Seattle University Law Review, Spring 1997 (20 SULR 711)

Cite as: 20 Seattle U. L. Rev. 711

Seattle University Law Review

Spring 1997

Internet Law Symposium

*711 BRIDGING THE ANALOGY GAP: THE INTERNET, THE PRINTING PRESS AND FREEDOM

OF SPEECH

Jonathan Wallace [FNa]

Michael Green [FNaa]

In June of 1996, a three?judge federal court issued a decision in ACLU v. Reno [FN1] holding that the Communications Decency Act, barring indecency on the Internet, was unconstitutional. Although all three judges concurred in the result, each rendering separate opinions containing some fascinating discussion of the correct analogy to apply to the Internet, there is virtually no agreement: one judge never discusses the issue; [FN2] one thinks the Internet could be comparable with either the telephone system or print; [FN3] and the third compares the Internet both to a printing press [FN4] and to a "worldwide conversation." [FN5]

Without judicial constraint and adherence to overarching principles of free speech, courts are likely to create a crazy quilt of First Amendment jurisprudence pertaining to the Internet, driven by the emotions and contingencies of the moment. The best proof of this danger is the patchwork of laws that the courts have already created where other electronic media are concerned. Laws pertaining to radio, television, cable, and the telephone are inconsistent and also contradict some basic First Amendment values.

*712 The Supreme Court will bring the highest degree of clarity to the Internet freedom of speech debate if, in ACLU v. Reno, it sets forth the operative metaphor for freedom of speech and applies the metaphor in conjunction with an appropriate analogy for the technology. [FN6]

Part I of this Article discusses judicial decision?making tools with an emphasis on the use of analogy and the importance of applying legal precedents in a manner which is consistent and logical. Part I also discusses the use of metaphor in judicial decisionmaking and illustrates how operative metaphors for free speech have served to provide judges with guiding principles in applying the law. Part II of this Article discusses the use of analogical reasoning in cases involving technological media of communications. It points out that where courts do not analogize new technology to old, they fail in their decisionmaking capacity and therefore create confusing precedent. This Part concludes that, in determining the proper First Amendment treatment of new technologies, courts must apply the operative freedom of speech metaphor as well as determine the correct analogy for the technology. Part III of this Article examines the patchwork of laws which exist in First Amendment cases pertaining to technological media. This Part will explain the use of terms such as "spectrum scarcity" and "pervasiveness" which courts have used to rationalize different levels of governmental intrusion into speech. Part III will also look at the case of Denver Area Educational Technological Consortium v. FCC [FN7] and argue that it is an illustration of the confusion that is created when courts fail to find technological analogies in free speech cases.

Part IV of this Article addresses how courts can best understand the Internet. It lists metaphors which have developed for the Internet and explains how they can be considered by courts to help understand the technology from a user's perspective. Finally, this Part concludes that the Internet is most similar to the printing press for free speech purposes. By recognizing the Internet as similar to the printing press, the courts should feel compelled to permit the least amount of governmental intrusion into content.

*713 I. Judicial Decision?Making Tools

A. Analogy and Adherence to Precedent

In his lectures on the judicial process, Judge Benjamin Cardozo seven decades ago acknowledged that a judge does not find law in the same way that a scientist discovers a law of nature. [FN8] Judges make law, much as a legislator does, and in so doing, they must search history for rulings on similar subject matter:

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. [FN9]

And he quoted Maitland: "'Today we study the day before yesterday, in order that yesterday may not paralyze today, and today may not paralyze tomorrow." ' [FN10]

Cardozo urged that judges begin by first asking what the subject matter resembles:

The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that precedents are ultimate sources of the law, supplying the sole equipment that is needed for the legal armory, the sole tools, to borrow Maitland's phrase, "in the legal smithy." Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and further back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn. [FN11]

Once the precedents have been collected and sorted so as to "separate the accidental and the non?essential from the essential and inherent," there is much more to the work. [FN12] The judge must effectively apply precedent to the contemporary state of facts before her, selecting from, or blending, the following approaches:

*714 The directive force of a principle may be exerted along the lines of logical progression; this I call the rule of analogy or the method of philosophy; along the line of historical development; this I will call the method of evolution; along the line of the customs of the community; this I will call the method of tradition; along the lines of justice, morals and social welfare, the mores of the day; and this I will call the method of sociology. [FN13]

Each of Cardozo's pathways stresses the importance of adhering to precedent in resolving the issue at hand. The path which leads there most directly is what he calls "the rule of analogy." Analogy is a "logic[al] . . . inference that certain admitted resemblances imply probable further similarity." [FN14] In cases dealing with a new medium, analogical reasoning involves the selection of a model from prior media. This is the thought process which, for example, led courts in the nineteenth century to recognize that the telephone was effectively like the telegraph. [FN15]

The other three methods provide alternative routes to the same result. The method of history involves reviewing history in search of similar things and events, any of which may become the analogy if logic confirms its applicability. The third method, custom, is similar to history: one might call custom a subset of the precedent you find in history. Finally, the sociological method, as Cardozo explains it, involves determining the "social value" of a proposed ruling, [FN16] or rather, its fairness and consistency with contemporary mores.

Of Cardozo's four pathways, the sociological method relies least on analogy to reach a result. Nevertheless, a result which determines the social value of the ruling may be best cemented with a good analogy. After all, a well? reasoned ruling may be of little continuing value if courts fail to recognize it as a precedent in a future case where it would otherwise have provided guidance. Analogies can therefore *715 serve as the thread connecting a sociological result to future controversies.

Because of its lack of adherence to precedent, Cardozo notes that the sociological method may only be freely used within the gaps left by prior rulings:

We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance. We must keep within those interstitial limits which precedent and custom and the long and silent and almost indefinable practice of other judges through the centuries of the common law have set to judge?made innovations. But within the limits thus set, within the range over which choice moves, the final principle of selection for judges, as for legislators, is one of fitness to an end. [FN17]

Cardozo also quotes Saleilles: "'The goal is the internal life, the hidden but fruitful soul, of all law." ' [FN18] Ultimately, the judicial process involves "search and comparison, and little else." [FN19] The law which results "is not found, but made." [FN20] Cardozo sums up by saying:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. [FN21]

The judicial process, as Cardozo describes it, is similar to the taxonomy pioneered by Cuvier: compare a new animal to familiar animals to determine the one to which it is most similar. Then analyze the differences. [FN22] The judicial process even has its echo in modern object?oriented software analysis, where the analyst names classes of objects and creates a hierarchy of "inheritance" based on their relationships to one another. [FN23] Adjudication, to put it simply, is no more than another form of human work; like all others, it benefits from a careful use of analogical reading.

*716 B. Use of Metaphor

A metaphor is "a figure of speech in which one thing is likened to another, different thing by being spoken of as if it were that other. . . ." [FN24] It is a profoundly important concept for freedom of speech in general because it creates consistency and gives direction to policy, legislation, and adjudication. [FN25]

The importance of analogy and adherence to precedent in the judicial process is demonstrated by a host of authors who have developed metaphors for the judicial process. For example, constitutional scholar Ronald Dworkin has suggested a chain novel to describe the process, where judges are the authors who each write a chapter of the story. [FN26] The idea of a "chain novel" is marvelously tactile. The character who was cruel and selfish in chapter one may, through personal growth caused by hard experience, become compassionate in chapter ten; but he should not sprout wings and fly. The "chain novel" metaphor is perfectly consistent with Cardozo's view of the constraints judges must respect in their decisionmaking role. Dworkin's chain novel metaphor brings to life Cardozo's theory and illustrates it in a manner which is both accessible and entertaining.

Michael Kammen, in his metaphorically?titled book on the Constitution, A Machine That Would Go of Itself, [FN27] discusses shifting metaphors for our Constitution:

The most common way of referring to the Constitution??the oldest as well as the most enduring??is simply as an "instrument," often preceded by such modifiers as "written," "practical," "sacred" and "wonderful" . . . .

During the second half of the nineteenth century another metaphor came into vogue, more vivid than instrument but also more ephemeral: the analogy to an anchor. . . . It recurred from time to time during the next half century, but essentially was supplanted by two others that gained even wider currency . . . . .

The first of these, the notion of a constitution as some sort of machine or engine, had its origins in Newtonian science. . . .

*717 [After 1888], a cultural transition took place that leads us to the last of the major constitutional metaphors. We may exemplify it with brief extracts from three prominent justices: Holmes, who wrote in 1914 that "the provisions of the Constitution are not mathematical formulas . . . they are organic, living institutions"; Cardozo, who observed in 1925 that "a Constitution has an organic life"; and Frankfurter, who declared in 1952 that "The Constitution is an organism." [FN28]

The power of metaphors for the Constitution has increased over time and has greatly impacted decisionmaking. For example, if the policy question on the table is "How frequently should we amend the Constitution?" each metaphor could give a different answer to the question. With Kammen's first metaphor, an instrument is merely amended, which is easy to do and unproblematic. With the second, an anchor is modified, which is almost as easy and is unlikely to interfere with its efficiency. With the third, a machine is redesigned, which may be somewhat more laborious than changing an anchor and may possibly break it, or at least cause it to run less efficiently. However, with the last metaphor, an organism is subjected to radical surgery??something that should almost never be done except in a great emergency.

The operative metaphor for freedom of speech in the United States was created by Justice Oliver Wendell Holmes, writing in 1919, in the following famous words:

[T]he ultimate good desired is better reached by free trade in ideas . . . . [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . [FN29]

Courts since then, when in need of a metaphor for freedom of speech, have usually reached for Holmes's "marketplace of ideas." Courts' adherence to Holmes's phrase illustrates the important benefits of a strong metaphor. Once courts decide that free speech is a marketplace of ideas, many questions are answered. Under First Amendment jurisprudence, when judges ask themselves "Under what circumstances should speech be prevented from entering the marketplace?" they immediately consider the circumstances under which they would enjoin the distribution of a product. A strong American interest in the freedom of commerce dictates that a product will not be banned *718 merely because judges do not approve of it. Thus, the choice of a metaphor immediately provides insight to resolve disputes relating to the subject matter.

Similarly, a court may be concerned with the ultimate fate of good speech and bad speech: Will the former be drowned out while the latter triumphs? The marketplace of ideas metaphor, founded on optimism, reassures us that good speech will triumph because it is the better product. Once again, the metaphor guides us rapidly to the right philosophical and sociological answer to our question. [FN30]

Not all metaphors are equal. A bad metaphor can, of course, lead to bad decisionmaking. Cass Sunstein believes that the "marketplace of ideas" metaphor has literally turned the freedom of speech into a degraded form of commerce. He characterizes the "system of free expression in America" as a "system of unregulated private markets," similar to "cars, brushes, cereal and soap." In this system, an individual could only be heard by persuading a newspaper or broadcast station to allow it, unless she was wealthy enough to purchase the space. Free speech is a "commodity in a free market economy" with economic value and protected by antitrust law. [FN31]

Sunstein explicitly blames Justice Holmes for the cheapened commercial conception of free speech:

Holmes' opinion builds strong protection for speech on two foundations: skepticism about prevailing understandings of truth and the metaphor of "competition in the market." Truth itself is defined by reference to what emerges through "free trade in ideas." For Holmes, it seems to have no deeper status. The competition of the market is the governing conception of free speech. On his view, politics itself is a market, like any other. [FN32]

Sunstein prefers a "town meeting" concept of freedom of speech, in which the First Amendment is intended to solely protect democratic *719 deliberation, and not degraded matters such as advertising or pornography. The importance, according to Sunstein, is to encourage debate among varying cultures. Further, people should be "open to the force of argument" in an effort to "give up their initial views when shown the general benefit of the whole community." This, he concludes, will produce better public decisions because "there is a great deal of empirical evidence that deliberation can have a transformative function on beliefs." [FN33]

Again, the choice of the metaphor can determine the outcome. Sunstein, contrary to the opinions of First Amendment analysts supporting the marketplace of ideas metaphor, believes that government should intervene in speech where necessary to promote democratic deliberation. For example, you cannot run an efficient town meeting if people are waving pornography. He calls our lack of substantive discussion on public issues and diversity of views in decisionmaking a "Madisonian failure" and argues that, in some cases, government intrusion can "actually improve free speech processes." [FN34]

Steven H. Shiffrin proposes a different approach. He wants our symbol of freedom of speech to be the romantic dissenter, an Emerson, Whitman or Thoreau:

If the first amendment is to have an organizing symbol, let it be an Emersonion symbol, let it be the image of the dissenter. A major purpose of the first amendment, I will claim, is to protect the romantics??those who would break out of classical forms: the dissenters, the unorthodox, the outcasts. The First Amendment's purpose and function in the American polity is not merely to protect negative liberty, but also affirmatively to sponsor the individualism, the rebelliousness, the anti?authoritarianism, the spirit of nonconformity within us all. [FN35]

Shiffrin's dissenter is an appealing figure, but it cannot function as a metaphor for freedom of speech. It can be said that the American system of freedom of expression is a marketplace or a "town hall," but not that it is a dissenter. The dissenter stands at one remove, a symbol of the individual the First Amendment is intended to protect, not a symbol of the system itself. Nevertheless, the dissenter as a symbol also serves the purpose of helping to determine outcomes. In answering a question like, "may we ban demonstrations in public *720 parks?" the metaphor pointing out the need to protect dissent provides more guidance than the "marketplace of ideas" metaphor.

It is beyond the scope of this Article to recommend an appropriate metaphor for the freedom of speech itself. Instead, these examples are given to illustrate the importance of metaphor to free speech determinations. In what follows, it is assumed that the "marketplace of ideas" is the prevailing metaphor, as it is the one that the Supreme Court has chosen in those cases in which a metaphor is mentioned at all.

II. Use of Analogical Reasoning in Technological Cases

Analogical reasoning plays a profoundly important role whenever a court must decide the proper legal rules to apply to a new technology. Sadly, however, courts usually stumble before they find the correct analogy for new technologies. The law of copyright has provided several notorious examples. Piano rolls were not originally understood to be analogous to sheet music. [FN36] Software stored in read only memory was not understood to be the same as software stored on disk. [FN37]

Communications scholar Ithiel de Sola Pool published his remarkable Technologies of Freedom in 1983. [FN38] Subtitled "Of Free Speech in an Electronic Age," the book forecasts many of the dangers and disputes that we are encountering fourteen years later in determining which rules to apply to electronic media. Following Cardozo's injunction to study the past for its applicability to the future, Pool gives an incomparable historical account of the legal confusion surrounding the introduction of telegraphy and the 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 telegraph 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. [FN39]

Pool cites a classic Supreme Court failure of imagination. In 1899, the Supreme Court denied telephone companies use of the public *721 right of way for their wires, which had been granted to telegraph companies by the 1866 Post Roads Act:

[G]overnmental 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. [FN40]

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. Although such determinations are almost always eroded over time or reversed later, they may cause harm in the intervening years. When determining First Amendment applicability to new technologies, a court must consider not only the technology itself, but also principles of free speech. Determinations as to the proper First Amendment treatment of new technologies should be influenced by the operative freedom of speech metaphor as well as the correct analogy for the technology.

An example of the early use of analogy is Primrose v. Western Union Telegraph Co., [FN41] in which the Court faced the question of whether a telegraph company could refuse to transmit a telegram based on its content. Prior to the Primrose decision, telegraph companies sometimes provided their own journalistic wire service and refused to carry dispatches from reporters to their newspapers, viewing these as competition. [FN42]

In 1866, Congress included in the Post Roads Act [FN43] a requirement that telegraph companies provide service, to all customers without discrimination like a common carrier. The Supreme Court agreed and held that "[t]elegraph companies resemble railroad companies and other common carriers, in that they are instruments of commerce" [FN44] and therefore, must provide services without discrimination. The Court selected the railroad as the appropriate analogy for the telegraph and determined that services must be similarly provided. [FN45]

*722 Selection of an operative metaphor for freedom of speech to be used in conjunction with the telegraph analogy would have aided the Court in deciding this case. Holmes's "marketplace of ideas," for example, would have supported the conclusion that the telegraph company's ban on journalistic dispatches was an unfair ban on entry into the marketplace by a company which enjoyed a public monopoly or use of the public right of way. [FN46]

The danger in technological freedom of speech cases is that courts tend to regard each new communications technology as sui generis, not relevant to anything which came before it. Zechariah Chafee, in his seminal Free Speech in the United States, [FN47] observed that for centuries newspapers, books, pamphlets and large meetings were the only means of public discourse, and the need for their protection was obvious. When new methods of discourse developed, writers and judges were not versed in protecting freedoms. This led to the "censorship of the mails, the importation of foreign books, the stage, the motion picture and the radio." [FN48]

Models for new technology, and analogical reasoning, help us avoid such sui generis determinations in several ways. A persuasive analogy is similar to an intuitive rule in that it is simple, appeals to the imagination, and is easy to apply. [FN49]

*723 Since an analogy innately makes a comparison between two things, it reminds us that the subject matter before us is likely not sui generis and is probably similar to something else. At the same time, a metaphor like the "marketplace of ideas" is a useful image for the values to apply in making the determination. Most importantly, strong metaphors and logical analogies deter bad outcomes in hard cases, when more subtle doctrines would be easily overlooked. These judicial tools "keep[ ] the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said." [FN50]

III. First Amendment Jurisprudence Pertaining to

Communications: A Patchwork

of Conflicting Laws

A common complaint of First Amendment law is that it is a patchwork, devoid of any guiding moral principle. This patchwork has generated legislative confusion, incongruous decisions and judicial inefficiency. Each time courts are required to rule on an issue they are forced to repeat the same work. Although this problem has spawned a move toward creating a single standard for all communications media, agreement as to what that standard should be is not likely to be created soon. Until that time, courts will continue to add discrepant standards. For example, Shiffrin notes:

First amendment law now is, if nothing else, a complex set of compromises. Sometimes speech that presents a clear and present danger is protected; sometimes it is not; sometimes speech is not protected even though it presents no clear and present danger of any ordinarily recognizable evil. The Court periodically formulates exquisitely precise rules; it settles at other times for the most generally phrased standards; often it opts for hazy formulations and relies on the lower courts to fill in the details; sometimes the Court stays its hand and says nothing. The result is a body of law *724 complicated enough to inspire comparisons with the Internal Revenue Code. [FN51]

Shiffrin calls First Amendment law a "[c]ommittee product," created by "[n]ine independent social engineers," and adds that committee products are "notoriously schizophrenic." [FN52]

Professor Eric M. Freedman adopted a marvelous metaphor to describe the plight of First Amendment law today:

Current free speech law resembles the Ptolemaic system of astronomy in its last days. Just as that theory grew increasingly incoherent in an attempt to incorporate new empirical observations that were inconsistent with its basic postulates, so is First Amendment doctrine disintegrating as cases reviewing restraints on speech strive to paper over the fact that analyses based on presuppositions as to the value of particular kinds of expression are inconsistent with the premises of the First Amendment itself. [FN53]

For example, in 1915, the Supreme Court held that movies were not protected expression under the First Amendment because they are "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." [FN54] However, in 1952 the Court reversed itself on this point, holding that operation for profit has no effect on whether the freedom of expression should be protected. [FN55] The Court added sensibly that "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 command, do not vary." [FN56]

In Leathers v. Medlock, [FN57] Justices Marshall & Blackmun expressed a similar view: "Although cable television transmits information by distinctive means, the information service provided by cable does not differ significantly from information services provided by . . . newspapers, magazines, television broadcasters, and radio stations." [FN58] *725 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 on the information itself. Contrast this, however, with Red Lion Broadcasting v. FCC, [FN59] where the Supreme Court found that "it is able to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish." [FN60]

A. Spectrum Scarcity and Persuasiveness

A string of broadcast cases from National Broadcasting Co. v. United States [FN61] through Federal Communications Commission v. Pacifica Foundation, [FN62] cable cases such as Turner Broadcasting Systems, Inc. v. Federal Communications Commission [FN63] and Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, [FN64] as well as telephone cases such as Sable Communications v. Federal Communications Commission [FN65] are examples of Shiffrin's committee?based social engineering. In reading these cases, one looks in vain for an operative metaphor for free speech. Because of the lack of a "fruitful soul" in the Supreme Court's electronic media jurisprudence, these decisions fail to recognize the parallels with prior media, and instead become caught up in technological details which an overarching metaphor might subsume. [FN66]

For example, the doctrine of "spectrum scarcity" allowed Congress to make rules for broadcast media that would be unconstitutional if applied to print. In National Broadcasting Co. v. United States, the Communications Act of 1934 was upheld by the Court *726 because the radio was not available to everyone, or "scarce," which distinguished it from other modes of expression. [FN67]

The Court could have reached a different result either by analogizing the radio to the telephone or by applying the generic "marketplace of ideas" metaphor. For the first, broadcasters, rather than providing their own content, might have been treated as common carriers like the telephone or telegraph companies, forced to lease bandwidth to any customer requesting it. [FN68] For the second, instead of being given away free to licensees, the rights to broadcast on the various available frequencies might have been divided up and sold to the highest bidder. This would have created an incentive to the owner to sublicense or resell smaller parts or time slots of spectrum that would, in the long run, have been fairer and created a more diverse dialog on the airwaves than that which exists today. [FN69] Either approach would have resulted in a more permissive application of free speech principles, and accordingly would have allowed for less restrictions on speech.

Due to the lack of an anchoring metaphor and failure to analogize consistently, the technical distinction of spectrum scarcity was soon forgotten and new bases for government intervention were identified. Later, the censorship originally justified on scarcity grounds was applied to other, nonscarce electronic media.

For example, in Federal Communications Commission v. Pacifica Foundation, a case which Pool called a "legal time bomb" because it "could be used to justify quite radical censorship," [FN70] the Court identified an alternative excuse for censorship: the "pervasiveness" doctrine. Pacifica, known as the "Seven Dirty Words" case, involved an afternoon broadcast on public radio of comedian George Carlin's monologue about the seven words "you cannot say on the air." [FN71] The Court upheld the Federal Communications Commission's sanction of the station but neglected to mention spectrum scarcity as the foundation of broadcast regulation. Instead, it referred to the "uniquely pervasive presence" of broadcasting to justify the sanction. Conservative groups have since leaped on "pervasiveness" as an important source of government authority to censor the Internet, arguing *727 forcefully in Congress and the courts that it can be regulated because, though not scarce, it is "pervasive." [FN72]

Persuasiveness is both a misleading and dangerous argument for regulation of indecent Internet content. It is misleading because of what almost everyone concedes is a compelling government interest in protecting children from sexual material. [FN73] Yet it is dangerous because it still does not provide any substantive basis for distinguishing between electronic media and print. A child is just as likely, if not more likely, to stumble upon indecent content by flipping through a copy of Playboy found in the bottom of a closet, discover a copy of National Geographic in the library, or indeed, to find a rape or dismemberment scene in the Old Testament [FN74] as he is to find similar content on the Internet. The Bible may reasonably be called "pervasive" in the sense that it is probably still found in more American households than are television sets.

Likewise, there is no "spectrum scarcity" argument in the telephone cases. In fact, in the last century the telephone company was declared a common carrier which could not intervene in the content of its customers' speech. [FN75] Then, in the 1980s, Congress passed legislation regulating telephone "dial?a?porn." The Court upheld the *728 "reverse blocking" of telephone indecency in Sable Communications v. FCC. [FN76] The Court failed to reveal the legal source of its ability to regulate the content of telephone speech. It held that the government had a compelling state interest in protecting children from indecent speech and that the legislation was narrowly tailored because adults could still obtain "dial?a?porn" if they wished. No one has yet explained why the same constitutional test, applied to print, could not be used to justify the banning of Catcher in the Rye from bookstores or libraries and forcing adults to send for it by mail. [FN77]

There is also no argument of spectrum scarcity in cable television cases, as cable does not travel over the airwaves and the number of channels that can be brought into the home is limited only by the ever?increasing bandwidth of the cable itself. Nevertheless, the Court has declined the invitation to hold cable as free as the press or to hold cable as restricted as broadcast. The Court has not elucidated the bizarre treatment of cable as a fluctuating hybrid, nor has it explained why the FCC has any influence over it. The results of the hybrid are often untenable. For example, cable stations are prohibited from carrying shows available in the same marketplace via broadcast stations, while at the same time they can be compelled to carry the local broadcast stations under the "must?carry" rules. [FN78]

Rationales proffered by the Court for government intervention in cable originally included that cable is "ancillary to" television; that it competes with television; and that some cable channels are broadcast via the airwaves to the local facility that sends them over the cable into peoples' homes. [FN79] In Turner v. Federal Communications Commission, [FN80] a "must carry" case, the Court gave some indication that it might be preparing to free cable from television?style restrictions when it finally distinguished cable television from the broadcast medium. [FN81]

*729 B. Denver Area Educational Telecommunications v. FCC

In Denver Area Educational Telecommunications Consortium v. Federal Communications Commission, [FN82] Pool's ticking time bomb finally exploded. In Denver, the Court considered federal legislation affirming a cable provider's right to ban indecency on leased access channels; [FN83] requiring the "reverse blocking" of indecent content if not banned; [FN84] and allowing the provider to block indecent content on public access channels. [FN85] The Court upheld the first provision and held the other two unconstitutional.

Before Denver, many believed that the Pacifica court had not intended "pervasiveness" to be meaningful in the absence of "scarcity." But in Denver, four justices explicitly endorsed "pervasiveness" as a rationale to justify government intervention in speech, even if spectrum scarcity was inapplicable to the medium in question. Denver, decided in June of 1996, is the ultimate example of the First Amendment doctrinal drift: it is a confusing, fragmented decision, without a majority opinion. The decision, though somewhat contradictory, substantively tilts in favor of freedom of expression. Procedurally, however, it achieves its goals via a dangerous pathway because of the plurality's failure to analogize. Justice Breyer, writing on behalf of three other justices, complained:

Like the petitioners, Justices Kennedy and Thomas would have us decide this case simply by transferring and applying literally, categorical standards this Court has developed in other contexts. For Justice Kennedy, leased access channels are like a common carrier. . . . For Justice Thomas, the case is simple because the cable operator who owns the system over which access channels are broadcast, like a bookstore owner with respect to what it displays on the shelves, has a predominant First Amendment interest. . . . Both categorical approaches suffer from the same flaws: they import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without *730 sacrificing the free exchange of ideas the First Amendment is designed to protect. [FN86]

Justice Breyer's opinion says that "rigid" judicial formulae will act as a "straight jacket" which "disables government from responding to serious problems":

[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. . . . [A]ware 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. [FN87]

Applying a "balancing" approach and citing Pacifica's "pervasiveness" doctrine approvingly, the plurality held that granting cable providers the right to ban indecent programming on leased channels partly restored their prior right to select programming. [FN88] On the other hand, "reverse blocking" requirements were onerous and expensive. Finally, the right to interfere in public access programming violated the discretion of local municipalities, which might view the content differently than the cable provider.

Justice Souter, who joined in the plurality opinion, also wrote a concurrence. He agrees with Justice Kennedy that 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." [FN89] He therefore felt it necessary to explain why he joined the Court's unwillingness to prescribe a category. He explained that the cable industry, like the rest of the telecommunications industry, is in a state of flux, and the possibility looms that the separate electronic media will converge. Rules for one medium which ignore the potential effects on others would soon be antiquated. [FN90]

Noting that it is likely that media will "become less categorical and more protean," [FN91] Justice Souter concludes that the proper doctrinal category is not yet clear. [FN92] With a strange pride, Justice Souter points out that it took fifty years for the clear and present *731 danger test in Schenk v. United States [FN93] to evolve into the modern incitement rule of Brandenburg v. Ohio. [FN94] Finally, with misplaced confidence, he quotes from the Hippocratic oath: "First, do no harm." [FN95] He is apparently unaware of the serious harm potentially inflicted on the freedom of speech by the plurality's endorsement of "pervasiveness" and its refusal to establish the correct analogy.

Justice Kennedy, joined by Justice Ginsburg, dissenting in part, recognizes that "the plurality opinion . . . is adrift." [FN96]

The 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. [FN97]

He concludes that adherence to standards "even when it means affording protection to speech unpopular or distasteful, is the central achievement of our First Amendment jurisprudence." [FN98] The use of analogy is "a responsibility," rather than the "luxury" that the plurality considers it to be. [FN99]

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. [FN100]

Justice Kennedy is correct. The approach followed by the plurality would have been shocking to Justice Cardozo because the plurality is saying that history is unclear, the method of analogy is too confusing, we are uncertain about applicable customs, and social values give uncertain guidance. Therefore, rather than pursuing these *732 analyses, we'll just balance the interests and hope we did the right thing.

When a ship loses its anchor, it may drift away, or it may drift back over you. As Congress legislates, and the Court upholds, broader exceptions to the freedom of speech, the question becomes why print should even be exempt. In Tornillo v. Miami Herald, [FN101] professor Jerome Barron, who had written articles calling for broadcast treatment of the press, asked the Court to apply the FCC's "fairness doctrine" to newspapers. [FN102] Barron wanted to force the Miami Herald to publish a reply to an editorial it had printed about his client. The Supreme Court refused to take the bait, though Barron persuasively argued that newspapers have monopoly power. [FN103]

IV. Understanding the Internet: How Best to

Determine the Applicability of

Free Speech Principles

The dispute over regulation of indecent speech on the Internet, culminating in the ACLU v. Reno decision, is a battle between two analogies, broadcast and the printing press. The statute at issue, the Communications Decency Act (CDA), [FN104] amalgamated broadcast language from the Communications Act of 1934 [FN105] and more recent FCC regulations [FN106] to fashion a regulatory scheme for the Internet. Supporters of the CDA argued that, though the Internet might lack scarcity, it was pervasive as required by the Court in Pacifica, and therefore its content was subject to government regulation. The ACLU and other free speech proponents argued that the Internet, like the printing press, should be free of any regulation of content.

A. The Use of Metaphor to Understand the Technology

Emerging technologies have relied on metaphor to explain their uses. Metaphor allows us to understand new modes of communication by offering us vivid images of the technology's power and utility. *733 Marshall McLuhan may be called the patron saint of communications metaphor. In addition to his famous description of television as "the global village," [FN107] he also called the telegraph "the social hormone" [FN108] and radio "the tribal drum." [FN109]

In fact, the instrumentality by which we access the Internet??the computer?? utilizes an interface based on metaphors. You click on a garbage can icon to delete a file, drag an image to drop it into your text, and open an in?box to read your mail. The computer screen simulates a desktop. Calling the Internet the "Net" is itself a metaphor, as are the phrases "cyberspace" (the network simulates geographical space) and the "information superhighway" (which makes the geographical metaphor more concrete by describing the kind of physical space the system emulates??a highway). The Internet is an exciting new medium, and writings about it by journalists, sociologists, and users overflow with metaphor.

William Mitchell, in the metaphorically?titled City of Bits, [FN110] says:

The network is the urban site before us, an invitation to design and construct the City of Bits (capital of the twenty?first century), just as, so long ago, a narrow peninsula beside the Maeander became the place for Miletos. But this new settlement will turn classical categories inside out and will reconstruct the discourse in which architects have engaged from classical times until now.

This will be a city unrooted to any definite spot on the surface of the earth, shaped by connectivity and bandwidth constraints rather than by accessibility and land values, largely asynchronous in its operation, and inhabited by disembodied and fragmented subjects who exist as collections of aliases and agents. Its places will be constructed virtually by software instead of physically from stones and timbers, and they will be connected by logical linkages rather than by doors, passageways and streets. [FN111]

Other authors choose metaphors for the computer based on human communities and interactions. Howard Rheingold, in the metaphorically?titled The Virtual Community, [FN112] said:

*734 There's always another mind there. It's like . . . the corner bar, complete with old buddies and delightful newcomers and new tools waiting to take home and fresh graffiti and letters. . . . It's a place. [FN113]

For Allucquere Rosanne Stone, the operative metaphor is the computer as a human prosthesis, and the most resonant image is her two year old daughter merged with a computer:

In the image a two?year?old sits at an ancient 8086 clone, her tiny hands on the keyboard, a huge grin on her face. The screen radiates a brilliant yellow glow that illuminates her face and arms. Suffused with that electronic glow, her face almost seems to be taking on an illumination of its own. She seems to evince a generous permeability, an electronic porosity that is pathognomic of the close of the mechanical age. . . and as I glance up at the image I can see the machine doing it too, as they both hover on the brink of collapsing into each other. This implosion is her moment. [FN114]

Sherry Turkle sees the Internet as a personal movie:

[I]t is computer screens where we project ourselves into our own dramas, dramas in which we are producer, director and star. Some of these dramas are private, but increasingly we are able to draw in other people. Computer screens are the new location for our fantasies, both erotic and intellectual. [FN115]

Although these metaphors were not conceived by lawyers and are not dedicated to legal outcomes, they have profound significance for Cardozo's "sociological method" of judicial analysis. One cannot regulate a medium of expression, any more than one can a medium of commerce such as the stock exchange or the international letter of credit system, without first understanding what it means to its users and what they derive from it. Cardozo comments:

The triers of the facts. . . must consult the habits of life, the everyday beliefs and practices, of the men and women about them. Innumerable, also, are the cases where the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade or market or profession. . . . Life casts the moulds of conduct, which will some day become fixed as law. *735 Law preserves the moulds, which have taken form and shape from life. [FN116]

Cardozo recommends that, where there is a conflict, the judge should typically apply the mores of the community in question, not his own:

Let us suppose, for illustration, a judge who looked upon theatre?going as a sin. Would he be doing right if, in a field where the rule of law was still unsettled, he permitted this conviction, though known to be in conflict with the dominant standard of right conduct, to govern his decision? My own notion is that he would be under a duty to conform to the accepted standards of the community, the mores of the times. [FN117]

Before creating a rule for the Internet, a judge ought to consult, among others, Rheingold, Mitchell, Stone and Turkle, in order to understand the custom and usage of the Internet. The metaphors which these authors adopt for the Internet communicate a massive amount of information compressed into a small package, facilitating efficient analysis.

A striking example of such a consultation occurred at the Philadelphia trial of ACLU v. Reno, where sociologist Donna Hoffman of Vanderbilt University testified on behalf of the plaintiffs. Hoffman explained her theory of "flow": the psychological satisfaction we derive from the uninterrupted, improvisatory movement of the World Wide Web. [FN118] Technological solutions which require a human action, such as password screens, or which slow down the network, such as ratings systems in which your software must check the rating of every screen it accesses, interrupt the flow. The government's expert, Dr. Olsen, agreed that even "a minute is [an] unreasonable [delay] . . . [P]eople will not put up with a minute." [FN119] The court combined these statements in its findings of fact. [FN120]

Nonspontaneous, carefully described metaphors proposed by lawyers or judges also have an important role in First Amendment *736 jurisprudence. The successful "marketplace of ideas" metaphor is an obvious example. While metaphors offered by users inform judges following the "sociological method" of the boundaries and mores of the subject matter, legal analogies bind a court's thinking and provide a flag to be saluted in future cases.

B. Analogizing the Internet for First Amendment Jurisprudence

Legal analogies for the Internet tend to be more restrained than the users' images of computers as self?created movies or prostheses. In the field of Internet law and its predecessor, the law applicable to bulletin board systems (BBSs) and on?line services such as CompuServe and Prodigy, a legal dialog dating back to the mid?1980s, has produced many analogies to other modes of communications. Lance Rose summarizes these in his book entitled Netlaw, which contains sections titled "The Online System as Print Publisher," "The Online System as Telephone Service," "The Online System as Bookstore," and (shades of Rheingold) "The Online System as Local Bar." [FN121] Rose's exegesis in this last section illustrates the utility of a good legal analogy:

If a bar patron spouts slanderous falsehoods about his boss, its obvious the words are his, not the bar owner's. If another customer keeps stolen software under his trench coat and sells it in the back room outside the bar keep's notice, that activity is the software seller's alone, and cannot imaginably be blamed on the owner of the bar. [FN122]

Naturally, proponents of Internet regulation have no shortage of analogies of their own. Besides the broadcast analogy, which is innate in the CDA itself, [FN123] the rhetoric of CDA supporters is well?represented by Senator Daniel R. Coats's statement that "[t]he Internet is like taking a porn shop and putting it in the bedroom of your children and then saying, 'Do not look." ' [FN124] Again, analogies determine outcomes: If the Internet is a porn shop in a child's bedroom, the only conceivable reaction of a civilized human being would be to get it out of there.

Some judges have analogized electronic media to print. A key precedent from libel law proposes a library or bookstore model for on?line services that distribute other people's text. In Cubby, Inc. v. *737 CompuServe, Inc., [FN125] the court considered whether to hold CompuServe Information service liable for an alleged defamatory statement made on?line 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. [FN126]

The court concluded that CompuServe had no more control over the content of the messages and files it carries than a "public library, book store or newsstand . . ." and that it would be no more feasible for CompuServe to examine the contents of every file it carries "than it would be for any other distributor to do so." [FN127]

However, when Prodigy relied upon Cubby in Stratton Oakmont, Inc. v. Prodigy Services Co., [FN128] 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. [FN129] This was due to Prodigy "[holding] itself out to the public and its members as controlling the content of its computer bulletin boards." [FN130] Significantly, both Cubby *738 and Stratton used a print medium as the analogy for on?line services. [FN131]

Justice Thomas, in his partial dissent in the Denver case, also opted for print as the appropriate analogy for cable. He argued that cable providers, like book or magazine editors, should have unfettered discretion to decide which speech to present to their customers. [FN132]

In ACLU v. Reno, Judges Sloviter and Judge Dalzell chose two different analogies, while Judge Buckwalter never discussed analogy at all. [FN133] Chief Judge Sloviter compared the Internet to the telephone system: "Internet communication, while unique, is more akin to telephone communication, at issue in Sable, than to broadcasting, at issue in Pacifica, because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online." [FN134] This apparently means that, according to Sloviter, the Internet could be regulated as a common carrier, which guarantees greater protection from restriction than broadcasting, but would still subject the Internet to more regulation than print.

Judge Sloviter, however, also compared the Internet to print:

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. [FN135]

Judge Dalzell's views are more expansive. He argued that the Internet is a "new medium of mass communication," [FN136] and that *739 First Amendment jurisprudence requires consideration of its special qualities to determine if the CDA is constitutional. [FN137]

Dalzell recited an impressive list of Supreme Court opinions, explaining that the "medium?specific approach to mass communication examines the underlying technology of the communication to find the proper fit between First Amendment values and competing interests." [FN138]

Dalzell rejected the notion that the Internet resembles broadcasting. He argued that the Internet is a unique medium for mass communication and may be protected even more than print because it overcomes many of the failures of print:

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. [FN139]

*740 He pointed out that print media, by comparison, accomplish none of these elements. Restrictions on the Internet will actually "reduce" it to the level of print media: "In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country." [FN140] And again, "this change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence." [FN141] Earnestly, Dalzell cautioned that "[w]e should also protect the autonomy that such a medium confers to ordinary people as well as media magnates." [FN142]

Dalzell, therefore, would put the Internet on a higher pedestal than print and certainly higher than broadcast. He concluded:

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," . . . 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, . . . [r]egardless of how beneficent? sounding the purposes of controlling the press might be," . . . even though "occasionally debate on vital matters will not be comprehensive and . . . all viewpoints may not be expressed," . . . 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. [FN143]

In determining an analogy for the Internet, Dalzell declared that, "[t]he Internet is a far more speech?enhancing medium than print, the village green, or the mails." [FN144] He concluded:

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 *741 CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. [FN145]

Judge Dalzell described the Internet as a "world wide conversation," realizing that a conversation could take place over a conference table, over a phone line (including a video conference transmitted via a phone line or the Internet), through the mail (or e?mail), by typing a message to another person in an on?line chatroom, or even while sitting under an old oak tree distributing copies of ideas to discuss with acquaintances. [FN146]

The First Amendment to the Constitution provides all Americans with three basic, yet extremely important, protections: freedom of *742 speech, freedom of the press and the right to assemble peacefully. [FN147] The rationale for guaranteeing one of these rights can usually be applied to the others. Indeed, "[i]t was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people to peaceably assemble. . . ." [FN148]

As the Supreme Court has stated over the years:

Those who won our independence believed . . . [t]hat freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; . . . and that this should be a fundamental principle of the American government. [FN149]

Further, "'the right of the people peaceably to assemble' . . . along with religion, speech, and press are preferred rights of the Constitution, made so by reason of that explicit guarantee . . . ," [FN150] and "the premise that the right to assemble peaceably . . . [is] among the most precious of the liberties safeguarded by the Bill of Rights. Moreover, [this right is] . . . intimately connected both in origin and in purpose, with the other First Amendment rights of free speech and free press." [FN151] Ultimately, "[n]o one can read the long history which records the stern and often bloody struggles by which these cardinal rights were secured, without realizing how necessary it is to preserve them against any infringement, however slight." [FN152]

Precious, preferred, indispensable, cardinal. These are the operative words used by the court in an effort to hold the First Amendment as one of the most sacred clauses in the Constitution. Each stirs a certain emotion that confirms the validity of the statement it surrounds. If each of the rights provided by the First Amendment is given supreme authority separately, then surely a communications medium that combines all three should be given special consideration and deference when determining how much regulation, if any, should *743 be allowed. Not since the era of the town hall and the printing press has another form of mass communication so revolutionized public discourse by providing both speaker and listener with relative parity.

Indeed, the Internet could be analogized to either a virtual printing press or a virtual town hall. It is a place where people from many cultures, backgrounds and descents can interact with others with common threads and attachments. They can type their ideas in a text file and post it on?line, the equivalent of nailing a newsletter to a tree. The three judge panel of ACLU v. Reno seemed to agree that,

[The Internet] . . . links people, institutions, corporations, businesses, and governments around the world. . . . This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole. [FN153]