EXTINGUISHING THE CDA FIRE

The Supreme Court's Masterful Reno v. ACLU Opinion

Jonathan D. Wallace, Esq.
jw@bway.net

Jonathan Wallace is a New York-based executive and attorney who, as publisher of The Ethical Spectacle, was a plaintiff in Reno v. ACLU. He is the co-author, with Mark Mangan, of Sex, Laws and Cyberspace (Henry Holt, 1996), a book about Internet censorship.

"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."

With these words, the Supreme Court closed its simple, clear and masterful opinion affirming the District Court's decision in ACLU v. Reno. The Communications Decency Act (CDA) is unconstitutional.

The Supreme Court's decision will stand as one of the most important First Amendment decisions of the 20th century. The Court, whose freedom of speech jurisprudence has so often recently been fragmented and confusing, has issued a clear, logical and correct statement which will be the cornerstone of free speech decision-making into the next century.

In its ruling, the Court hits a number of extremely important bases.

The CDA is Unconstitutional

The Justices agreed that the CDA violates the First Amendment due to its vagueness and overbreadth. Calling the CDA "a content-based blanket restriction on speech", they also noted its ambiguity ("each of the two parts of the CDA uses a different linguistic form") . They were very concerned that serious speakers on issues like "birth control practices, homosexuality," and "the consequences of prison rape" would be chilled by the CDA. The severity of its criminal penalties "may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas and images."

The government argued that the CDA was not vague, since its indecency language overlaps part of the three-part Miller standard utilized in obscenity prosecutions. Both the CDA and the Miller standard hold that the material in question must be "patently offensive" under contemporary community standards. (Generally, obscenity is the most hard-core stuff; Reno v. ACLU leaves obscenity laws in place and deals only with the issue of non-obscene "indecent" speech.) The Court acerbly noted that a term which is not vague in context may be vague when standing alone. In a memorably droll footnote (fn. 38), it explained itself: "Even though the word 'trunk', standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals."

The Justices concluded that the CDA "unquestionably silences some speakers whose messages would be entitled to constitutional protection."

Caging the Pacifica Monster

Twenty years ago, the Supreme Court let a ravening monster out of its cage in its Pacifica v. FCC decision, popularly known as the "Seven Dirty Words" case. In Reno v. ACLU , the Court has put Pacifica back in its cage.

Until Pacifica, the Court had always justified censorship of radio and television based on a doctrine known as "spectrum scarcity". In other words, the government's role in assigning frequencies in the scarce broadcast spectrum led to a role in reviewing content as well. In Pacifica, the Court unnecessarily resorted to a new, and extraordinarily muddy, new rationale, "pervasiveness". The fact that broadcast comes into the household, and that children turning a dial may stumble on indecent programming, justifies censorship of indecent speech, the Court said. Ithiel de Sola Pool, a prescient communications scholar, wrote in 1983 that the pervasiveness doctrine would someday be used to justify "quite radical censorship". This prediction almost came true in 1996. The pervasiveness doctrine was used by the religious right and their Congressional fellow-travelers as a major justification for passage of the CDA. The Supreme Court gave further grounds for anxiety by using pervasiveness as a rationale for censorship of non-scarce cable television in its Denver Area Educational Telecommunications Consortium v. FCC decision.

The Court has now emphatically declared that the Net is not pervasive. (One attorney at the ACLU press conference on the day the decision was issued commented that Reno v. ACLU is Justice Stevens' penance for having written Pacifica.) The Court adopted the careful and thorough findings of the District Court, which it summarized as follows: "Though [indecent] material is widely available, users rarely encounter such content accidentally....." The existence of warning screens and document descriptions dictates that "'the odds are slim' that a user would enter a sexually explicit site by accident." Unlike radio and television, use of the Net requires "a series of affirmative steps more deliberate and directed than merely turning a dial."

The Court specifically held Pacifica inapplicable to the Internet. That case, it noted, involved a civil order directed to the timing of an indecent program (after ten o'clock at night would have been acceptable, mid-afternoon was not.) The CDA, by contrast, was a criminal statute which would effectively chill much constitutionally protected speech. Moreover, there was a long history of broadcast regulation prior to Pacifica (here, the Court seems to be saying, somewhat tautologically, that you can regulate something if you have always regulated it.) "The Internet, however, has no comparable history."

Using the word "invasive" in lieu of Pacifica's "pervasive", the Court concluded: "[T]he Internet is not as 'invasive' as radio or television." And, just in case anyone was in doubt, it added that the Net is not scarce, either: "[T]he Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communications of all kinds."

The Power of Analogy

Until recently, courts analyzed new technologies by reference to older, similar ones. For example, in the last century the courts decided that the correct legal regime for the telephone could be determined by regarding it as a kind of telegraph. A strong analogy gives clear legal guidance and avoids messes; it saves everyone's time. For example, the telegraph analogy would deter a legislator from introducing a bill to apply rules to the telephone inconsistent with treatment of the telegraph.

For the last quarter century, the Supreme Court has departed from the road of analogy where new media are concerned. Instead, it has taken the view that for freedom of speech purposes, every new medium is unique and presents particular problems. At the same time, it has issued a series of extremely muddy and fragmented decisions, from Pacifica through last year's Denver, in which the plurality said that selecting an analogy wasn't necessary and, in fact, would be of no help. This was reminiscent of the famous scene in Treasure of the Sierra Madre in which the bandits posing as federales exclaim, "We don't need no filthy badges". The Court defiantly announced that it don't need no filthy analogies to get its work done. This willful blindness to the usefulness of technological precedent has enabled the Court to trip all over itself , announcing that cable is not to be treated like broadcast television (Turner v. FCC I) and then saying that it is in fact to be treated like television (Turner II and Denver ). I worked with attorney Jamie Stecher to file an amicus brief in Reno v. ACLU on behalf of Jon Lebkowsky and SiteSpecific Incorporated urging the Court to cure its analogical deficiency and declare that the Net should be treated like print media.

The dissenters, disturbingly, seem to adopt a geospatial analogy for the Net (one promoted, of course, by the term "cyberspace" itself) and discuss Net regulation as a "zoning" problem. I discuss the dissent further below.

Unlike the District Court, which analogized the Net variously to print and the telephone, the Supreme Court decision doesn't rely on analogy to reach a result. However, the Court makes a couple of highly significant off-hand references: "The Web is thus comparable, from the readers' viewpoint, to....a vast library including millions of readily available and indexed publications...." And again: "Through the use of Web pages, mail exploders and newsgroups, [any Net user] can become a pamphleteer."

The latter statement leads immediately to the Court's conclusion that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." The "cases" referred to are Pacifica and some other pro-censorship precedents which the Court distinguishes as inapplicable to the Net. In the complex dance of Constitutional litigation, the Court applies standards of various strictness to determining the constitutionality of laws. Its highest standard of review is so-called "strict scrutiny", which says that to survive, a law must be based on a compelling government interest and use the least restrictive means of reaching the goal. Laws evaluated under a "strict scrutiny" standard rarely survive, so the battle is mostly won when you get the Court to agree to apply the "strict scrutiny" standard. By applying its highest standard to the Net, after referring to the Net as a library and Net users as pamphleteers, the Court is tacitly acknowledging that the Net should be treated like print media, which has always had the highest level of First Amendment protection.

Elsewhere in the opinion, the Court takes a slight step back from this conclusion. It has long batted away almost every kind of restriction on the content of non-obscene print communications; as the District Court observed, Congress would not have been able to pass a "Newspaper Decency Act" with a straight face. Judge Dalzell of the District Court was emboldened to observe that the print-like nature of the Net led to the conclusion that "Congress may not regulate indecency on the Internet at all." The Supreme Court observes in its footnote 30: "Because appellees do not press this argument before the Court, we do not consider it." And the Court goes on in the footnote also to re-affirm that the government has a "compelling interest" in protecting minors from indecent, patently offensive speech. Thus, the Court leaves open the possibility that it may still tolerate a higher level of censorship for the Net than it has for print. Looked at this way, Reno v. ACLU may say nothing more than that the scattershot CDA fails where a more sniper-like approach may prevail.

Sarcasm

The Court is too polite to chastise Congress in plain language for holding no hearings while hastily passing an unconstitutional bill. Nonetheless, the opinion is full of hints of the Court's exasperation at Congress for wasting the taxpayers' money and everyone's time. In footnote 24, the Court quotes some un-named Representatives who thought that the CDA "would involve the Federal Government spending vast sums of money trying to define elusive terms that are going to lead to a flood of legal challenges..." And it goes on to quote Senator Leahy, who led the fight against the CDA: "The Senate went in willy-nilly, passed legislation and never once had a hearing, never once had a discussion other than an hour or so on the floor."

Ratings Systems and Censorware

As the euphoria induced by the Reno v. ACLU decision wears off, most free speech advocates are aware that more legislation and more court battles will follow. As noted above, the Court left the door open for Congress to pass a more narrowly drawn statute--and the same day of the decision, Senator Patty Murray (D-Wa.) announced legislation that would make a Net-rating system mandatory. President Clinton simultaneously called for "a V-chip for the Internet".

Although no universally accepted rating system exists for Net content, the issue of ratings, and the related one of filtering software (I will mischievously use the pejorative term "censorware"), were constantly in the background at the ACLU v. Reno trial. Both sides made as much use as possible of the existence of ratings platforms such as PICS, ratings systems such as RSACi, and censorware such as Surfwatch. Our side argued that these alternatives made government intervention unnecessary, as parents could protect their children through selective application of these technologies. The government argued that the existence of these choices essentially rendered the CDA harmless, as speakers could defend themselves from criminal liability by giving an adult rating to their sites. The District Court didn't buy it, and in her opinion Chief Judge Sloviter made an oft-quoted statement that technology which doesn't yet exist cannot be used to save the constitutionality of a statute.

The Supreme Court agreed. The CDA included a defense that the speaker has taken "good faith, reasonable, effective, and appropriate" measures to prevent indecent speech from reaching minors. Our side had contended that it would be virtually impossible to prove that one had met the four parts of this test, while the government rejoined that almost any user of a self-rating system would be protected by this provision. The justices noted: "It is the requirement that the good faith action must be 'effective' that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist."

However, in its opening description of the Internet, the Court duly noted the existence of censorware, as the District Court had before it: "Systems have been developed to help parents control the material that may be available on a home computer with Internet access." Although the Court did not base any legal conclusions on this finding, some advocates have argued that this mention supports the theory that further government action is unnecessary due to the existence of these products.

Some advocates of Net freedoms continue to promote the existence of voluntary ratings systems and censorware as important protections against further government intervention in our on-line rights. The danger is that legislation such as that proposed by Senator Murray will mandate ratings and the use of censorware. Once this happens, use of such systems and products is no longer voluntary, but becomes part of a system of government censorship. In all fairness, these advocates mainly agree that they would draw the line at government imposition of ratings or censorware. Their opponents argue that if you trumpet loud enough and often enough that something is good for you, sooner or later the government will attempt to make it mandatory.

This issue was not before the Court, and nothing in the opinion can really be read as a comment on the constitutionality of such a scheme. I believe that Murray's bill or Clinton's promise of a V-chip for the Internet would fail due to prior case-law (most of it dealing with MPAA movie ratings) that prohibits the government adoption of private ratings systems. (For relevant case-law, see my paper on use of censorware in public libraries.).

Community standards

The Miller standard defines obscenity in terms of "contemporary community standards." This has led to results like the prosecution of Amateur Action sysops Robert and Carleen Thomas in Tennessee for posting materials on their California-based BBS which violated Memphis community standards.

The CDA took a page from this book by defining indecent material similarly in terms of "community standards." Though the CDA's proponents claimed that it would create a consistent national standard for Internet indecency, the CDA was ambiguous. There was no way to determine from its language whether local standards were intended, as in the obscenity law, or whether the statute really intended a national standard , as in certain FCC regulations which refer to "contemporary community standards" for the broadcast industry. There was even disagreement among free speech advocates as to which kind of standard the CDA intended.

The danger of applying local community standards to the Internet is, of course, that the most restrictive community gets to set the tone for the entire Net. (There is also the question of whether and how the standards of a single U.S. community could be applied to the global Internet.)

Though the Justices didn't need to face this question directly, they drop some interesting hints. In their footnote 38, they state that the CDA clearly intended to apply Miller's local community standards approach, not set a national standard. (I agree with this finding; if Congress had wanted to, it could have more closely mirrored the FCC language by writing something like "contemporary standards for the Internet community"). Later, they observe that the community standards language "means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message."

This suggests pretty strongly that Congress should stay away from community standards in any further Net legislation it considers. It also indicates that the Court may be ready to review the applicability of the Miller standard to prosecutions for Internet obscenity.

The Heckler's Veto

The overarching rationale of the CDA's supporters was that it was a necessary measure to protect our children. I personally had the questionable pleasure of debating Patrick Trueman of the American Family Association on national television, and he accused me of trying to promote the seduction of our children by pedophiles, simply because of my anti-CDA stand.

Forty years ago, in the Butler v. Michigan case, the Court overturned a state law which banned the sale of books unfit for children, using the often-quoted phrase that such legislation burns down the house to roast the pig. In other words, while the protection of children is an extremely important goal, we will not do so by interfering with the legitimate rights of adults to speak, or listen to, matters not fit for children.

The Court again confirmed that the government has a "compelling interest" in protecting children from indecency (a matter not seriously disputed, though the ACLU did make an attempt in the District Court to counter this on principle). Citing the Butler language, the Court said that the CDA, "casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."

The CDA's ambiguous provisions included a section punishing anyone who attempted to send indecent material knowingly to a minor, or to a group knowing that a minor was included. While the CDA's advocates, like Patrick Trueman, painted graphic images of individual pedophiles sending indecent mail to susceptible targets, our side pointed out that every chat room, every Usenet group and every Web page may potentially be joined or viewed by minors, making the "knowledge" requirement meaningless. While the two dissenters, Justices O'Connor and Rehnquist, would have upheld the "specific child" provision of the CDA for one-on-one communications like those imagined by Trueman, the majority refused to rewrite the law to make it less vague. In so doing, they hit on the striking image of the "heckler's veto": "[A]ny opponent of indecent speech....might simply log on and inform the would-be discoursers that his 17-year-old child....would be present."

The Dissent's Zoning Approach

Justice O'Connor, joined by Chief Justice Rehnquist, concurred with the Court's overall holding on the CDA, but would have preserved the "specific child" provision as it applied to one-on-one situations. Their arguments in favor of preserving this one application of the CDA relied on a "zoning" analogy. Justice O'Connor wrote that she regarded the CDA "as little more than an attempt by Congress to create 'adult zones' on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound."

She then cites a long list of state statutes prohibiting minors from entering pornographic theaters and bookstores, liquor stores, bars and poolhalls. " [A] zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material." She agrees that applied to the Internet "as it exists in 1997", the CDA violates the first part of this test, restricting adult access to material. As for the second branch of the test, she holds that "the universe of speech constitutionally protected as to minors but banned by the CDA....is a very small one."

She describes cyberspace as an area not yet "zoned" but eminently "zoneable": "[I]t is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws." But she agrees that the law cannot be upheld based on technology not yet available. "Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an 'adult zone'." Thus, the two partial dissenters hold hope out for a day in which laws like the one proposed by Senator Murray can create "adult zones" or, as free speech advocates would put it, "ghettoes" for disfavored speech.

Conclusion

The Reno v. ACLU opinion is a clear, strong statement which will serve as a bulwark for Net free speech determinations for many years to come. However, by stopping just short of a categorical statement that cyberspace should be treated like print media, it exposes the Net to at least one more battle, over mandatory ratings systems and censorware.