Editorial: Anti-smut ruling a false free speech victory

The part of the act challenged was a provision making it a crime to transmit a "communication which is obscene, lewd, lascivious, filthy or indecent with intent to annoy, abuse, threaten or harass another person." The provisions applies to all e-mails, including e-mails sent between two friends.

Besides its patent ridiculousness and apparent impracticability of enforcement, the provisions as written essentially eats into the spectrum of speech now protected as free. The Supreme Court currently regards all the aforementioned brands of speech, except obscenity, free under the First Amendment. The court has had a tumultuous time deciding what constitutes "obscene," a highly subjective standard. The high court has said that it would interpret the provision to only apply to obscene speech, not the other types of speech listed.

But exactly how this highly subjective, overly broad category is read has far-reaching implications for any e-mail user. All pornography and possibly all sex talk is prohibited under the provision, unless it is part of a commercial transaction. Swear words might also be prosecutable under this provision, illustrating just how frightening the potential reach of this bill is.

The provision may have a chilling effect on speech beyond Supreme Court interpretation. Anyone reading the statute who is not also familiar with the case, may assume that all the types of speech listed are prohibited. It is also dangerous to have this statute in writing because future courts may interpret it differently.

A better approach would be to strike the measure altogether, forcing Congress back to the drawing board to tailor a narrower version that respects the parameters of the first amendment. Congress has shown a disturbing tendency toward writing Internet smut-banning bills under the banner of protecting children but with the result of curtailing adult citizens' free speech rights to near the level of children. Several such pieces of legislation have been struck down by the Supreme Court, which serves as a check on such sadly misguided and flawed laws.

This time, this bit of law should have seen the same. It did not, more's the shame for all of us.