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By David Hudson Though cyber libertarians had cause to celebrate the demise of the Communications Decency Act in June 1997, the threat to free speech on the Internet returned in November when Sen. Dan Coats, one of the sponsors of the original law, introduced a new bill dubbed the "Son of CDA." Senate Bill 1482 would regulate speech over the World Wide Web by outlawing commercial distribution of "harmful" material to youth under 17. If a Web site operator or Internet service provider failed to take reasonable steps of age verification to prevent access by minors to harmful material, he or she could face up to six months in jail or a $50,000 fine. Pornography foes laud the bill as a necessity after the Supreme Court struck down the Internet indecency provisions of the CDA. Karen Jo Gounaud of Family Friendly Libraries told freedomforum.org: "They call Senator Coats’ bill the Son of CDA. He believes, and I believe, that he has answered all of the courts’ concerns." Coats told Congress and the president that he had "studied the opinion of the court and come before my colleagues today to introduce legislation that reflects the parameters laid out by the court’s opinion. … In response to the Supreme Court’s ruling on the CDA, I have introduced legislation targeted at controlling children’s access to commercial pornography on the World Wide Web." Coats argues that his new bill differs from its predecessor in two distinct ways:
Shyla Welch, media relations specialist for the anti-pornography group Enough is Enough, says that the difference between the Coats bill and the indecency provisions of the CDA is "the difference between a buckshot approach and a rifle-shot approach." She told fthat the new bill "merely holds commercial pornographers responsible for the mega-money they make off Internet pornography." However, cyber liberties expert Ann Beeson disagrees. "The harmful-to-minors standard does not make the measure constitutional. Senator Coats was unaware that a federal court in New York struck down that state’s Internet indecency law that had a harmful-to-minors standard. "No matter what standard is used — a harmful-to-minors or an indecency standard — a major problem still exists in distinguishing between adults and minors on the Internet," Beeson told freedomforum.org. Solveig Singleton of the Cato Institute agrees: "The harmful-to-minors standard has always been applied using a local community standard. It will be virtually impossible to come up with a national or international standard." Coats’ newest Net sanitation effort attempts to alleviate concerns over application of the harmful-to-minors standard by requiring the Department of Justice and the Federal Communications Commission to make available on their Web sites "such information as is necessary to inform the public of the meaning of the term ‘material that is harmful to minors’" under the law. However, Singleton dismisses this attempt to make the bill more constitutionally defensible. "The FCC has been wrestling with defining indecency for years since the Pacifica decision [a 1978 U.S. Supreme Court ruling on broadcast indecency]. Even though the commission has been essentially begged to come up with rules regarding indecency, the FCC has refused, insisting any determination of indecency must be examined on a case-by-case basis. It won’t be any easier for them to define ‘harmful to minors,’" she says. Other members of the cyber liberties community have made known their opposition to the Coats bill directly to Congress. Following Coats’ introduction of the "Son of CDA," the American Civil Liberties Union and the Electronic Frontier Foundation wrote to members of Congress laying out several constitutional objections to the bill. They argue that the bill’s term "commercial distributor," for instance, could be interpreted to apply not only to traditional commercial pornographers but also to virtual bookstores such as amazon.com. Chris Finan, president of the American Booksellers Foundation for Free Expression, also believes the reach of the law will extend beyond commercial pornographers. He told freedomforum.org: "We are very concerned with the Coats bill and are not reassured by [the senator’s] soothing words. "It is not at all clear that this proposed law would not affect everybody that puts up material that conceivably could be declared harmful to minors. We are as opposed to this bill as to the original CDA. We don’t see a constitutional difference between the harmful-to-minors standard and the prior indecency standard," Finan says. However, Donna Rice-Hughes, communications director for the anti-pornography group Enough is Enough, told freedomforum.org that the Coats bill is needed "because we have got to protect our children and make the Internet safe. Pornographers don’t have a tendency to act with a common sense of decency. I mean, right now there are free pictures — called teasers — depicting acts of sexual torture and bestiality on the Internet. This has got to stop. We need the Coats bill because the existing obscenity laws are not being enforced." Rice-Hughes says she "expects the bill to pass." She may very well be correct, given the ease with which the original CDA passed and the recent actions of the Senate Commerce Committee, which passed the Coats bill with only one dissenting vote on March 12. Matt Smith, who works in Coats’ press office, told freedomforum.org that the bill should be on the Senate floor within two weeks.
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