Copyright (c) 1997 - Ingrid A. Rimland
AN ANALYSIS OF THE SUPREME COURT CDA DECISION
PREPARED BY THE CENTER FOR DEMOCRACY AND TECHNOLOGY
Please distribute this alert intact until July 30, 1997
Citizens Internet Empowerment Coalition
http://www.ciec.org
HIGH COURT ESTABLISHES BROAD PROTECTIONS FOR FREE EXPRESSION ON THE INTERNET
The landmark Supreme Court ruling which struck down the Communications Decency Act last week did much more than slay a poorly conceived and badly drafted law.
By defining the legal and regulatory structure for this unique medium based on a vision of an open, decentralized Internet free of gatekeepers and government censors, the decision guarantees that the Internet will continue (to) develop into a robust medium for free expression, education, and commerce.
The Court also soundly rejected as "singularly unpersuasive" arguments from CDA supporters and the Department of Justice that the CDA was narrowly tailored and that censorship is necessarry in order to ensure that parents feel comfortable letting their children online.
Specifically, the court affirmed the arguments of Internet users, civil liberties advocates, and the Internet industry that:
* The Internet is a unique medium which deserves the highest degree of First Amendment protection
* Content Based Regulations are Unconstitutional
* User Empowerment Technologies are Far More Effective and Far Less Restrictive than Content Regulations
The defeat of the CDA is also a victory for parents and families, who now have the freedom to surf the Net based on their own family values, not those of government censors.
The full text of the Supreme Court's ruling, along with a complete archive of the challenge to the Communications Decency Act, is available online at http://www.ciec.org/
WHAT DID THE SUPREME COURT SAY?
The Citizens Internet Empowerment Coalition challenged the constitionality of the Communications Decency Act on the grounds that the law, which sought to regulate the Internet like broadcast mass media, failed to recognize the unique nature of cyberspace.
The Supreme Court accepted this argument completetely.
Ruling unanimously to overturn key parts of the Communications Decency Act the Court has established the regulatory framework for the Internet consistent with the vision articulated by CIEC. While two justices (O'Connor and Rehnquist) dissented on minor points, the thrust of the ruling has established that:
* THE INTERNET IS A UNIQUE NEW MEDIUM:
In searching for an analogy for what the Internet is, the Court refused to accept the arguments of CDA supporters that the Internet should be regulated like broadcast television, radio, and the telephone network. Instead, the Justices rightly determined that the Internet is a unique new medium in and of itself on which every user is a publisher, and that the Internet should enjoy First Amendment protection at least as broad as print.
Specifically, the Court noted that the Internet differs from broadcast mass media because:
1. Users of the Internet are not 'assaulted' by material - rather,
they must affirmatively request information. The Court specially noted that "the risk of encountering indecent material by accident is remote because a series of affirmative steps are required to access specific material." (page 21)
2. The Internet is not a 'scarce' public resource. The Court stated,
"[U]nlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds.." (page 24)
As a result, the Justices said, "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, the 'content on the Internet is as diverse as human thought.' [cit. omitted]. We agree with this conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." (page 24)
The vision of the Internet as an open, decentralized network free of gatekeepers and government censors has profound implications. The decision, heavily rooted in undisputed facts about how the Internet works, guarantees that the Internet will enjoy the broadest First Amendment protections and will be free to develop into a powerful commercial and political medium.
* CONTENT BASED REGULATIONS ON THE INTERNET ARE UNCONSTITUTIONAL
The Supreme Court ruled that content based regulations cannot be constitutionally applied to the Internet.
The Justices stated, "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." (page 40)
The court went on to conclude that content based regulations on the Internet will restrict the adult population to viewing only material which is appropriate to children - a clear violation of established constitutional precedent.
This, combined with the Court's finding that equally effective and less restrictive alternatives to censorship are widely available, closes the door on possible efforts to re-draft the CDA to regulate a narrower class of content.
* USER EMPOWERMENT TECHNOLOGIES ARE MORE EFFECTIVE, LESS RESTRICTIVE ALTERNATIVE TO GOVERNMENT CONTENT REGULATIONS
The decision establishes that on the Internet, speakers cannot be held responsible for who hears them. Because of the unique nature of the medium, and because users have tremendous control over the content they receive online, user based filtering is far more effective and far less restrictive than government content controls.
Agreeing with the lower court ruling, the Supreme Court stated that "[d]espite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be available." (page 7)
Congress would be wise to take heed of this point. Instead of spending another 2 years while we wait for the courts to reassert that any content-based regulation of the Internet is unconstitutional and ineffective because of the global nature of the medium, Congress should find ways to encourage the development and use of user empowerment technologies consistent with the framework established in this case.
While such tools are 100% available to parents today, there is still much which can be done to improve their utility and effectiveness. These technologies, which take advantage of the empowering nature of the Internet, are far more effective and far less restrictive than any content-based regulation.
Finally, it is important to note that the Court agreed that current laws prohibit using the Internet to traffic in obscenity and child pornography (which were not challenged by the plaintiffs).
Taken as a whole, the Supreme Court's opinion represents a landmark victory for the first amendment in the Information Age, and clearly establishes the boundaries for any future government efforts to regulate Internet content.
WHAT'S NEXT
Supporters of the Communications Decency Act have vowed to continue their fight to impose some form of content regulation on the Net. While (we) believe that the Supreme Court decision has closed the door on the ultimate constitutionality of these efforts, it is clear that the fight is not yet over.
In the coming weeks and months, we expect Congress to propose a variety of "solutions" to public concern about minors access to objectionable material on the Internet. We hope that Congress will tread carefully, take the time to evaluate any proposals based on the precedent established by this case, and work to find ways to address parents concerns without enacting yet another unconstitutional approach.
If you want to help ensure that Congress does it right, please take a moment to Adopt Your Legislator. It's a simple way to ensure that your voice will be heard as Congress moves forward, as well as to keep tabs on what your representatives in Congress are doing on Internet related issues. Best of all, it's free!
Please take a moment to visit http://www.ciec.org/adopt/
FINALLY...
We would like to thank all of you who have supported the Citizens Internet Empowerment Coalition by joining the case and participating in the various online campaigns throughout the past 18 months.
You have truly been a part of an historic effort, and, in the process, have helped to illustrate the fundamental issues of this case.
* All told, nearly 60,000 individual Internet users joined the Citizens
Internet Empowerment Coalition challenge -- illustrating the board impact the CDA would have on the Internet community.
* Last week, CIEC made history by placing the full text online within 10 minutes of the ruling via a wireless modem and a laptop computer from the steps of the Court. At the same time, simultaneously on over 12,000 world wide web sites throughout the net, Internet users joined together to announce the victory in real time.
This unique example of the power of the Internet would not have been possible without your help and support.
Have a wonderful Fourth of July / Independence Day!
Ingrid
Thought for the Day:
"When did we Americans vote for a revolution to overturn our ethnic and racial balances? When did we vote to rid America of her 'dominant European culture'? Answer: Never."
(Pat Buchanan, Washington Times, 6-30-97)