The nation's most widely read newsweekly got snookered -- or, more precisely, snookered itself -- in a frenzy to beat the competition with a racy cover story about pornography on the Internet.
-- Jeff Cohen and Norman Solomon, Media Beat, July 19, 1995.
Politics, pornography, media manipulation, sloppy journalism, sloppy scholarship -- definitely the net soap opera of 1995. It all started with the publication of
Mr. President, Georgetown University Law School has released a remarkable study conducted by researchers at Carnegie Mellon University. ... The university surveyed 900,000 computer images. Of these 900,000 images, 83.5 percent of all computerized photographs available on the Internet are pornographic. Mr. President, I want to repeat that: 83.5 percent of the 900,000 images reviewed--these are all on the Internet--are pornographic, according to the Carnegie Mellon study.
--Senator Charles Grassley (Rep. Iowa), June 26, 1995
In addition to igniting passions on the Internet, the cyberporn scare sparked the wrath of Congress, where senators, primed with copies of the study and samples of indecent GIFs, stepped in to protect the country from a tide of Internet-ready smut.
Here is the final version of the CDA as enacted by Congress on February 1, 1996 and signed into law as the Communications Decency Act of 1996. One key provision is
Whoever ... (1) in interstate or foreign communications knowingly ... uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards ... or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) ... shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.John Perry Barlow, in disgust, posted this Cyberspace Independence Declaration on February 8.
The plaintiffs, providers of and users of computer communication systems, assert that the Act is unconstitutional on its face and as applied because it criminalizes expression that is protected by the First Amendment; it is also impermissibly overbroad and vague; and it is not the least restrictive means of accomplishing any compelling governmental purpose.
The suit was joined with a similar one filed by a group headed by the American Library Association, and the case was heard by a panel consisting of Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter in Philadelphia during March. On June 12, 1996, the panel ruled unanimously that the CDA is an unconstitutional violation of the First and Fifth Amendments. As Judge Dalzell wrote:
My examination of the special characteristics of Internet communication, and review of the Supreme Court's mediumspecific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. ...
Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. ...
The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because 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.
The judges also agreed with the claim put forth in the complaint that the CDA violated the "least restrictive means" test enunciated by the Supreme Court in its 1989 Sable v. California decision, i.e., that the CDA mandated an approach that was more restrictive than necessary for accomplishing the stated goal of protecting minors. In particular, they noted that government ignored the alternative approach of having people use filtering software to screen the material they choose to see. In the words of Chief Judge Sloviter:
When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools, and libraries to screen such material from their end. It did not do so, and thus did not follow the example available in the print media where non-obscene but indecent and patently offensive books and magazines abound. . . . Instead, in the CDA Congress chose to place on the speakers the obligation of screening the material that would possibly offend some communities.
The Court heard the oral arguments on March 19th. The case was argued by Deputy Solicitor General Seth Waxman for the Government and Bruce Ennis for the ACLU and other Appellees.
MR. WAXMAN: ... there is a deadly serious point here, and that is that when the alternative is that every child in this country who has access to a computer and can click a mouse has access in his or her own bedroom or home or library to Hustler Magazine and Penthouse Magazine, and the kind of indecent speech that people sitting in the anonymity of their own bedrooms anywhere in the world or anywhere in the country wants to make available to them, we think that this is a small price to pay, and Congress could legitimately say that this is a narrowly tailored alternative.
QUESTION: I take it then that you would also defend the constitutionality of a statute which, tracking the words we have here, prohibited indecent conversations on a public street with minors present ... or between minors.
MR. WAXMAN: Well, I think that a municipality certainly could. I think it is a harder case, but I think a municipality could make it a crime for an -- for two adults to engage in patently offensive, sexually explicit communications in the presence of a minor child.
QUESTION: Why is that a harder case? It seems to me easier. It's easier to verify. ...
MR. WAXMAN: It's a harder case because a public park is a -- it's a free space. It's an area where, unlike the Internet, speech is free, which --
QUESTION: You're asking us to say that the Internet is not a public forum.
On June 26, 1997, the Court rendered its decision, affirming the Philadelphia opinion that the CDA is unconstitutional:
The Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.
We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. 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.
--Justice Stevens, writing for the majority
All nine Justices agreed that the "display provision" (i.e., criminalizing the display of patently offensive material in a manner available to minors) was unconstitutional. Justice O'Conner (joined by Justice Renquist) filed a partially dissenting opinion, arguing that the "transmission provision" (criminalizing the transmission of indecent material to a person the sender knows is under 18 years old) might be constitutional.
In the landmark case Reno v. ACLU, the Supreme Court overturned the Communications Decency Act, declaring that the Internet deserves the same high level of free speech protection afforded to books and other printed matter. But today, all that we have achieved may now be lost, if not in the bright flames of censorship then in the dense smoke of the many ratings and blocking schemes promoted by some of the very people who fought for freedom.Hardly had they stopped cheering the Reno v. ACLU decision, when civil liberties groups realized that internet labeling and blocking software -- the very technology they had affirmed as proving that the CDA failed the "least restrictive means" constitutionality test -- contained the roots of a censorship regime potentially worse than the CDA.
-- ACLU, "Is Cyberspace Burning?", August 1997
With the ability to filter content at any level of granularity and based on any kind of label, it would be an easy step for a government to mandate self-labeling. And it would be easy for anyone running a server or gateway to block material considered to be objectionable for any reason at all. Moreover, the automatic nature of the blocking software would mean that the people whose access was restricted might never even realize that this material existed. This realization has sparked a split in the coalition that helped defeat the CDA, and demonstrates that the issues of Internet censorship are much more tortuous than they seemed only months ago.
One focus of concern is PICS -- the Platform for Internet Content Selection -- which was developed developed by the World Wide Web Consortium based at MIT with backing of the anti-CDA coalition. Since it can be built directly into the framework of the Web, PICS is coming under fire from many of its previous supporters as a scaffolding for Orwellian censorship. It is defended by others as a technology required to realize the potential of the Web, which can be used enhance individual choice, not only to restrict it. Here are some pieces on both sides of this uneasy debate:
Last modified: October 6 1999, 9:48 PM