MUZZLING THE INTERNET

By JULIAN DIBBELL

PORNOGRAPHY IN CYBERSPACE? Sure, it's out there, although there is not as much of the hard-core stuff as most people seem to think. But what you can find if you look for it is enough to give thoughtful parents pause before letting their children roam freely on the Internet. It's also enough, evidently, to ensure congressional passage of a bill that would impose fines as high as $100,000 and prison sentences of up to two years on anyone who knowingly exposes minors to "indecency" online. It may even be enough to make the proposed legislation seem, at first glance, like a fair and reasonable approach.

But a closer look at the measure--all but approved last week by a conference committee in the rush to pass the giant telecommunications-reform bill before Christmas--suggests it may be a bigger problem than the one it aims to solve. For one thing, it does little about the kind of sexual material that has stirred up the strongest public anxieties (images of bestiality, pedophilia and the like). Such material is already flatly banned by federal statutes on obscenity and child pornography. The Justice Department has made it clear that it has all the laws it needs to police the Net for child molesters.

What is new in the bill is the idea of criminalizing the online transmission of words and images that may fall short of the Supreme Court tests of obscenity (lacking literary merit, violating community standards, etc.), but that someone, somewhere in cyberspace might find offensive.

The key word is indecency. Free speech, even indecent speech, is guaranteed by the First Amendment. The right of Americans to say and write what they please, in whatever way they please, has been affirmed by a long series of judicial decisions. The courts have also ruled, however, that in broadcast media like radio and TV, some forms of expression (George Carlin's famous seven dirty words, for example) may be unsuitable for part or all of the broadcast day.

The courts have not yet ruled on whether the Internet is a print medium like a newspaper, protected from government censorship, or a broadcast medium like TV, whose content is closely regulated by the Federal Communications Commission. Thoughtful members of Congress, led by Washington Republican Rick White, had sought to clarify the matter. A compromise proposed by White would have ruled out fcc oversight of the Internet; it also would have replaced the problematic word indecency with the phrase harmful to minors, a more narrowly defined standard that keeps magazines like Penthouse shrink-wrapped in convenience stores.

Early last week, it looked as if White's sensible alternative would prevail. But conservative groups, led by the Christian Coalition, lobbied hard for a tougher measure. And on Wednesday, in a 40-minute closed-door session, the conferees voted 17 to 16 to reinstate indecency.

That vote may yet come to naught. President Clinton has already threatened to veto the bill for other reasons. The American Civil Liberties Union has promised to mount vigorous challenges should the bill become law, and many experts believe the Supreme Court would find such a law unconstitutional. The Congressmen who took a public stand against online indecency may have known that it would not survive a court test. But they had a chance last week to show that they understood how to apply civil rights to new media, and they failed.

--With reporting by John F. Dickerson/Washington

With reporting by John F. Dickerson/Washington