The challenge to the Communications Decency Act has now been heard by the Supreme Court. A decision is expected in late June.
The justices heard much about smut and pornography on the Internet as well as the relationship of the First Amendment and its free speech provisions to this emerging form of communication. Seasoned court watchers suggested that both sides of the argument were well represented and that the justices had obviously had a "crash" course in information technology. One of the real risks is that the First Amendment will carry the day in this particular venue and the higher education community will walk away from the issue feeling that they have done their duty.
I am reminded of game one of the 1954 World Series. Giant manager Leo Durocher had summoned left-handed pitcher Don Liddle from the bullpen with one out in the eighth inning, score tied, a pair of runners on base, and slugging first-baseman Vic Wertz at bat. Wertz blasted a drive some 440 feet to the deepest part of the Polo Grounds, only to have Willie Mays turn his back on the plate at the crack of the bat and make a spectacular over-the-shoulder catch on a dead run - one of the most famous plays in baseball history. Replaced immediately by another pitcher, Liddle walked to the dugout, laid down his glove, and announced, "Well, I got my man." A successful challenge to the Computer Decency Act runs the risk of leaving us with much the same feeling.
The First Amendment ramifications of this case are certainly important but, for many in higher education, seem rather esoteric and distant from their daily contact with the Internet. The Computer Decency Act makes it a crime to transmit "indecent" material to minors. That seems pretty far removed from the day-to-day activities of institutions of higher education.
Unfortunately, such is not the case as some institutions have already discovered as they deal with Web pages authored by students which might well be deemed "indecent" and could possibly, even likely, be viewed by minors. The ramifications for faculty research in areas ranging from health care (sexually transmitted diseases for instance) to research by historians into the sexual mores of both ancient and modern civilizations should be of significant concern to our institutions of higher learning.
But even dismissing these nontrivial concerns, we should still be very keenly interested in the outcome of this case. Simply put, this is but the opening salvo in what will likely be a lengthy battle as society tries to come to grips with the issue of access vs. security in the information age. The outcome of this case should give us an idea of how our system of jurisprudence is likely to extrapolate case as well as constitutional law to this new medium of communication.
The access vs. security issue extends well beyond this particular First Amendment instance. It is also a question of secondary or tertiary liability when someone, say, for instance a student, uses the university's servers to send or receive a piece of intellectual property that has not been legally acquired. Or, perhaps, a member of the university community uses the Net to send a message that is considered threatening or harassing.
Colleges and universities are confronted with a particularly difficult conundrum. The very essence of the institution argues for free, open and unfettered access to the world's stock of information. The purposes of the institution are such that it would be difficult not to find some rationale for the scholarly use of almost any piece of information. At the same time, there is no denying the institution's responsibility to promote the lawful use of information. It is in this last case that our critics, and we ourselves, might find that we have been less than diligent in dispatching our responsibilities.
Abraham Lincoln once observed, "With public sentiment nothing can fail. Without it, nothing can succeed. Consequently, he who moldspublic sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes or decisions possible or impossible to be executed."
Assuming Mr. Lincoln had this mostly correct, we can expect an un- and under-informed populace as represented by, say, the Congress, to make some poor choices in legislation; or as represented by the judicial system to make poor choices in extrapolating the law to the Net. Our institutions of higher education should presume that they have an obligation on these issues to help inform and shape public sentiment. That obligation will not be vacated by a successful challenge in the case currently before the Supreme Court.
Robert C. Heterick, Jr., is president of Educom. [email protected]