ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, November 17, 1996 TAG: 9611180007
SECTION: CURRENT PAGE: NRV-26 EDITION: NEW RIVER VALLEY
DATELINE: CHARLOTTESVILLE (AP)
SOURCE: RONALD J. HANSEN DAILY PROGRESS
A person browsing the Internet can stumble into a discussion of 18th century English literature or find the ingredients for a homemade pipe bomb.
Such is the varied nature of the nascent computer technology.
But how much is protected by the First Amendment's promise of free speech and expression in sharing images and information?
It is a question without an answer, says Robert M. O'Neil, a University of Virginia law professor.
``The whole experience is brand new,'' O'Neil said recently from his office at the Thomas Jefferson Center for the Protection of Free Expression on Pantops Mountain east of Charlottesville.
O'Neil, who is teaching a class this semester about the First Amendment in cyberspace, said the U.S. Supreme Court hasn't had its first ``watershed case'' on free expression in cyberspace.
There are a handful of cases in federal appeals courts on their way to the high court, but O'Neil said the justices might pass on them for the near future.
That's because the high court would not want to be put in the embarrassing position of having a landmark decision quickly rendered moot because of a sudden change in technology.
``If they make a ruling in June and someone comes out in July with a super-duper blocking chip, they could look foolish,'' he said.
There is at least one case that could soon be decided that has the potential to be ground breaking, said Mike Godwin, staff counsel for the Electronic Frontiers Foundation, a public interest defender of civil liberties in computer matters in San Francisco.
The high court has agreed to hear a case titled Reno vs. ACLU, which could strike down a portion of the Communications Decency Act intended to keep indecent material from children.
The law, enacted in February, makes it criminal to engage in ``indecent'' or ``patently offensive'' speech on computer networks if the speech can be viewed by minors.
In June, the 3rd U.S. Circuit Court of Appeals in Philadelphia issued a temporary injunction barring the government from enforcing the law.
The American Civil Liberties Union and others filed suit against the government, claiming the law is unconstitutionally vague.
The Supreme Court has not yet agreed to hear the government's appeal.
Godwin is confident that the Supreme Court, if it accepts the case, will uphold the appeals court, probably by a wide margin.
``I think the Supreme Court is as tied down as it can be in a constitutional law case,'' Godwin said of the Reno case. That's because the three-judge panel that decided the case made such well-reasoned findings of fact and interpretation of the applicable law, he said.
``The judges went from zero to 60 in understanding the Net very quickly,'' Godwin said.
O'Neil agrees that the lower court's ruling is likely to be affirmed by the Supreme Court.
The existing case law, thin as it is, indicates the First Amendment is not being curtailed, he said.
``The early cases do contain some positive signs,'' O'Neil said. ``The courts have been surprisingly sensitive to the potential and need of electronic communication.''
The courts have always had thorny issues to untangle with new communications media.
Most recently, courts had to decide whether cable television service is more like over-the-air broadcasts or more like printed communications.
Broadcast stations are more tightly regulated because of the scarcity of channels. The broadcast spectrum for television is like radio - there is a finite amount of stations available.
Printed communication has been treated historically as though there are no limits on the number of information sources. As a result, there is less content regulation in print.
Courts initially held that cable most resembled broadcast TV, O'Neil said. But changes in technology have allowed the number of channels to mushroom with no ceiling in sight, he said.
LENGTH: Medium: 79 linesby CNB