It’s Almost Indecent How Some Bills Are Written : Court quickly axes ill-conceived Internet regulation measure

History provided a clear warning to Congress in the matter of its hasty and ill-conceived bid to regulate decency on the Internet and online computer services. Unfortunately, the lesson was ignored.

In 1920s America, radio was the tantalizing and somehow frightening new tool of mass communication. The federal government grew alarmed when it realized it had no adequate means of regulation. And rather than take a thoughtful approach, it allowed a future president, Herbert Hoover, to rule by administrative fiat.

Almost three-quarters of a century later, the country was in a somewhat similar position, this time involving computer networks. Congress acted, and President Clinton this month signed the measure that it passed, a sweeping federal communications reform bill that contains the Communications Decency Act.

Years ago, radio regulation predictably was challenged in the courts, in part on the grounds of free trade and free speech. The government, again predictably, lost. The courts felt forced to provide their own judgment. In a sense, the matter of regulation of the radio airwaves had become more confused than ever. It would not be settled for five years.

Last week, federal Judge Ronald L. Buckwalter issued a restraining order and determined that the new law on computer decency is unconstitutionally vague in its use of the term “indecent.” He also upheld a part of the same law that makes it a felony to display, in a way accessible to minors, so-called “patently offensive” material “as measured by contemporary standards, sexual or excretory activities or organs.” The decision once again shows the subjective difficulty of making distinctions among such terms as “indecency,” “patently offensive” and “obscenity.” Said Chris Hansen, senior counsel for the American Civil Liberties Union, “things are a bit more confused now than they were before.”

The Communications Decency Act would make it a felony to create and transmit “obscene, lewd, lascivious, filthy or indecent” materials via commercial computer networks. Its intent, ostensibly, was to protect children from various forms of objectionable materials. But it is interesting that the judge said his order did not alter current laws against providing obscene material over the Internet in that it is already illegal to provide such material to minors, regardless of the medium used.

Of course, congressional lawmakers expected and perhaps invited the court challenge and even an eventual Supreme Court ruling. We have another thought: Perhaps the public is growing weary of legislation that is either intentionally or unavoidably designed to be kicked around in the courts for some unknown period of time. Whatever happened to the admittedly less public and less juicy work of tailoring legislation that might avoid protracted legal wrangling?

Lawmakers who oppose the Communications Decency Act and want it repealed make another point. The law is so vague that it might not allow legitimate discussions on health and disease concerns or discussions on distinguished literature that might contain “racy” material. Indeed, Buckwalter let stand a provision of the law that would impose criminal sanctions on anyone who transmitted, via computer, information about the kinds of drugs and equipment needed to perform abortions. To us, that clearly sounds unconstitutional.

Still to be resolved, as well, is the matter of how the decency statute would be enforced, and against whom. That’s a fairly important issue since it has not been determined that the laws already on the books are insufficient to the task.

We were at a place much like this in 1991 when the U.S. Court of Appeals struck down a misguided attempt by the Federal Communications Commission that also was designed to protect children, through a 24-hour ban on “indecent” broadcasts. The court called it an impermissible intrusion on constitutionally protected expression, not to mention an infringement on the rights of adults to listen or view broadcasts.

Given the complexity of the issue, especially as it relates to the regulation of the vast frontier of cyberspace, the decency act raises more complicated legal issues than it solves. Who can call that a job well done?