As a result of a recent federal court decision, communications on the Internet could become the most protected speech of all.
By Jonathan Wallace
On June 11, 1996, a panel of three federal judges sitting in Philadelphia handed down a momentous decision in the ACLU v. Reno case, declaring the Communications Decency Act (CDA) unconstitutional. The CDA made it a criminal offense (punishable by up to two years in prison and a fine of up to $200,000) to "depict or describe . . . sexual or excretory functions" over the Internet. Although the government insisted it would not prosecute providers whose content had scientific, literary, artistic or political value and would focus exclusively on protecting children from pornography, there was nothing in the statute itself that would have precluded a future administration or prosecutor from arbitrarily enforcing the law.
Indeed, it doesn't refer to pornography; it bars the depiction or description of sexual or excretory acts or organs in a "patently offensive manner." Yet almost everything may be patently offensive to someone; for each of us, there is some speech we really hate. The argument that the government would never prosecute someone for intellectual, socially useful discussions of topics such as pornography, rape, AIDS, abortion or even the Holocaust boils down to a statement that prosecutors would have too much integrity or common sense to try such a thing.
However, we know that they don't. Some are fanatical and some are ambitious, and there will always be a prosecutor somewhere who will prosecute you for anything that he or she thinks the law will allow. Moreover, we know (despite what they say on TV or in briefs filed with the court) that the CDA proponents clearly intended to reach socially valuable material. One of the senators commented the day the CDA passed that portions of Catcher in the Rye by J. D. Salinger, posted on the Net, should be considered indecent. The conference committee considered, and rejected, an exemption proposed by Rep. Rick White for material with scientific, literary, artistic or political value.
The U.S. Justice Department, faced with the thankless task of trying to save a statute that was clearly overbroad, argued prosecutorial discretion to the court. Using what one of the judges characterized as a "circular argument," the Justice Department said that the CDA should be held constitutional because the U.S. attorneys would not seek to apply it in an unconstitutional fashion.
The panel didn't buy it. Chief Judge Sloviter wrote, "That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene. . . . Even if we were to place confidence in the reasonable judgment of the representatives of the Department of Justice who appeared before us, the Department is not a monolithic structure, and individual U.S. attorneys in the various districts of the country have or appear to exercise some independence. . . . But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well."
One of the most important issues discussed in this case was how to compare the Internet to other forms of mass communications to determine how much regulation of protected speech should be allowed. Different forms of mass communications allow for varying levels of regulation. Broadcast media, for example, have the greatest level of regulation because, as the argument goes, television enjoys a high degree of pervasiveness in homes and there is a scarcity of bandwidth. Print media, on the other hand, have the lowest level of regulation. The judges, despite their nontechnical backgrounds, attempted to understand the technology surrounding the Internet and analogize it to prior technologies. Although two of the three judges metaphorically compared the Internet to other forms of mass communications, they picked different ones. (The third judge, Buckwalter, based his determination exclusively on the overbreadth and vagueness of the CDA; he did not compare the Internet to another medium to reach his conclusions.)
In her opinion, Chief Judge Sloviter said, "Internet communication, while unique, is more akin to telephone communication . . . than to broadcasting . . . because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online." Judge Dalzell, however, began his opinion with the statement that "the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only render the Act unconstitutional but also would render unconstitutional any regulation of protected speech on this new medium." This statement implies that Dalzell may agree that cyberspace is analogous to print media; only print heretofore received the full, uncompromising First Amendment protection that Dalzell would extend to the Net.
However, on the next-to-last page of his opinion, Dalzell wrote, "The Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." Rather than relying on a safe, literal-minded analogy to an existing medium, Dalzell held that the Internet is a unique medium not subject to some of the failings of print. First, the Internet presents low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, widely diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium and creates a relative parity among speakers.
Dalzell therefore believes that a lamentable side effect of the CDA would be to reduce cyberspace to the level of print media. He said, "In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country . . . where economic power has become relatively coterminous with influence." Thus, in Dalzell's estimation, cyberspace is print with no barriers to entry and a completely democratic diversity of voices, where powerful corporations and wealthy individuals have no inherent advantage.
The choice of this controlling metaphor similarly mandates the correct test to use in determining whether the CDA is constitutional. Although the Constitution grants protection to speech, the government may be able to regulate speech if it can meet a two-pronged test. First, the burden lies on the government to show it has a "compelling state interest" in protecting the public by restricting the speech. It must then "narrowly tailor" its regulations and restrictions to specifically deal with that single problem and not be so overbroad or vague as to restrict other rights.
An example of a narrowly tailored regulation is a concept known as "channeling." In broadcast media, certain "adult-level" scenes, such as nudity, profanity and sexual contact, are shown only after 10 p.m. The compelling state interest here is to protect children who may be watching television from seeing these images. However, to completely prohibit such scenes would violate adults' rights to view these images. Therefore, by setting a time where it can be reasonably assumed that children would not be watching without parental supervision, the government was able to effectively satisfy its interest (protecting minors) without infringing on adults' rights.
The Internet, however, does not have time zones. One cannot restrict the time in which a child can access a Web site. Any attempt at regulating content on the Internet--rather than regulating access--could not be considered narrowly tailored. Various forms of access regulation exist (such as Net Nanny and SurfWatch), but they are a viable option only when installed at the user's location. Moreover, without a specific definition of what is considered prohibited speech, users of the Internet have to guess whether what they say online will subject them to criminal liability. Thus, any level of content regulation creates a "chilling" effect on intellectual discourse and threatens to silence even mainstream information.
Judge Sloviter gave several examples of socially useful speech threatened by the CDA, including news coverage of female genital mutilation in third-world countries and the acclaimed play Angels in America. She concluded, "In the face of such a patent intrusion on a substantial category of protected speech for adults, there is some irony in considering whether the statute is narrowly tailored." She further stated, "It is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring."
In the end, the three judges all agreed that the CDA was overbroad--that it criminalized speech which was fully protected by the First Amendment and was therefore unconstitutional.
ACLU v. Reno was not about pornography; it was about the evolving idea of freedom of speech. Specifically, the judges' task was to define the meaning of freedom of speech in the United States for the 21st century. First Amendment law is a patchwork of provisions with little in the way of a guiding philosophy, and it is driven to a large extent by the medium on which the speech is communicated. Only the print media (which existed when the Constitution was written) have ever received the full protection of the First Amendment, until this case.
Zechariah Chafee, writing in 1942, observed that long familiarity with newspapers, books and pamphlets as the only means of public discourse led to the need for their protection being "generally realized." On the other hand, he argued, when new communications media were introduced, "writers and judges had not got into the habit of being solicitous about guarding their freedom. And so we have tolerated censorship of the mails, . . . the stage, the motion picture and the radio."
In the coming century, the volume of electronic text is certain to dwarf the volume of text printed on paper--it may already. Judges Sloviter, Buckwalter and Dalzell decided that there is no difference, for First Amendment purposes, between electronic text and text printed on paper. Freedom of speech in the U.S. greets the dawn of the 21st Century.
Jonathan Wallace is vice president and general counsel of Pencom Systems in New York City. He can be reached at jw@pencom.com. Michael Green, a law student at the Hofstra School of Law, assisted in the preparation of this article.