[4] Communications Decency Act Decision (Excerpts) [Editor's Note: In February, 1996, the U.S. Congress amended the Communications Act of 1934 governing U.S. telecommunications. The revision included a provision known as the Communications Decency Act (CDA). The CDA mandated criminal penalties for certain kinds of speech on the Internet. The law was rushed through Congress and voted on before many of those voting had even read the language. Censorship provisions included in the CDA were regarded, even by some of the Congresspersons voting for it, as being contrary to the U.S. Constitution. The law also outlined a strict procedure for anyone who wanted to challenge the its constitutionality. Several Lawsuits requesting an injunction against the enforcement of the CDA were initiated. One such lawsuit (ACLU vs. Reno) was filed in the Federal District Court in Philadelphia. The lawsuit was executed in an expedited fashion in accord with the procedures mandated in the CDA and on June 13, 1996, the Court announced its decision. The decision granted a permanent injunction against the enforcement of the CDA, and went on to note the importance of the Internet as a new means of mass communication. Following are some of the comments mostly made by one of the three Judges in the case, Judge Dalzell. The Federal court decision is available at: http://www.vtw.org/speech/ ] >From the Findings of Fact: "The Internet is...a unique and wholly new medium of worldwide communication." "Internet technology necessarily gives a speaker a potential worldwide audience." >From Judge Dalzell's Opinion: The Internet is a new medium of mass communication. As such, the Supreme Court's First amendment jurisprudence compels us to consider the special qualities of this new medium in determining whether the CDA is a constitutional exercise of governmental power. Relying on these special qualities, which we have described at length in our Findings of fact above, I conclude that the CDA is unconstitutional.... Since much of the communication on the Internet is participatory, i.e. is a form of dialogue, a decrease in the number of speakers, speech fora, and permissible topics will diminish the worldwide dialogue that is the strength and signal achievement of the medium. 4. Diversity and Access on the Internet Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas": [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market . Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-50 (1974). These voices dominate and to an extent, create the national debate. Id. Individual citizens' participation is, for the most part, passive., Id. at 251. Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. Id. Economic realities limit the number of speakers even further. Newspapers competing with each other and with (free) broadcast tend toward extinction, as fixed costs drive competitors either to consolidate or leave the marketplace. Id. at 249-50. As a result, people receive information from relatively few sources: The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspapers being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Id. at 249. The Supreme Court has also recognized that the advent of cable television has not offered significant relief from this problem. Although the number of cable channels is exponentially greater than broadcast, Turner, 114 S. Ct. at 2452, cable imposes relatively high entry costs, Id. at 2451 52 (noting that the creation of a cable system requires "[t]he construction of [a] physical infrastructure"). Nevertheless, the Supreme Court has resisted governmental efforts to alleviate these market dysfunctions. In Tornillo, the Supreme Court held that market failure simply could not justify the regulation of print, 418 U.S. at 258, regardless of the validity of the criticisms of that medium, Id. at 251. Tornillo invalidated a state "right-of-reply" statute, which required a newspaper critical of a political candidate to give that candidate equal time to reply to the charges. Id. at 244. The Court held that the statute would be invalid even if it imposed no cost on a newspaper, because of the statute's intrusion into editorial discretion: A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials whether fair or unfair constitute the exercise of editorial control and judgment. Id. at 258. Similarly, in Turner, the Supreme Court rejected the Government's argument that market dysfunction justified deferential review of speech regulations forcable television. Even recognizing that the cable market "suffers certain structural impediments", Turner, 114 S. Ct. at 2457, the Court could not accept the Government's conclusion that this dysfunction justified broadcast-type standards of review, since "the mere assertion of dysfunction or failure in a speech market, without more, is not sufficient to shield a speech regulation from the First Amendment standards applicable to non-broadcast media." Id. at 2458. "[L]aws that single out the press, or certain elements thereof, for special treatment 'pose a particular danger of abuse by the State,' and so are always subject to at least some degree of heightened First Amendment scrutiny." Id. (citation omitted). The Court then eloquently reiterated that government-imposed, content-based speech regulations are generally inconsistent with "[o]ur political system and cultural life": At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Id. (citation omitted). Both Tornillo and Turner recognize, in essence, that the cure for market dysfunction (government-imposed, content-based speech restrictions) will almost always be worse than the disease. Here, however, I am hard- pressed even to identify the disease. It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most partici patory marketplace of mass speech that this country and indeed the world has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their govern ment nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulle tin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lov ers, or fly fishermen. Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles. My examination of the special characteristics of Internet communication, and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. If "the First Amendment erects a virtually insurmountable barrier between government and the print media", Tornillo, 418 U.S. at 259 (White, J., concurring), even though the print medium fails to achieve the hoped-for diversity in the marketplace of ideas, then that "insurmountable barrier" must also exist for a medium that succeeds in achieving that diversity. If our Constitution "prefer[s] 'the power of reason as applied through public discussion'", Id. (citation omitted), "[r]egardless of how beneficent-sounding the purposes of controlling the press might be", Id., even though "occasionally debate on vital matters will not be compre hensive and all viewpoints may not be expressed", Id. at 260, a medium that does capture comprehensive debate and does allow for the expression of all view points should receive at least the same protection from intrusion. Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us," Leathers v. Medlock, 499 U.S. 439, 448 49 (1991) (citing Cohen v. California, 403 U.S. 15, 24 (1971)), then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. Cf. Butler, 352 U.S. at 383. The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Be cause it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates. Moreover, the CDA will almost certainly fail to accomplish the Government's interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam have little incentive to comply with the CDA. My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. See United States v. Thomas, 74 F.3d 701, 704 05 (6th Cir. 1995). As we learned at the hearing, there is also a compelling need for public education about the benefits and dangers of this new medium, and the Government can fill that role as well. Conclusion Cutting through the acronyms and argot that littered the hearing testimony, 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. True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos." Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. For these reasons, I without hesitation hold that the CDA is unconstitutional on its face. [Editor's note: The US Department of Justice has appealed the federal court decision to the Supreme Court. The Supreme Court's decision is expected by Summer 1997.] ---------------------------------------------------------------------- Reprinted from the Amateur Computerist Vol 7 no 2 Winter 1997 available free via email from jrh@umcc.umich.edu and http://www.umcc.umich.edu/~jrh/acn -----------------------------------------------------------------------