Table of Contents


Table of Authoritiesii



OF ARGUMENT..................... 2






CYBERSPACE IS PRINT................... 11

Conclusion................... 19

Table of Authorities


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

Hudson River Tel. Co. v. Watervliet 

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

Stern v. Delphi Internet Services Corp.,

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


The Communications Decency Act of 1996,

47 U.S.C. §§ 223(a)?(h)1, 2, 14


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

Blasi, Vincent, The Pathological Perspective and 

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

Rose, Lance, Netlaw (1995)16

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


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 and the Austin conference at Electric Minds (, 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.

Site Specific, Inc. is a New York corporation specializ­ing in building interactive brands and businesses. Its services include strategic Internet consulting, web site and banner devel­opment, media planning and buying, and content licensing and syndica­tion. Site Specific, as a “new media” company, has much in common with more traditional design companies, con­sulting and advertising agencies, which perform their services in the well­settl­ed legal environment pertaining to print media.It believes that if this Court recognizes the analogy between the Internet and traditional print media, it will promote the growth and stability of new media.In addition, Site Specific's Chief Technology Officer, Clay Shirky, is a writer who relies on the Internet as one means of distributing his thoughtful essays on the meaning of the Internet as a new medi­um. Like amicus Lebkow­sky, Mr. Shirky utilizes the Internet heavily as a print medium.

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.



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.

This Court should recognize that print media are the proper analogy for the Internet. Like print, the Internet is a means for the replication, storage and transmission of huge amounts of text of every description and on every topic. The Internet is like a giant library of all human knowledge, and imposing broadcast­style indecency regulations would have the same pro­foundly destructive effects as such standards would have if im­posed upon the Library of Congress. Only by recognizing the analogy be­tween the Internet and print media will this Court assure the appropriate protection of the medium likely to become the main conduit for personal, politi­cal and creative speech in the next century.

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.






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:

Courts like to treat new phenomena by analogy to old ones. When the telephone was invented, the question was whether, at law, the telephone was a new kind of telegra­phy or something different. If the phone was a telegraph, a body of law already existed that would apply. The deci­sions sometimes went one way, some­times the other; but the model of the telegraph was always there to be consid­ered.

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). 

[It] has the advantage, for ordinary lawyers and judg­es, of hu­mility and circumspection, [and it] may be particu­larly desirable in contexts in which we seek moral evolution over time. . . . Analogical reasoning has the advantage of allowing a large degree of open­ness to new facts and perspectives. It en­ables disagree­ment and uncertainty to turn into consensus. 

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. 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. 

Id. at 14. 

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. 

Determinations based upon the failure to utilize analogi­cal reasoning are almost always eroded over time or reversed later, but may cause harm in the intervening years.For exam­ple, when this Court first considered the applicability of the First Amendment to the newly created technology of motion pictures in Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U.S. 230 (1915­), it distin­guished them from the press and denied them protection on the grounds they were “a business, pure and sim­ple, originated and conducted for profit, like other spectacles, not to be regarded . . . as part of the press of this country, or as organs of public opinion.” Id. at 244. 

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.

The law of copyright furnishes several significant exam­ples of undesirable outcomes when courts failed to follow this approach. For example, this Court originally failed to recognize the similarity of piano rolls to sheet music, White?Smith Music Pub­lishing Co. v. Apollo Co., 209 U.S. 1 (1908), and a district court misapprehended the analogy between software stored in ROM and software stored on disk, Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812 (E.D. Pa. 1982), rev'd, 714 F.2d 1240 (3d Cir. 1984). Such cases demon­strate how courts can impede the development of an emerging technol­ogy by fail­ing to analogize it to an existing medium.

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). 

As Justices Kennedy and Ginsburg noted, the plurality erred in declining to identify the correct analogy for cable, and thereby missed an important decisional opportunity:

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:

[A]s broadcast, cable, and the cyber?techno­logy of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others.

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”).




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”:

First, the Internet presents very low barriers to entry. Second, these barriers to entry are identi­cal for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even cre­ates a relative parity among speakers.

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:

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,” [Miami Herald Pub­lishing Co. v.] Tornillo, 418 U.S. [241,] 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 com­prehensive 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 viewpoints should receive at least the same pro­tection from intru­sion.

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: (published by Jona­than Wallace d.b.a. The Ethical Spectacle, a plaintiff in this action).

Accordingly, only by treating the Internet as analogous to print media will this Court ensure the full applicability of the First Amend­ment in the 21st Century. It is an imaginable, even a likely outcome, that someday text print­ed on paper will consti­tute mere­ly a small percentage of all the available text, with the rest stored in electronic format on the Internet and other net­works. Only by extending to the Internet the full protections of the First Amend­ment established for print will this Court ensure that the same text, whether in electronic or paper form, will receive consistent treat­ment.

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 recent Cato Institute report recommends “a view [of] the significance of computer networks in the marketplace of ideas . . . through the lens of analogy. One could say that com­puter networks have the power to transform the ordinary person into a publisher, a broadcaster, [or] a newspaper editor.” Solveig Bern­stein, Beyond the Communications Decency Act: Constitu­tional Lessons of the Inter­net, 6 Cato Institute Policy Analysis No. 262 (November 4, 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: 

We may expect a [good] deal of commentary greeting the electronic modification of print literacy as the death of the Western self. Surely the oppo­site is taking place. The characteristically unsta­ble Western self, by turns central and social, sincere and hypocritical, philosophi­cal and rhe­torical, is just what electronic literacy has been busy revitalizing . . . .

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).

However, in Stratton Oakmont v. Prodigy, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), when Prodigy relied upon Cub­by in an effort to avoid defamation liability, the court rejected the de­fense ostensibly because Prodigy was more like a pub­lisher that makes editorial decisions than a bookstore or li­brary that merely distributes publications. This was due to Prod­igy “[hold­ing] itself out to the public and its members as con­trolling the content of its computer bulletin boards.” Id. at 2. Significantly, both Cubby and Stratton Oakmont sought the correct analogy for online services in print media. See also It's In The Cards, Inc., v. Fusch­etto, 193 Wis. 2d 429, 535 N.W.2d 11 (App. 1995) (Posting a message to an on?line bulletin board is a “random communication of computer­ized messages analogous to posting a written notice on a public bulletin board”).

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).

If print is the analogy selected for cable, print must of ne­ces­sity be the right analogy for cyber­space. Indeed, it would be illogi­cal to assimilate the Internet to a broadcast model if such a mod­el was not used for cable, which is far more similar to broadcast televi­sion than the Internet. “The weight of opinion at the moment seems to have shifted toward adopting a unitary print media model for the entire mass media. . . .” Lee C. Bol­ling­er, Images of a Free Press 86 (1991) (discussing Colum­bia Broadcasting Sys. v. F.C.C., 453 U.S. 367 [1981] [Fairness Doctrine case analogizing broad­casters to print journal­ists]). 

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

*Letters of consent to the filing of this brief have been lodged with the Clerk of the Court pursuant to Rule 37.3.