During the judicial hearings that culminated in the injunction, government witnesses conceded that digital pictures of unclad sculptures or nude paintings that are on public display in museums (such as Modigliani's "Nude Sdraiato" or Ingre's "The Turkish Bath") could fall under the letter of the law. The witnesses had argued that the Act was nonetheless constitutional because it was unlikely that a federal prosecutor would actually move to imprison someone who transmitted such images.
The three Federal District judges--Dolores Sloviter, Ronald Buckwalter and Stewart Dalzell--were apparently unconvinced by this and other arguments advanced by the Act's supporters. "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. . . . Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche," wrote Dalzell in his portion of the decision. He predicted that no significant regulation of Internet speech would withstand constitutional scrutiny.
Even should the Supreme Court strike down the Act, free speech on the global infobahn is far from assured. In the U.S., more than a dozen states have enacted rules barring the transmission of unwanted material, ranging from the "indecency" cited (but not defined) by Congress to "any depiction of breasts or buttocks not completely and opaquely covered." Each of these laws will have to be challenged individually, says Ann Beeson of the American Civil Liberties Union. Furthermore, until state prosecutors begin to enforce the laws, their validity cannot be tested.
Perhaps more important, however, is the growing recognition that the First Amendment is "only a local ordinance," in the words of John Perry Barlow, lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation. The People's Republic of China has announced plans for a "Great Firewall" through which only politically innocuous data may pass, and Germany has attempted to cut off access to Nazi images or texts from within the nation's borders. Government prosecutors instructed Deutsche Telecom, which handles German Internet traffic, to block access to the addresses of Web servers known to hold illicit material. And early in June, the South Korean government put out orders to block a Canadian Internet site that hosts a collection of North Korean political pamphlets.
Last month, ostensibly acting on a complaint from a subscriber, French police arrested the managers of two Internet access companies (WorldNet and FranceNet) because pornographic images of children were among the roughly 100,000 messages a day that passed through the companies' computers; the source of the images was not known. The managers estimated that they would have to employ about 300 censors if the government required them to sift through all the material they received and passed on to users.
As the Internet grows, the range of community standards that it must accommodate will likewise continue to widen. Issues of offensiveness, decency and palatable speech will pose an ever greater threat to the free movement of information through the network.
One promising alternative to Internet-wide censorship is to let users set their own standards. SurfWatch and several other companies have developed rating systems and software that can prevent Internet browsers from getting to objectionable materials. Scanning algorithms may also block innocent information, however; among those who have found themselves at least temporarily data non grata are a Nynex web site that used "XXX" in its file names, a breast-cancer support group on America Online, and the town of Scunthorpe, England.
A consortium of computer companies, publishers and other organizations has developed a new architecture for blocking software, called PICS (Platform for Internet Content Selection). It would enable people to choose whatever rating system they want. (The ratings might be based on evaluations supplied by the authors of individual web pages, by independent evaluators, or even selectively by parents or teachers.) Users can develop their own versions of the "Index Expurgatorius": Web access could be limited to information suitable for children, for instance, to pages containing information about molecular biology, or to all sites suitable for those of a libertarian mindset.
The beauty of PICS, according to the consortium's statement of purpose, is that "the Internet can regulate itself through local choices about what to receive." Nevertheless, a question lingers: will we make those choices ourselves, or will someone else make them for us?