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Federal Judge Blocks 'Indecency' Provision in Internet Legislation

By Mike Mills and John Schwartz
The Washington Post
WASHINGTON

A federal judge in Philadelphia temporarily blocked the government Thursday from enforcing part of new legislation that prohibits making indecent material available to minors via computer.

U.S. District Judge Ronald Buckwalter said that his order in the case, brought by the American Civil Liberties Union (ACLU) and other groups, applied only to enforcement of a provision of the law pertaining to "indecent materials," and not to another section of the law that proscribes distribution of "patently offensive" materials.

The decision left civil liberties lawyers scratching their heads, since the Federal Communications Commission has used the two terms interchangeably in the past. The bill defines "patently offensive" as "depictions of sexual or excretory activities or organs."

The apparent conflict within the order will have to be worked out at a later hearing on a request for a preliminary injunction, which has yet to be scheduled.

"We are very glad that the judge did consider the free speech rights of on-line users to be very important," said Ann Beeson, ACLU counsel. "While we have obtained a partial victory, the fight's not over."

The Justice Department had no comment on the decision.

The chief judge for the U.S. Court of Appeals for the Eastern District of Pennsylvania, Dolores K. Sloviter, named herself, Buckwalter and U.S. Judge Stuart Dalzell Thursday to a three-judge panel that will rule on the provision.

The telecommunications law, signed by President Clinton on Feb. 8, calls for the panel to rule on any court challenge to the provision. After the panel decides the matter, either side may appeal directly to the Supreme Court.

The "Communications Decency Act" imposes fines up to $250,000 and prison sentences up to two years on those who knowingly "make available" over interactive computer services indecent material to anyone under 18.

The Clinton administration defended the law in briefs filed late Wednesday, saying that the provision clearly applies only to communications to minors. But the plaintiffs argued that the law actually applies to anyone who places such material in a public place that minors might happen upon, and is so vague it could lead to the wrongful prosecution of unwitting users of the Internet.

The plaintiffs also said that Congress failed to consider the "least restrictive means" available in curbing indecency to minors, namely new software designed to help parents block out objectionable information on their computers. They contended the law will chill the free flow of speech on-line that contains literary or educational value or deals with such issues as sexuality, reproduction, human rights and civil liberties.