Page
Table
of Authoritiesii
INTEREST
OF THE AMICI CURIAE......... 1
STATEMENT
OF THE CASE AND SUMMARY
OF
ARGUMENT..................... 2
Argument
I.THE
TIME IS RIPE FOR THIS COURT
TO
SELECT THE CORRECT ANALOGY
FOR
CYBERSPACE3
II.THE
PROPER ANALOGY FOR
CYBERSPACE
IS PRINT................... 11
Conclusion................... 19
CasesPage(s)
ACLU
v. Reno,
929 F. Supp. 824
(E.D.
Pa. 1996)...... 11-14
Attorney
General v. Edison Telephone Co.,
6
Q.B.D. 244 (1880)............ 6
Apple
Computer, Inc. v. Franklin Computer Corp.,
545
F. Supp. 812 (E.D. Pa. 1982),
rev'd,
714 F.2d 1240 (3d Cir. 1984)....... 8
Chicago
Telephone Co. v. Postal Telegraph?Cable Co.,
285
Ill. 411, 120 N.E. 795 (1918)............ 6
City
of Richmond v. Southern Bell Telephone &
Telegraph
Co.,
174 U.S. 761 (1899).. 6-7
Cubby,
Inc. v. Compuserve, Inc.,
776
F. Supp. 135 (S.D.N.Y. 1991).......... 17
Denver
Area Educational Telecommunications
Consortium
v.
F.C.C., ___ U.S. ___,
116
S. Ct. 2374 (1996)2, 9-11,
17-18
Duke
v. Central New Jersey Telephone Co.,
21
A. 460 (N.J. 1891)..... 6
Turnpike
& Ry Co.,
135 N.Y. 393,
32
N.E. 148 (1892) ........... 6
It's
In The Cards, Inc., v. Fuschetto,
193
Wis. 2d 429, 535 N.W.2d 11
(App.
1995)17
Joseph
Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952)............ 7
Leathers
v. Medlock,
499 U.S. 439 (1991).................. 7-8
Miami
Herald Publishing Co. v. Tornillo,
418
U.S. 241 (1974).... 13,
16
Mutual
Film Corp. v. Industrial Comm. of Ohio,
236
U.S. 230 (1915)............ 7
Northwestern
Tel. Exch. Co. v. Chicago, M.
&
St. P. Ry. Co.,
76 Minn. 334,
79
N.W. 315 (1899)............ 6
Primrose
v. Western Union Telegraph Co.,
154
U.S. 1 (1894)......... 5-6
Smith
v. California,
361
U.S. 147 (1959).......... 16
165
Misc. 2d 21, 626 N.Y.S.2d 694
(Sup.
Ct., N.Y. Co. 1995)................... 17
Stratton
Oakmont v. Prodigy,
1995 WL 323710
(N.Y.
Sup. Ct. May 24, 1995)17
Turner
Broadcasting Sys., Inc. v. F.C.C.,
512
U.S. ___, 114 S. Ct. 2445 (1994).......... 18
White?Smith
Music Publishing Co. v. Apollo Co.,
209
U.S. 1 (1908)............ 8
Statute
The
Communications Decency Act of 1996,
47
U.S.C. §§ 223(a)?(h)1,
2, 14
Miscellaneous
Bernstein,
Solveig, Beyond the Communications
Decency
Act:
Constitutional Lessons of
the
Internet,
6 Cato Institute Policy
Analysis
No. 262 (November 4, 1996)....... 15
Black's
Law Dictionary
(6th ed.) (1990)..... 4
the
First
Amendment, 85 Colum. L.Rev.
449
(1985) 11
Bollinger,
Lee C., Images of a Free Press (1991). 18
Cardozo,
Benjamin, The Nature of the Judicial Process
(1921)........ 4
Chafee,
Zechariah, Free Speech in the United States
(1941)........ 8
Ethical
Spectacle................... 14
Kalven,
Harry, Broadcasting, Public Policy and
the
First
Amendment, 10 J. Law and
Econ.
15 (1967)............ 5
Lanham,
Richard,The Electronic Word:
Democracy,
Technology
and the Arts (1993).......... 16
Levy,
Steven, “How the Propeller Heads Stole
the
Electronic Future,” New York Times
Sunday
Magazine
(September 24, 1995)........... 10
de
Sola Pool, Ithiel, Technologies of
Freedom
(1983)............ 4
Sunstein,
Cass, On Analogical Reasoning,
106
Harv. L. Rev. 741 (1993)5
Tribe,
Lawrence H., The Constitution in Cyberspace,
Opening
Address at the First Conference
on
Computers, Freedom
and Privacy
(March
26, 1991).. 5, 16, 19
Wallace,
Jonathan & Mangan, Mark, Sex, Laws
and
Cyberspace
(1996).......... 15
INTEREST
OF THE AMICI CURIAE*
Site
Specific, Inc. and Jon Lebkowsky respectfully submit this brief as
amici curiae in support of appellees' assertion that the three?judge
district court correctly determined that the Communications Decency
Act of 1996 was unconstitutional.
Jon
Lebkowsky is a freelance writer and online activist based in Austin, Texas.
He hosts a weekly forum for activists at Hot Wired's www.talk.com and the
Austin conference at Electric Minds (www.minds.com), and is currently working
on a book for MIT Press. Lebkowsky also writes and distributes a periodic
column, Cyberdawg Barking, exclusively via the Internet, reaching
a potential audience of millions at minimal expense.He
uses the column to communicate his ideas on freedom of speech, politics,
and policy matters concerning the Internet. As an Internet?based writer,
Lebkowsky hopes that this Court will recognize that he and numerous other
writers depend on the Internet as a democratic, inexpensive print medium,
and accord it appropriate protection.
Both
amici depend on the Internet for their livelihood and for communicating
with clients and colleagues. Both amici urge this Court to clarify
and stabilize the legal rules applicable to the Internet by according
speech on the Internet the highest protection accorded speech in any
medium.To do so, the Court should
acknowledge the essential similarity between the Internet and print
media.
STATEMENT
OF THE CASE
AND
SUMMARY OF ARGUMENT
The
Communications Decency Act of 1996 (“CDA”), 47 U.S.C. §§ 223(a)?(h),
is an intrusive government regulation of constitutionally protected speech,
fashioned in apparent ignorance of the technological medium it was
intended to regulate.We join with
appellees to urge affirmance of the judgment below holding that the
CDA is unconstitutionally vague and overbroad.We
file this brief, however, to urge this Court to focus on an issue the plurality
deferred in Denver Area Educational Telecommunications Consortium
v. F.C.C., ___ U.S. ___, 116 S. Ct. 2374, 2385 (1996) (“Denver”):
selecting “one analogy or specific set of words now” that will govern a
new communications medium.We
respectfully disagree with the Denver plurality's conclusion
that it is both possible and desirable to determine how to treat
a new medium without first determining what it is.In
the past, this Court has walked on firmer ground when it determined
the proper legal regime for new media by seeking the correct analogy.
We believe there is no proper alternative but to do so here.
Confusion
over the proper analogy for the Internet has led to a wide variety of contradictory
and legally infirm actions in state legislatures and in the courts, including
numerous state laws regulating content, and the prosecution of individuals
for speech which would clearly be protected in print. Only by issuing
a clear ruling that the Internet is analogous to print media can this Court
assure the development of a stable legal regime. Stability will promote
the growth of this infant medium, while the application of broadcast?style
rules will stifle the Internet's maturation.
Therefore,
we join appellees in requesting this Court to affirm, but we urge that
it eliminate legal confusion by specifically declaring that the
Internet, in its current form, is analogous to, and should for First Amendment
purposes be treated like, print media.
Argument
I.
THE TIME
IS RIPE FOR THIS
COURT TO
SELECT THE CORRECT
ANALOGY
FOR CYBERSPACE.
For
a court to consider the proper legal regime for a new communications
medium, it is essential that it first select an appropriate analogy
to prior media.A decision not founded
on analogical reasoning runs the risk of misapprehending the social significance
of a new technology, and therefore applying the wrong rule.
In
Technologies of Freedom, communications scholar Ithiel de Sola
Pool traced the process used by this Court and others in the nineteenth
century to resolve disputes pertaining to the telegraph and telephone:
Ithiel
de Sola Pool, Technologies of Freedom 100 (1983).
Benjamin
Cardozo, in his seminal lectures on the Nature of the Judicial Process,
described the value of what he called the “method of analogy”:
I
do not mean that the directive force of history, even when its claims are
most assertive, confines the law of the future to uninspired repetition
of the law of the present and the past. I mean simply that history, in
illuminating the past, illuminates the present, and in illuminating the
present, illuminates the future.
Benjamin
Cardozo, The Nature of the Judicial Process 53 (1921). Quoting Maitland,
he continued: “Today we study the day before yesterday, in order that yesterday
may not paralyze today, and today may not paralyze tomorrow.” Id.
at 54.
Blacks
Law Dictionary defines analogy as “[i]dentity or similarity of proportion,
where there is no precedent in point.” It continues:
In
cases on the same subject, lawyers have recourse to cases on a different
subject?matter, but governed by the same general principle. This is
reasoning by analogy. The similitude of relations which exist
between things compared.”
Black's
Law Dictionary
(6th ed.) 84 (1990).
Analogical
reasoning is a fundamental approach by which lawyers compare
new matters, including technology, to old ones in order to determine
which legal rules should apply. Reasoning by analogy is “the central
feature of the common law method, prevalent of course in American
constitutional law.” Cass Sunstein, On Analogical Reasoning,
106 Harv. L. Rev. 741, 781 (1993).
Id.
at 782.
Likewise,
Professor Tribe addressed the manner in which courts treat new technologies:
Our
constitutional law evolves through judicial interpretation, case by
case, in a process of reasoning by analogy from precedent. At its
best, that process is ideally suited to seeing beneath the surface and
extracting deeper principles from prior decisions.
Lawrence
H. Tribe, The Constitution in Cyberspace, Opening Address at the First
Conference on Computers, Freedom and Privacy (March 26, 1991), available
online at: gopher://gopher. cpsr.org/00/cpsr/conferences/cfp91/transcripts/
tribe.txt.
Finally,
Professor Kalven similarly urged some thirty years ago that the law pertaining
to a new communications medium should be “determined by a choice between
competing analogies.” Harry Kalven, Broadcasting, Public Policy
and the First Amendment, 10 J. Law and Econ. 15, 38 (1967).
This
Court has usually adopted such an approach and has searched for the appropriate
analogy in determining the proper legal regime for a new technology. In
Primrose v. Western Union Telegraph Co., 154 U.S. 1 (1894),
this Court selected the railroad as the appropriate analogy for the telegraph,
thus determining a progeny of precedents to follow. In applying analogical
reasoning, Primrose recognized:
Telegraph
companies resemble railroad companies and other common carriers, in that
they are instruments of commerce, and in that they exercise a public
employment, and are therefore bound to serve all customers alike,
without discrimination.
The
issue arose, as well, when the telephone was in its infancy, and many
courts chose to apply jurisprudence developed for the telegraph.See,
e.g., Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co.,
76 Minn. 334, 79 N.W. 315, 317 (1899) (“The rule is well established that
in applying the principles of the common law or in construing statutes
the telephone is to be considered a telegraph”);
Hudson River
Tel. Co. v. Watervliet Turnpike & Ry Co., 135 N.Y. 393, 32
N.E. 148, 149 (1892) (applying statutes authorizing telegraph transmission
to telephone); Attorney General v. Edison Telephone Co.,
6 Q.B.D. 244 (1880) (same); See also,Duke v. Central New Jersey
Telephone Co., 21 A. 460 (N.J. 1891) (The telephone is a “novel method
for accomplishing the object for which telegraphs were erected”);
But see Chicago Telephone Co. v. Postal Telegraph-Cable
Co., 285 Ill. 411, 120 N.E. 795, 799 (1918) (Carter, J., dissenting)
(“Telegraph companies are as distinct from telephone companies as
a railroad company is distinct from a steamboat company”).
However,
when a court fails to use analogical reasoning and attempts to regulate
a new technology without the guidance of history, it risks creating bad
law. In City of Richmond v. Southern Bell Telephone & Telegraph
Co., 174 U.S. 761 (1899), for example, this Court rejected the
obvious parallel between telephone and telegraph:
Governmental
communications to all distant points are almost all, if not all, in writing.
The useful government privileges which formed an important element in the
legislation would be entirely inapplicable to telephone lines, by
which oral communications only are transmitted. . . . [T]elegraphy
and telephony have different significations. . . .
Id.
at 776.
Then,
in 1952, in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952),
the Court reversed itself, recognizing the analogy between movies and printed
matter:
That
books, newspapers, and magazines are published and sold for profit
does not prevent them from being a form of expression whose liberty
is safeguarded by the First Amendment. We fail to see why operation for
profit should have any different effect in the case of motion pictures.
Id.
at 501.The Court went on to recognize
a need for consistency among the treatment of varying media: “Each
method [of communication] tends to present its own peculiar problems.
But the basic principle of freedom of speech and of the press, like the
First Amendment's commandments, do not vary.” Id. at 503.
In
Leathers v. Medlock, 499 U.S. 439 (1991), Justices Marshall
and Blackmun more recently expressed a similar view: “Although cable
television transmits information by distinctive means, the information
service provided by cable does not differ significantly from the information
services provided by . . . newspapers, magazines, television broadcasters,
and radio stations.” Id. at 457 (Marshall, J., joined
by Blackmun, J., dissenting).
In
other words, to attain consistency of First Amendment outcomes, the courts
and the legislatures should treat the method of storage or transmission
as irrelevant, and focus instead upon the information itself.
Professor
Zechariah Chafee, perhaps the greatest First Amendment scholar of the first
half of the 20th Century, also warned of the consequences of ignoring
the parallels among different forms of communication:
Newspapers,
books, pamphlets and large meetings were for many centuries the only
means of public discourse, so that the need for their protection has
long been generally realized; on the other hand, when additional methods
for spreading facts and ideas were introduced or greatly improved
by modern invention, writers and judges had not got into the habit of being
solicitous about guarding their freedom. And so we have tolerated
censorship of the mails, the importation of foreign books, the stage,
the motion picture and the radio.
Zechariah
Chafee, Free Speech in the United States, 381 (1941).
Notwithstanding
the effectiveness of analogical reasoning and the judicial success stories
associated with it, many courts are still reticent to apply this approach
to emerging technologies today. As recently as last year, the Denver
plurality declined to identify an appropriate analogy for cable television:
[N]o
definitive choice among competing analogies (broadcast, common carrier,
bookstore) allows us to declare a rigid single standard, good
for now and for all future media and purposes. . . . Rather, aware as we
are of the changes taking place in the law, the technology, and the
industrial structure, related to telecommunications, we believe it
unwise and unnecessary to pick one analogy or one definitive set of
words now.
Id.
at 2385 (citations omitted).
The
[plurality] opinion treats concepts such as public forum, broadcaster,
and common carrier as mere labels rather than as categories with settled
legal significance; it applies no standard, and by this omission loses
sight of existing First Amendment doctrine. When confronted with a threat
to free speech in the context of an emerging technology, we ought
to have the discipline to analyze the case by reference to existing
elaborations of constant First Amendment principles.
Id.
at 2404 (Kennedy, J., joined by Ginsburg, J., concurring in part, concurring
in the judgement in part and dissenting in part). They further asserted
that the “creation of standards and adherence to them, even when it
means affording protection to speech unpopular or distasteful, is the central
achievement of our First Amendment jurisprudence.”
Id. at 2406. The use of analogy is a “responsibility,” rather
than the “luxury” the plurality considered it to be.Id.
at 2407.They concluded as follows:
Another
troubling aspect of the plurality's approach is its suggestion that
Congress has more leeway than usual to enact restrictions on speech when
emerging technologies are concerned, because we are unsure what
standard should be used to assess them. Justice Souter recommends
to the Court the precept, “First, do no harm”. . . . The question, though,
is whether the harm is in sustaining the law or striking it down. If the
plurality is concerned about technology's direction, it ought to begin
by allowing speech, not suppressing it.
Id.
at 2407.
Justice
Souter, in his Denver concurrence, expressed concern that finding
an analogy for cable might improperly predispose courts to decide cases
from other technologies in the same way:
Id.
at 2402 (Souter, J., concurring).
This
“cyber?technology of the Internet and the World Wide Web” is before the
Court right now.To delay analogical
reasoning further because of the possibility of a later technological
convergence would be, we submit, a serious error, especially because
it is unclear whether that convergence will quickly occur. In fact,
the vision of the Information Superhighway as culminating in
a television set with a communications box on top is still uncertain,
while the Internet thrives as a network culminating in a desktop
PC. See generally Steven Levy, “How the Propeller Heads Stole
the Electronic Future,” New York Times Sunday Magazine
(September 24, 1995) 58.
Pressing
and controversial issues pertaining to speech on the Internet demand an
immediate, clear and comprehensive resolution. Confusion over the
applicability of the First Amendment to the Internet has already led
to a plethora of inconsistent results and highly invasive federal and state
legislation. In order to bring this case to complete closure, direct the
courts in the resolution of future disputes, and guide Congress
and the states in future policy making, it is imperative that this Court
select the proper analogy for cyberspace.
As
Justice Souter said in his concurrence in Denver, a strict categorical
approach “keeps the starch in the standards for those moments when the
daily politics cries loudest for limiting what may be said.” 116 S. Ct.
at 2401.See, e.g., Vincent
Blasi, The Pathological Perspective and the First Amendment, 85
Colum. L.Rev. 449, 474 (1985) (courts “should place a premium on confining
the range of discretion left to future decisionmakers who will be called
upon to make judgments when pathological pressures are most intense”).
II.
THE PROPER
ANALOGY FOR
CYBERSPACE
IS PRINT.
The
district court below expressly found:
Evidence
adduced at the [preliminary injunction] hearing showed significant differences
between Internet communications and communications received by radio or
television. Although content on the Internet is just a few clicks of a
mouse away from the user, the receipt of information on the Internet
requires a series of affirmative steps more deliberate and directed
than merely turning a dial.
ACLU
v. Reno,
929 F. Supp. 824, 845 (E.D.Pa 1996). In addition, although Chief Judge
Sloviter compared the Internet to the telephone system,
id. at 851, she also drew the parallel to print media:
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.
Id.
at 857. Thus, the chief judge would, at the very least, look to solutions
historically proven to work for the print media and apply them to problems
on the Internet.
By
contrast, Judge Dalzell found the Internet to be a “far more speech-enhancing
medium than print, the village green, or the mails,” id. at 882,
because of four related characteristics of “transcendent importance”:
Id.
at 877.By comparison, print
media accomplish none of these goals, and he asserted that unwise, unconstitutional
restrictions on the Internet will ultimately reduce it to the
current level of print media and broadcasting:
In
this respect, the Internet would ultimately come to mirror broadcasting
and print, with messages being tailored to a mainstream society from
speakers who could be sure that their message was likely decent in every
community in the country. * * *This
change would result in an Internet that mirrors broadcasting and print,
where economic power has become relatively coterminous with influence.
Id.
at 878-79.
Judge
Dalzell cautioned that “[w]e should also protect the autonomy that such
a medium confers to ordinary people as well as media magnates.” Id.
at 882. Consequently, he would place the Internet on an even higher First
Amendment pedestal than print or broadcast media:
Id. at
881.
Judge
Dalzell's finding that the Internet is “a far more speech-enhancing
medium than print,” id. at 882, raises the question whether
a higher degree of First Amendment protection should be applied to the
Internet than has historically been granted to print media. Alternatively,
by arguing that the Internet is more democratic and diverse than
print, he asserts that the Internet should receive at least
the same degree of protection available to print media.
The
district court's Findings of Fact also support the argument that the
Internet should be considered, for First Amendment purposes,
at least equivalent to print publishing:
Web
standards . . . have grown to meet the publishing needs of many large corporations,
banks, brokerage houses, newspapers and magazines which now publish
“online” editions of their material, as well as government agencies,
and even courts, which use the Web to disseminate information to the
public. At the same time, Web publishing is simple enough that thousands
of individual users and small community organizations are using the
Web to publish their own personal “home pages,” the equivalent of individualized
newsletters . . . .
Id.
at 837. See e.g., The Ethical Spectacle, a web?based magazine
available at: http://www.spectacle.org (published by Jonathan Wallace
d.b.a. The Ethical Spectacle, a plaintiff in this action).
Congressional
supporters of the CDA have made it absolutely clear that they intended
this law to apply to literary text when published on the Internet. Congressman
Goodlatte of Virginia, addressing the House of Representatives,
said, “if someone transmits the entire novel `Catcher in the Rye'
they would not be violating an indecency standard, but if they transmit
only certain passages out of context they might.” 142 Cong. Rec. H1145?06
(daily ed. Feb. 2, 1996) (statement of Rep. Goodlatte). The proposition
that excerpts from Catcher in the Rye, quoted in a print essay
or anthology would be ‘indecent” is inherently discomforting.A
failure to regard the Internet as analogous to print will create a double
standard for literary works; one that allows broad protection when
these works are printed on paper or stored on a shelf of a bookstore,
but creates criminal liability for the same literary works and other protected
speech in an electronic format.
Other
commentators have drawn the analogy between the Internet and print media.
For example, a leading text has described the Net as a “constellation
of printing presses and bookstores”:
Every
computer connected to the Net is a printing press, which its owner
can use to write the next Common Sense, the next Walden
or Aeropagitica, and send it off to the world. But every computer
connected to the Net is equally a bookstore, which can store all these
works and make them available to anyone who wants to download them.
Jonathan
Wallace & Mark Mangan, Sex, Laws and Cyberspace 228 (1996).
A
leading work on the law of online services and the Internet also endorses
the print analogy:
In
attempting to describe the place of online services as part of today's
computer network revolution, it is natural to reach to the book metaphor
as symbol and vehicle of the last glorious advance in distributing information
on a previously unimagined scale. There is some validity to the model.
Much of the file traffic on online systems consists of text files,
which can be considered the electronic analogue to printed books.
While most of the texts are still plain, more book like presentations are
being introduced all the time. Sorting through text files can be much
like skimming the spines in a row of books. Downloading a text file
for later reading can be like taking a book home from the store, especially
if the electronic service charges for the download in some form. Some providers
take the book metaphor very literally. There are a growing number of actual
books online in electronic text form, and a growing number of online services
referring to themselves as electronic bookstores.
Lance
Rose, Netlaw 18 (1995). Professor Tribe asserts that “computer
gateways and bulletin boards are really the `bookstores' of cyberspace;
most of them organize and present information in a computer format,
rather than generating more information content of their own.” Tribe,
The Constitution in Cyberspace, supra.
While
broadcast media are often regarded as the death of print literacy, cyberspace
has been heralded as a welcome restoration of print to primacy.Richard
Lanham, a professor of English and author of a widely used text on rhetoric,
has written extensively about the effects of online hypertext on literacy:
The
basic implications of electronic technology may be inevitable but what
we make of them certainly is not. We are free to think about, and plan
for, literary creation and literary study in ways more agile, capacious,
and hopeful than any generation has possessed since literature began
to figure in human life.
Richard
Lanham, The Electronic Word: Democracy, Technology and the Arts
25 (1993).
A
significant pair of libel cases also treat online services, the predecessors
to the Internet, as bookstores under the rule of Smith v. California,
361 U.S. 147 (1959) or as publishers, in accordance with Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
In
Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y.
1991), the court considered whether to hold the Compuserve Information
Service liable for an allegedly defamatory statement made online by
a user of the service. The court held:
Compuserve's
CIS product is in essence an electronic, for?profit library that carries
a vast number of publications and collects usage and membership fees
from its subscribers in return for access to the publications. . . . While
Compuserve may decline to carry a given publication altogether,
in reality, once it does decide to carry that publication, it will have
little or no editorial control over that publication's contents.
Id.
at 140. The court concluded that “Compuserve has no more editorial control
over such a publication than does a public library, bookstore, or newsstand,
and it would be no more feasible for Compuserve to examine every publication
it carries for potentially defamatory statements than it would be
for any other distributor to do so.” Id. See also Stern
v. Delphi Internet Services Corp., 165 Misc. 2d 21, 626 N.Y.S.2d
694, (Sup. Ct., N.Y. Co. 1995) (Online service is analogous to a news vendor
or bookstore, or a letters?to?the?editor column of a newspaper).
There
is a growing tendency, endorsed by Justice Thomas and joined by the Chief
Justice and Justice Scalia in the Denver case, to regard even cable
television as analogous to print:
In
Turner [Broadcasting Sys., Inc. v. F.C.C.,512
U.S. ___, 114 S. Ct. 2445 (1994)], by adopting much of the print paradigm,
and by rejecting Red Lion, we adopted with it a considerable
body of precedent that governs the respective First Amendment rights of
competing speakers. . . . Drawing an analogy to the print media,
for example, the author of a book is protected in writing the book,
but has no right to have the book sold in a particular bookstore without
the store owner's consent. Nor can government force the editor of a collection
of essays to print other essays on the same subject.
116
S. Ct. at 2421 (Thomas, J., joined by Rehnquist, C.J., and Scalia,
J., concurring in the judgment in part and dissenting in part).
As
Justice Thomas noted in Denver, 116 S. Ct. at 2421, this Court appeared
to endorse that view in Turner, when it wrote:
The
broadcast cases are inapposite in the present context because cable television
does not suffer from the inherent limitation that characterizes the
broadcast medium. . . . At the heart of the First Amendment lies the principle
that each person should decide for him or herself the ideas or beliefs
deserving of expression, consideration and adherence. Our political
system and cultural life rest upon this ideal.
114
S. Ct. at 2457.
A
major advantage of the analogy to print is that it forces legislators and
judges to focus on the First Amendment's protective goals, rather
than losing sight of them in a fruitless analysis of technological distinctions
without a difference. As Professor Tribe concluded:“[T]he
Constitution's norms, at their deepest level, must be invariant under merely
technological transformations.” Tribe, The Constitution
in Cyberspace,
supra. Adoption of a print analogy will
avoid the differential treatment of the same text in print and electronic
versions.
In
conclusion, this case provides an opportunity for this Court to create
uniformity from inconsistency and order from confusion. We respectfully
urge this Court to accomplish this task by finding that print is the proper
analogy for the Internet.
Dated:
February 19, 1997
Respectfully
Submitted,
Jamie
B.W. Stecher
Counsel
of Record
Stecher
Jaglom & Prutzman, llp
900
Third Avenue
Suite
1200
New
York, New York 10022-4757
(212)
355-4000
Counsel
for Site Specific, Inc.,
and
Jon Lebkowsky