The court had been asked to protect the freedom of expression guaranteed by the American constitution. The plaintiffs, led by the American Civil Liberties Union, argued that the Communications Decency Act signed into law last February, making it a criminal offence to transmit any "indecent"or "patently offensive" material on the Internet, was unconstitutional.
Certainly, sexually explicit material does exist on the Internet, although almost all of it is preceded by warnings. Moreover older laws covering obscenity and child pornography remain fully operative; the US Justice Department has successfully used them recently to prosecute on-line cases. But beyond this, communication on the Internet can be, as the judges noted, unfiltered, unpolished and unconventional, sexually controversial and vulgar - "in a word indecent". It is into this new area that the Communications Decency Act extended the law.
The plaintiffs' objection was that it would prohibit the transmission of some literary, artistic and educational material of value to minors as well as adults. For this reason, the new law's opponents included Aids organisations, the Planned Parenthood Association, booksellers' associations, writers' groups, and single-issue pressure groups such as Stop Prisoner Rape and Human Rights Watch.
What did the Court admire so much about the Internet? One feature is that nobody owns, controls or dominates this global web of computers and computer networks, linked together by the world's telephone system. It is like the roads in this country except that the Internet does not belong to anybody, it exists because the operators of computers and of computer networks in different countries have decided to use a common method or language for transferring data. They have been concerned only with how quickly a packet of data travels around the Internet and not with the content of these missives.
Secondly, the Internet is inexpensive and thus as open to minority interests as to mainstream concerns. For the price of a home computer and a modem linking it to the telephone system, you can connect to and thereby address the world. You could participate, for instance, in the 15,000 or so discussion groups or you could create your own Web site (a Web site comprises material assembled on your computer which any one of the 40 million people using the Internet can call up on to their own computer). Compare this with the effort, time and money required to get a book published, or a newspaper launched or a television service under way.
When challenged, the US Government said that providers of material on the Internet which might be unsuitable could take steps, rather as cinemas do, to prevent children reaching it. They might ask "visitors" to show that they had a credit card, which would rule out minors. Or they could tag doubtful material so that it could be filtered out by special software. The trouble with the first is that the credit card companies would not co-operate in verification unless a commercial transaction is involved. The drawback to the second is that it would be expensive for non-profit organisations to carry out even if the relevant technology existed.
Fortunately, without government prompting, ratings services and software applications are being designed to help parents limit their children's access to the Internet. A Platform for Internet Content Selection or PICS has been launched which provides a positive rating of Web sites. And there is software which will route users to only those sites and no others.
Taking all this into account, the three judges declared the Communications Decency Act unconstitutional. One of the judges said that the Internet may fairly be regarded as a "never ending worldwide conversation. The Government may not ... interrupt that conversation."
Such a result could not be obtained under Britain's present constitutional arrangements. We have no entrenched right to freedom of expression. A bill similar to the Communications Decency Act could quite easily pass through Parliament and become unchallenged law. While the tradition of free speech in the United Kingdom is deep rooted, in the United States it is sacred. That is why the US Supreme Court could declare 20 years ago that to lose freedom of expression, for even minimal periods of time, "unquestionably constitutes irreparable injury".
To arrive at the American level of safeguards, we would have to write Article 10 of the European Convention of Human Rights into British law. This states that "everyone has the right to freedom of expression ... without interference by public authority and regardless of frontiers". But it adds that "this article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises". Newspapers are not on this list of media where special safeguards can be employed. Nor, according to the American court, should the Internet.