Indecency and the Internet.

If your association provides Internet services, be aware of the new and related legal risks. One set of risks is raised by a growing group of laws that regulate indecency and sexually oriented material transmitted across the Internet. John Morris explains this emerging legal issue.

- Jerald A. Jacobs, ASAE General Counsel

An update on the Communications Decency Act and how such legislation can affect your association's operations in cyberspace.

Until recently, associations did not have to be concerned about potential legal liability from obscenity, indecency, or child pornography because association publications generally don't contain sexually oriented content. Medical and scientific association publications that might address sex-related issues were safe from such liability because these publications have educational value and are distributed to professionals, not to minors.

However, with the Internet and the World Wide Web, there is significantly more potential for risk. An association with a presence in cyberspace can unwittingly become a distributor of controversial content. Content that an association makes available across the Internet can be accessed by a broad cross-section of society, including children.

Associations that have Web sites must monitor the movement toward regulation of Internet content and the practical situations in which problems might arise.

Legislation

During the past year, the United States Congress and state legislatures rushed to enact laws to regulate online material that is "indecent," "patently offensive," or "harmful to minors." The definitions of those categories are far from clear but are not confined to what is commonly called "pornography." The newly enacted statutes can cover certain mainstream literature and art, medical treatises on sex-related subjects, serious works of fiction that contain descriptions of sexual conduct or vulgar language, use of vulgar language in an e-mail or online discussion, and serious but explicit discussions of sexuality and relationships. All of the standards - indecency, patent offensiveness, and harm to minors - make it unlawful to distribute to children what is otherwise perfectly appropriate and lawful to distribute to adults.

The key legislation is the federal Communications Decency Act of 1996. The act criminalizes the "display" of "patently offensive" speech "in a manner available to a person under 18 years of age." The reality of the Internet is that virtually all content is "displayed" in a manner "available" to minors. Thus, the effect of the Communications Decency Act would be to prohibit on the Internet a range of material that is appropriate for adults but not for children.

A coalition of associations and technology companies challenged the act because of the unconstitutional restrictions on communication among adults. A court in Philadelphia blocked the law, and the case is now in the Supreme Court (with a decision due in June 1997). Because of the court injunction, the act currently is not enforced, but similar state statutes have been enacted.

Practical concerns

Who's in control? Any association sponsoring content on the Internet must decide whether the association will maintain total control over the content. If the Internet is simply another distribution channel for association publications and other information, and no one other than staff can post information on the association's Web site, then the association can control the distribution risks. For the vast majority of associations, the subject areas of which are far removed from sexuality, there is virtually no risk because none of the association s materials,could even arguably be viewed as indecent or harmful to minors.

The subject matter for some associations - from medical societies to artistic, literary, and publishing associations - could raise legal concerns. If materials could fairly be deemed inappropriate for minors in at least some parts of the country, the association must be extremely cautious in making that content freely available on the Internet.

While the constitutional issues are being debated in the Supreme Court, the most prudent course of action is to avoid content that could be deemed "offensive." Alternatively, an association could design a Web site and limit access to controversial content to members of the association. Such a screening process, however, could be costly for the association to operate.

Can site users interact? Entirely different problems arise when an association allows Web site users to interact via the site. Allowing users to post files or articles to the association's site or to participate in discussion groups sponsored by the association represents the Internet's most exciting aspects, but also poses some of the most challenging legal problems. If staff supervise or moderate what is posted to the site, the association may increase its liability for content posted by others. Nevertheless, staff involvement is almost essential to ensure that the material posted is of interest to the association's target audience (whether that be members or the public).

Hosting sites. A final area of potential liability arises when an association offers to host Web sites for its members, which typically means that members' content is made available through the association's computers. This type of situation is almost always governed by a contract between the association and the member. Such an agreement must set guidelines for compliance with laws, including indecency laws, and clearly delineate who has responsibility (and liability) for content posted.

The Internet enables associations to offer many new services. Legal concerns should not in any way discourage your association's movement into cyberspace, but be aware of the attendant legal risks.

John B. Morris, a partner at Jenner & Block, Washington, D.C., participates in representation of a coalition of associations and corporations challenging the Communications Decency Act in the Supreme Court. Jerald A. Jacobs, a partner at Jenner & Block, Washington, D.C., edits this column.