Decency vs. Free Speech

There is no substitute for supervision

By David A. Splitt

David A. Splitt, an authority on school law, is general counsel for the University of the District of Columbia and the District of Columbia School of Law.

Public school systems across the country have been scrambling to provide access to the Internet for their students and teachers. But like first-timers on Germany's Autobahn, many educators quickly discover there are no speed limits on the web--and no escape from the fast lane. Worldwide access to everything is just that: access to everything, including material that is definitely unsuitable for students. Faced on the one hand with cybersmart kids who seem to have been born with the ability to manipulate computers, and on the other with a medium of information exchange that can bring those kids face-to-screen with stuff that would make George Carlin blush, school administrators have been looking for ways to limit access to inappropriate material and minimize on-line mischief.

Believing that the simplest solution was to remove offensive material from the web, some educators and community leaders lobbied for federal legislation to tame the seamier side of the Internet. Congress obliged with a law guaranteed to make the most of the political potholes dotting the information superhighway: the Communications Decency Act of 1996. This statute declared that any person who "by means of a telecommunications device knowingly makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," could be fined and jailed for up to two years.

The law also made it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18 "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication." Anyone who knowingly permitted any telecommunications facility under his or her control to be used for any of these prohibited activities could also face felony charges.

With this law, the decency flacks pronounced, the web would become a safe place for the minds of our youth. The lawmakers had indeed been thorough, but they had let politics cloud their awareness of one important factor: the First Amendment to the U.S. Constitution.

A worldwide conversation

The American Civil Liberties Union--joined by several dozen other groups, including free-speech activists, publishers, journalists, software vendors, and on-line communications services--filed a lawsuit that stopped the new law in its tracks. In early June, a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction voiding the offending provisions of the law as "unconstitutional on their face to the extent they reach indecency." The court added that enforcement of the law was enjoined because "no party has any interest in the enforcement of an unconstitutional law."

The court's voluminous opinion filled almost a hundred pages, but its conclusion can be stated succinctly: Draconian measures to rid the Internet of offensive material are unconstitutional, and they won't work. "The Internet may fairly be regarded as a never-ending worldwide conversation," wrote Judge Stewart Dalzell in the opinion's most quoted passage. "The government may not, through the Communications Decency Act, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

Both the nature of the Internet as an information resource and a superconnective party line, as well as the impossibility of defining the limits of indecency within the context of the web, make it impossible to create a law that sets rational limits without restricting legitimate content. Consider the disputes that arise when school boards try to differentiate between pornography and literature in a school library. Folks just don't agree on what is acceptable. In the high school library, one easy solution is to put Catcher in the Rye and Ulysses in a reserved section. But that doesn't work on the web, because all the "shelves" are interlinked, and there is no "head librarian." Supervision of the Internet is scattered among many thousands of computer sites. The web is just "out there"--and what it is that's out there changes by the minute. A technical discussion would fill more than every page in this magazine, but suffice it to say that the court was convinced beyond any doubt that the content of the Internet is, for all practical purposes, uncontrollable.

What's a district to do?

This leaves school districts with a dilemma. Should you just pull the plug on your Internet connection?

Or are there other ways to avoid the black holes of cyberspace? School board members and school administrators are concerned about the potential liabilities--both political and legal--attached to web access. The political pitfalls are obvious, and more than a few school people have spent sleepless nights worrying about students innocently or intentionally web-surfing into pornographic chat rooms and bulletin boards.

The legal implications are almost totally undefined. As in the early days of any new technology, lawyers and the courts haven't caught up with the possibilities. But courtroom-weary school lawyers know that for every potential plaintiff, there is an attorney waiting to file a lawsuit claiming big-money damages because of careless management of students' access to the Internet. Like the leaves of autumn, the lawsuits are sure to descend. The real question isn't how to restrict access to the web--it's how to preclude non-frivolous, potentially expensive litigation over use of the web.

Some of the burden of limiting access to unwanted on-line material on the Internet is being assumed by the providers of Internet services, many of which have begun to build systems intended to enable parents and educators to control the material that comes into their homes and schools.

In the past year, too, several companies have begun marketing software intended to enable adults to limit Internet access for minors. Examples of such software include Cyber Patrol, CYBERsitter, The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server, and WebTrack. Many of these programs block access to perfectly innocent material as well as the inappropriate information they're designed to block, but competition among these and other providers will undoubtedly lead to increasingly usable and useful software for controlling Internet access.

Of course, these "sanitizing" programs are neither perfected nor absolutely perfectible, but they can provide a first line of defense--especially for use with younger children. For older students, such as high schoolers, these tools might well be too restrictive, but many school systems will still prefer to err on the side of caution.

Acceptable use

Some school districts are taking another approach and adopting so-called acceptable-use policies that establish extensive ground rules for use of the school computer system, covering both local network etiquette and Internet access. Most of the policies I've reviewed to date seem to have been written by lawyers or committees of lawyer-wannabes. Almost without exception, they read like field-trip permission slips on steroids--pumped up policies that, like the Communications Decency Act itself, try to cover all contingencies and inevitably fail.

Perhaps the most insidious problem with these policies is the false sense of security they promote. Most acceptable-use policies include forms that must be filled out by students and approved by parents for minor students. But most of the forms do a rather poor job of giving parents real notice of the types of material to which their kids might be exposed. One form states: "I recognize that it is impossible for the X School District to restrict access to all controversial materials, and I will not hold it responsible for materials acquired on the network." This statement combines a dash of understatement with a dollop of wishful thinking. Policies laden with vague references to "unsuitable" or "controversial" Internet material do a poor job of notifying parents of the wealth of images and information--both positive and negative--that can be found on the web. Just as important, catch-all disclaimers and broadly worded release-of-liability clauses are notoriously ineffective when tested in the courts.

Most of the policies I've seen need a lot of work to reduce the amount of jargon and legalese they contain and to turn them into useful tools of preventive law. Often, a better approach is to provide parents with as much real notice as possible of how the Internet is being used in instruction (perhaps through hands-on demonstrations); make clear to them the potential for misuse; and then have parents sign a simple form acknowledging that they have received and understand the notice.

Even the most finely crafted policy, though, is no substitute for ongoing and attentive supervision, especially with younger students. Letting kids surf any web wave they want is like holding varsity wrestling practice without floor mats, and it could lead to similar liabilities. You cannot simply treat the Internet as an extension of your school library without exercising some discretion as to what's available on-line, just as you would over what's available on the shelf. If your school district adopts no other policy on computer use by students, you should at least mandate that access to the Internet be as closely monitored as the use of the school swimming pool, chemistry lab, or machine shop. Being "interactive" with students, and not relying solely on software or other third-party screening mechanisms, is the best possible protection.