Free Speech Advocates File "Metaphor" Brief With Supreme Court


Jon Lebkowsky, an Austin-based Internet activist and author, and SiteSpecific Inc., a New York City new media company, have filed a friend of the court brief with the United States Supreme Court, supporting the findings of the District Court in Reno v. ACLU, the Communications Decency Act (CDA) case. "We believe the lower court was completely correct in finding that the CDA was unconstitutional," Lebkowsky said.

In their brief, filed by attorney Jamie Stecher of New York City, the parties argue that the Supreme Court should recognize that emerging electronic media, such as the Internet, require and deserve the same kind of First Amendment protection from government censorship that is traditionally accorded to newspapers, magazines and books. The brief argues that the Court has erred in recent years by failing to recognize that, for constitutional purposes, the Internet is a metaphorical printing press.

"When confronted with new technology, courts proceeded most wisely when they apply a settled body of case law that was developed for an analogous technology," Stecher commented. "For example, in the last century, when courts in the United States and England were confronted with lawsuits concerning a new medium called the telephone, they ruled that the telephone was like an existing medium -- the telegraph -- and by using this analogy adapted decisions made in cases involving the telegraph to the new medium. Not only did the analogy provide a firm basis for deciding the first telephone cases, but it provided an important sense of predictability to the new medium. Last June, however, a four-Justice plurality of the Supreme Court went seriously astray when it decided an important case pertaining to free speech on cable television, Denver Area Educational Communications Coalition v. FCC, without specifying whether cable should be treated for constitutional purposes like broadcast media, or print media, or something else. It is hard to see how a court can correctly determine *how* to regulate something without first deciding *what* it is."

Jonathan Wallace, co-author with Mark Mangan of Sex, Laws and Cyberspace (Henry Holt, 1996) and a plaintiff in Reno v. ACLU, welcomed the filing of the brief.

"In the book, we say that 'Cyberspace is a constellation of printing presses and bookstores," Wallace noted. "This brief helps to address a gap in the government's logic. Would you really treat Catcher in the Rye differently between paper covers and in electronic format? That's what one Congressman suggested, the day the CDA passed. Finding that the Internet is a form of print media will forestall that possibility. If a particular law would, like the CDA, be unconstitutional if applied to books and magazines, it shouldn't be constitutional for the Net either."

The Supreme Court will hear arguments in Reno v. ACLU on March 19th.

The amicus brief is available at