Protecting the Worldwide Conversation:
CDA Decision is a Sweet Victory

Part I

by Jonathan Wallace

The decision of the three judge panel in ACLU v. Reno, issued June 11, 1996, grants the most complete First Amendment protection to the Internet imaginable. The three judges, Dolores K. Sloviter, Ronald L. Buckwalter and Stewart Dalzell, did their jobs to the fullest: they stayed remote from political considerations, learned the technical details of an unfamiliar medium, searched successfully for the right judicial metaphor, and issued a decision which (if it stands up on appeal to the Supreme Court) will serve to protect our freedom of speech well into the next century.

Since courts considering a new communications medium typically make a botch of it on the first go-round, the ACLU v. Reno ruling is especially remarkable.

The Controlling Metaphor

More than seventy years ago, Judge Benjamin Cardozo, in his famous lectures on the judicial process, said that judges do not find law, but make it, by reference to history and analogy. "History," he said, "in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future." Clearly, any attempt to regulate the Internet must begin with a study of history and a determination as to the the prior communications medium which provides the best analogy for the Internet.

Senator James Exon and Congressman Henry Hyde answered this question when they shaped the Communications Decency Act to emulate broadcast laws. Relying on the advice and drafting skills of such members of the religious right as ex-prosecutor Bruce Taylor of the National Law Center for Children and Families, the politicians decided that the Internet is "pervasive", like television. Senator Dan Coats, another CDA supporter, called the Internet a porn shop in your child's bedroom. The two sections of the CDA, ultimately declared unconstitutional in ACLU v. Reno were drawn from broadcast laws: the "indecency" provision was adapted from the Communications Act of 1934, and the "patently offensive" provision was copied, with slight changes, from FCC regulations.

In our book, Sex, Laws and Cyberspace, Mark Mangan and I make the case that print media are the controlling metaphor for the Internet. "Cyberspace," we wrote, "is a constellation of printing presses and bookstores." We continue to believe that no regulation should be permitted for the Net greater than what is permissible for books and magazines.

What metaphor did the ACLU v. Reno judges pick? Unfortunately, each judge relied on a somewhat different pathway to their unanimous determination. Only two of the three relied on a metaphor, and they picked different ones. (The third judge, Buckwalter, based his determination exclusively on the overbreadth and vagueness of the CDA; he never needed to compare the Net to another medium to reach his conclusions.)

Chief Judge Sloviter said:

Judge Dalzell begins 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, when Dalzell, on the next to last page of his opinion, finally utters his idea of the controlling metaphor, here is what he says:

Rather than relying (as we did in our book) on a safe, literal minded analogy to an existing medium, Dalzell goes beyond. He holds that the Internet is a unique medium not subject to some of the failings of print: Dalzell points out that print media, by comparison, accomplish none of these goals. Rather than glorifying print, as we did, Dalzell believes that a lamentable side effect of the CDA would be to reduce cyberspace to the level of print media: And again: Thus, cyberspace, in Dalzell's estimation, is better than print; it is print with no barriers to entry, and a completely democratic diversity of voices, where powerful corporations and wealthy individuals have no inherent advantage.

Are New Laws Possible?

Picking a controlling metaphor mandates the answer to certain other questions. One of these is whether a more narrowly drawn law would have survived. If so, Congress can be expected to fill the gap soon with more legislation.

Sloviter does not say. Her conclusion that the law is overbroad implies that if it had been more narrowly drawn, it might have lived. Buckwalter is not shy; he states:

Dalzell, however, concludes the opposite: "Congress," he says simply, "may not regulate indecency on the Internet at all." (p.191)

A little later, in a quote that is a deliberate hybrid of the Supreme Court's famous Butler v. Michigan decision and Marshall McLuhan, he states: "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. (p. 209)

Picking the Appropriate Test

Choice of the controlling metaphor similarly mandates the correct test to use in determining if the CDA is constitutional. Once the judges decided that cyberspace was worthy of stricter protection than broadcast, by implication they had bound themselves to use the "compelling interest" test.

Under this approach, the government can regulate speech only when it has a "compelling interest" in doing so and uses means "narrowly tailored" to serve that end.

"Compelling Interest"

Very few people on the freedom of speech side would dare argue that the government does not have a compelling interest in protecting children from pornography. Most of the plaintiffs' time and energy was spent arguing that the CDA was not narrowly tailored. The ACLU, true to its reputation of free speech absolutism, produced a minister and sex education specialist who testified at trial that explicit sexual material is not harmful for children. In a memorable moment, the witness testified that his five year old son had watched films of oral sex, without harm. The judges never mention this testimony in their opinion and apparently did not assign much credence to it.

However, Judge Sloviter nevertheless rang some interesting changes on the issue of compelling interest. Because of the extreme breadth of the material explicitly covered by the CDA (an issue more typically raised on the "narrowly tailored" prong of the inquiry) the government's compelling interest argument also failed. For example, she said:

However, she concluded that "there is certainly a compelling government interest to shield a substantial number of minors from some of the online material that motivated Congress to enact the CDA..."

Buckwalter, whose entire opinion is dedicated to the "narrowly tailored" issue, probably thinks the government has a compelling interest in regulating online indecency, but never says so. He does, however, quote approvingly a comment of Justice Kennedy that if material is entitled to full First Amendment protection, one should stop there and not even apply the test. Kennedy's comment highlights an interesting distortion in existing law. Books are understood to receive full First Amendment protection; would not the application of the two part test to them countenance a lot more book-banning than is tolerated today? As strict as the test is, one can imagine laws pertaining to books which satisfied both prongs of the test--yet it is hard to imagine the Supreme Court upholding such laws. Therefore, there is a lingering question whether the ACLU v. Reno judges succeeded in according cyberspace the same level of protection as print media--since they saw fit to apply the "compelling interest" test.

Dalzell at times avoids the vocabulary of "compelling interest"-- it may be hard for any judge to say plainly that the government does not have a compelling interest in regulating indecency. But he confronts this issue when he says:

In other words, we can't assume a compelling interest, then debate whether the CDA is narrowly tailored-- pretty much what the other two judges do. Dalzell then makes the situation murkier when he declares that "I accept without reservation that the Government has a compelling interest in protecting children from pornography." (p. 210) Is he throwing a bone to the pro-CDA forces and if so, is there any meat on it? The clear import of Dalzell's holding is that the government cannot regulate indecency on the Internet-- and pornography, which he says the government has a compelling interest in regulating, is a term which he himself acknowledges "does not have a fixed legal meaning" (p. 152). He finally defines it to mean sexually explicit, "adult" material sold for profit. Since such material, if not actually obscene, is likely to be indecent, Dalzell leaves us in doubt as to what he means. Is it possible that, in his opinion, whether the material is sold or given away for free determines the result? One senses he is floundering on the shoals of "compelling interest." Finally, when he remarks that "the disruptive effect of the CDA on Internet communication...would render unconstitutional any regulation of protected speech on this new medium," he seems to say that whether or not there is a compelling interest, no regulation could ever be narrowly enough tailored.

"Narrowly Tailored"

Luckily, the judges are much clearer on the second prong of the test: they are unanimous that the CDA is not narrowly tailored. A law fails this section of the test typically if it is "vague", "overbroad" or both. While all three judges agree that the CDA is overbroad, they disagree on whether it is vague.

Judge Sloviter gives several examples of socially useful speech threatened by the CDA: the genital mutilation news coverage mentioned above and the play Angels in America are two of her examples. She concludes:

And again: All of which goes to overbreadth. Sloviter merely hints that one of the two sections of the CDA-- 223(a), which refers only to indecency, without setting forth the patent offensiveness standard of 223(d)-- may be vague. Typically, she says, when Congress chooses to include language in one place and not in another, it intends a distinction. "Plaintiffs," she says, "note the difference but do not press this as a basis for distinguishing between the two sections," so neither will she, for now.

Buckwalter, on the other hand, had originally granted a temporary restraining order against 223(a) on the grounds of vagueness but had declined to find 223(d) vague. He now concludes he was wrong and that both are vague: "I continue to believe that the word 'indecent' is unconstitutionally vague, and I find that the terms 'in context' and 'patently offensive' are also so vague as to violate the First and Fifth Amendments." (p. 122)

The Fifth Amendment, which we are all familiar with to the extent that it provides a right against self-incrimination, provides a more generic requirement of due process of law. Buckwalter comments that "[d]istilled to its essence, due process is, of course, nothing more and nothing less than fair play." A criminal law "must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer." (p. 127). Simple fairness, he says, is "absent in the CDA, because it does not define "indecent". Moreover, he agrees with Judge Sloviter's comment that Congress must be construed to have meant the language used in 223(a) and 223(d) to have different meanings.

Dalzell disagrees. To him there is no vagueness, only overbreadth. He believes that what Congress intended was painfully clear. Unlike the other two judges, he believes that 223(a) and (d) mean the same thing, and that the longer definition given in (d), of depictions or descriptions of sexual or excretory acts or organs in a patently offensive manner, saves (a) from vagueness as well.

[Part II of this essay examines the opinion's insights on Pacifica v. FCC, the seven dirty words case; inquires whether material with scientific, literary, artistic or political value was really at risk from the CDA; and attempts to resolve the question of whether the CDA was intended to apply local community standards.]

Jonathan Wallace

The Ethical Spectacle
ACLU v. Reno plaintiff
Co-author, Sex, Laws and Cyberspace (Henry Holt, 1996)

Free speech absolutist--and proud to be