ban cybersmut. The law was intended, its backers say, to protect children from "teaser ads"--sexually explicit free samples that many porn sites offer before making users pay by credit card. But the court agreed with critics who said the measure would curb not only teasers but a wide range of less racy Internet speech directed at adults.

The two court rulings are part of an emerging legal consensus: that speech on the Internet should get the same protection, and carry the same responsibilities, as in print. That means it will be hard but not impossible to restrict online smut. While rejecting Congress's new law, the Philadelphia judge pointed to some restrictions that might be permissible. The Portland jury verdict is a timely reminder that on the Internet, as in other media, imminent threats aren't protected by the First Amendment.

Congress's first attempt at banning indecent cyberspeech, the sweeping Communications Decency Act of 1996, was struck down by the Supreme Court. The Child Online Protection Act is a narrower law, focused on commercial websites that don't restrict access to minors. It spares sites from prosecution if they require visitors to provide credit-card numbers or proof, via age-verification programs, that they're adults.

There's not much dispute that children who surf the Web these days can gain access to smut. When a child types the words dollhouse or toys into a typical search engine, the court noted, some of the links retrieved are porn sites. Trouble is, the new law is so broad it would let prosecutors go after socially useful, nonpornographic websites aimed at adults. A site operator who testified that he fears prosecution runs the Sexual Health Network, which provides information about sexuality to the disabled. And the credit-card and age-verification defenses go only so far. Both are costly to implement--beyond the budget of many websites--and strip away visitors' anonymity. The founder of PlanetOut, a site directed at gays, lesbians, bisexuals and transgendered people, said traffic would plunge if users had to identify themselves.