NY Times, 9 Dec 1995, Op-Ed. Congress vs. the Internet The courts have upheld free speech. Why won't legislators? By Shari Steele (EFF staff counsel) San Francisco. While the courts continue to uphold the freedom of speech on the Internet, the First Amendment is under attack on Capitol Hill. On Wednesday, House members of a House-Senate conference committee said they would support a stringent new measure that would not only bar words and ideas on the worldwide computer network that one might hear on TV or read in this newspaper, but would make criminals out of anyone transmitting these materials electronically, including on-line servces. This measure goes against the spirit of three sensible court decisions on copyright law handed down in recent weeks, all involving the Church of Scientology. The first decision, issued by a Federal judge in California last month, held that Internet service providers, the gatekeepers to the information highway, cannot be held liable for copyright infringement when they have no knowledge of the content of their users' messages. This decision is important, because, like the telephone company, the system's providers merely offer a conduit for communications. If they can be held liable for the content of messages, they are more likely to monitor those messages and censor any that include language that might get them in trouble. Just as we don't want the phone company censoring our telephone calls, we should be very troubled by any copyright law interpretation that would assign liability to those who provide Internet service. The second and third decisions were issued last week by a Federal judge in northern Virginia. In those cases, the judge, Leonie M. Brinkema, admonished the Church of Scientology for using lawsuits to silence its on-line critics. After two of its former members posted electronic criticism of Church of Scientology writings, the church brought charges against them, their Internet service providers and The Washington Post for including two sentences from church documents in an article on the case. Judge Brinkema dismissed The Washington Post and two of its reporters from the suit and held the Church of Scientology and its affiliate responsible for the newspaper's legal fees. "Although the Religious Technology Center brought the complaint under traditional secular concepts of copyright and trade secret law, it has become clear that a much broader motivation prevailed -- the stifling of criticism and dissent of the religious practices of Scientology and the destruction of its opponents," the judge wrote. The judge called this motivation "reprehensible." While the results of these preliminary decisions are encouraging, they provide little solace to the larger threat of on-line censorship. Court decisions in the copyright realm, as these are, do not address the damage Congress is doing to the First Amendment h the name of protecting children from obscenity, which remains ill-defind. These early court victories are important, and the on-line world breathed a collective sigh of relief over the wise judgments. But not all battles can be won in court. If Congress presses forward with its attempt to criminalize constitutionally protected speech, I fear that the First Amendment will be left behind as more and more of what we say is in the form of on-line communications. -----