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]
Copyright
© 1997 Seattle University Law Review; Jonathan Wallace, Michael B.
Green
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]
The
court's findings of fact characterized the Internet as "interactive," where
the user becomes both the "listener" and "content provider." This makes
the Internet a "unique and wholly new medium of worldwide human communication."
[FN154]
Interactivity
may be the missing link between the Internet and other mediums. Other than
a conversation, there is no completely interactive medium. One can write
a letter to the editor of a newspaper, but the newspaper will never print
all the letters it receives. One can call into a radio station, but only
a select few callers will be put on the air. And one may get fifteen minutes
of fame on television, but most of us do not have this opportunity. In
contrast, the Internet, as Dalzell argued, could be considered a worldwide
conversation. If the Internet is restricted, he predicted that many Internet
users will either drop out or censor their information. Therefore, "[s]ince
much of the communication on the Internet is participatory, i.e., is a
form of dialogue, a decrease in the number of speakers, speech fora, and
permissible topics will diminish the worldwide dialogue that is the strength
and signal achievement of the medium." [FN155]
The
court in Shea v. Reno, [FN156] the sister case to ACLU v. Reno, agreed.
*744
As the growth in Internet use and the wide availability of tools and resources
to those with access to the Internet suggest, the Internet presents extremely
low entry barriers to those who wish to convey Internet content or gain
access to it. In particular, a user wishing to communicate through e?mail,
newsgroups, or Internet Relay Chat need only have access to a computer
with appropriate software and a connection to the Internet, usually available
for a low monthly fee. The user then in a sense becomes a public "speaker,"
able to convey content, at relatively low cost, to users around the world
to whom it may be of interest. . . . The ease of entry of many speakers
sets interactive computer systems apart from any other more traditional
communications medium that Congress has attempted to regulate in the past.
With one?way media such as radio and television broadcasting or cable programming,
a user is merely a listener or viewer; in the CDA, Congress sought to target
"interactive" computer systems through which a listener or viewer, by definition,
has the power to become a speaker. The relative ease of speaker entry and
the relative parity among speakers accounts for the unprecedented and virtually
unlimited opportunities for political discourse, cultural development,
and intellectual activity that Congress found to characterize emerging
communication technologies. [FN157]
The
idea that a communications medium can be a "public forum" is not new. For
example, in Denver, Justice Kennedy argued that "[p]ublic access channels
meet the definition of a public forum." [FN158] Although the "most familiar
. . . traditional forums [are] . . . streets, sidewalks and parks, which
by custom have long been open for public assembly and discourse, . . .
[p]ublic forums do not have to be physical gathering places . . . nor are
they limited to property owned by the government." [FN159] Justice Kennedy
argued that "[a] common carriage mandate . . . serves the same function
as a public forum. It ensures open, nondiscriminatory access to the means
of communication. . . . Once a forum is opened up to some groups for assembly
or speaking, the government may not prohibit other groups from assembling
or speaking on the basis of what they intend to say." [FN160]
*745
Regardless of whether the Internet is compared to broadcast, cable, common
carriage, print or even a "worldwide conversation," the Internet can still
be considered a public forum not only for its open and nondiscriminatory
access, but also for its open and nondiscriminatory content. As a society
we are less likely to drive to the library to do research, or attend a
local meeting of a hobby group to seek out others with mutual interests;
increasingly, we are a society that clicks on an Internet search engine
to find the information we need, browses websites, or converses in newsgroups
with a diverse group of people with mutual interests. Justice Kennedy agreed
that there is a shift in public discourse; therefore, narrowing the definition
of a public forum "would have [a] pernicious [effect] . . . in the modern
age. Minds are not changed in the streets and parks as they once were.
To an increasing degree, the more significant interchanges of ideas and
shaping of public consciousness occur in mass and electronic media." [FN161]
This is evident in the increasing number of "on?line" versions of "paper"
magazines and newspapers.
C.
The Internet is Analogous to the Printing Press
for
Free Speech Purposes
As
we move into the twenty?first century, incidents will occur on the Internet
that will require the courts to either create brand new law in a vacuum
or to look for analogies in prior cases for guidance. We conclude that
the town meeting, as expressed in Dalzell's "worldwide conversation," and
the printing press, are the leading speech enhancing analogies for the
Internet. In order to decide which analogy is superior, we should first
examine the criteria for selecting an analogy. First, the analogy, in accordance
with Cardozo's "sociological method," should be consistent with Internet
custom and usage, facilitating the workings of the Internet and the benefits
that its users expect to derive from it. Second, it should further the
dominant "marketplace of ideas" metaphor for freedom of speech, and incorporate
overarching speech values tailored to the actual circumstances of the Internet.
Third, the analogy should be derived from history to promote familiarity
and ease of use in future decisionmaking. Finally, it should be simple,
expressive and easy to understand in order to facilitate its use by laypeople,
legislators, lawyers, and judges who are involved in Internet free speech
issues.
*746
Under these criteria, the Internet is more analogous to the printing press
than the town hall. The Internet, for free speech purposes, should be regarded
as a "constellation of printing presses and bookstores." [FN162]
Every
computer attached to the Internet simultaneously utilizes its capability
to create text (acting as a printing press), distribute text created by
other people (acting as a bookstore) or store text (acting as a library).
Although pictures, animations, and sound files are also speech, the primary
use of the Internet today is to distribute and receive text??e?mail messages,
Usenet and listserv discussions, electronic newsletters and other files.
Use of the Internet, and of the World Wide Web in particular, has created
a new public interest in literacy and a corresponding concern with such
matters as typography, layout, graphics and hypertext links.
Most
commentators agree with Judge Dalzell that a major importance of the World
Wide Web is that it makes an international audience available at minimal
cost to amateur speakers. According to a Cato Institute policy analysis,
"computer networks, particularly the Internet, offer the casual, noninstitutional
user a unique new opportunity to reach a wide audience for his or her speech.
. . ." [FN163] This leads to "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, a newspaper editor." [FN164]
Also,
the printing press metaphor stresses the importance of free speech. Both
spirited discussions via on?line message boards and the widespread availability
of archived information on the Internet promote not only literacy, but
also the dissemination of individual ideas. The power to set your thoughts
and ideas to paper (or on?line text) and distribute them is rewarding to
human development and autonomy, and therefore more supportive of liberty
than the town hall, which addresses political discourse.
Therefore,
we reject the town hall and endorse the "constellation of printing presses
and bookstores" for two reasons. First, it is more consistent with Holmes's
"marketplace of ideas." Printing presses supply bookstores, and bookstores
are the marketplace of ideas. A town hall analogy for the Internet would
make sense only if the town *747 hall was the operative metaphor
for freedom of speech itself. Second, the town hall analogy is frequently
used (as Sunstein uses it) to justify government intervention in speech
which does not directly advance the interests of deliberative democracy.
Ultimately, the town hall as a model may lead to the Meiklejohnian ideal:
that the First Amendment is only intended to protect political speech.
This ideal detracts from First Amendment protections and is contrary to
its historical jurisprudence. [FN165] Therefore, because we believe that
a broader range of speech than the political is important, rewarding to
human development and autonomy, and supportive of liberty, we reject the
town hall analogy and endorse the "constellation of printing presses and
bookstores."
V.
Conclusion
In
the nineteenth century, faced with a confusing array of new technologies,
courts soon selected the correct analogy to resolve doubtful legal issues:
by comparing the telegraph to prior methods of common carriage, and the
telephone to the telegraph, they established the correct legal treatment
for each technology.
As
the twenty?first century approaches, courts are once again faced with a
similar challenge and must accomplish the same mission for the Internet.
The selection of an analogy should be accomplished with the operative freedom
of speech metaphor??Justice Holmes' "marketplace of ideas"??in mind. The
analogy selected should not only resolve legal confusion about the Internet,
but should further the American marketplace of ideas.
The
printing press, if selected as the correct analogy for the Net, will further
both these goals. It will establish the highest level of First Amendment
protection for the Net, while assuring the untrammeled and unmediated competition
of ideas in cyberspace.
Finally,
a thought experiment: posit that before the end of the next century, the
quantity of text available electronically will be one thousand times that
which is available on paper. Adoption of the printing press as the correct
analogy for the Internet will ensure that *748 electronic text and
paper text are treated consistently. [FN166] A rule which permits stricter
regulation of electronic text will result in the full protection of the
First Amendment becoming an anomaly, merely a historical survival for an
ever? dwindling amount of speech.
The
Internet and World Wide Web, although young, already offer a rich tradition
of conversation, advocacy, dreams, stories, metaphor and debate. To preserve
and foster the growth of this inherently democratic medium, the Supreme
Court should analogize the Internet to a "constellation of printing presses
and bookstores."
FNa.
J.D. 1980, Harvard Law School; attorney and software executive based in
New York City; co?author with Mark Mangan of Sex, Laws and Cyberspace (1996).
FNaa.
B.A. 1991, State University of New York?Albany; J.D. 1997, Hofstra University
School of Law. Thanks to Jonathan Wallace for his insight, guidance and
support. Special thanks to my parents, to whom I dedicate my first article
and whose influence throughout my life makes this as much theirs as mine.
FN1.
929 F. Supp. 824 (E.D. Pa. 1996).
FN2.
Judge Buckwalter, in a passing comment, slightly touched on the differences
in regulating various mediums of communications. "Prior cases have established
that government regulations to prevent access by minors to speech protected
for adults, even in media considered the vanguard of our First Amendment
protections, like print, may withstand a constitutional challenge." Id.
at 859. Even if Judge Buckwalter didn't attempt to categorize the Internet,
at least he agrees that print holds a special or "vanguard" position within
the Constitution.
FN3.
Id. at 852.
FN4.
Id. at 878.
FN5.
Id. at 883.
FN6.
This Article concentrates on the proper analogy for the Internet. However,
we also believe (as does Ithiel Pool, infra note 15) that the printing
press is the correct analogy for all communications media.
Editor's
note: On June 26, 1997, just prior to publication of this Article, the
Supreme Court ruled on ACLU v. Reno, holding that the "indecent transmission"
and "patently offensive display" provisions of the Communications Decency
Act were unconstitutional infringements on freedom of speech. The opinion
can be found at 1997 WL 348012 (1997).
FN7.
116 S. Ct. 2374 (1996).
FN8.
See generally Benjamin Cardozo, The Nature of the Judicial Process (1921).
FN9.
Id. at 53.
FN10.
Id. at 54 (quoting Frederic Maitland, Collected Works Volume III 438 (H.A.L.
Fisher ed., 1911)).
FN11.
Cardozo, supra note 8, at 19.
FN12.
Id. at 30.
FN13.
Id. at 30?31.
FN14.
Webster's New Twentieth Century Dictionary 64 (1975).
FN15.
See Ithiel de Sola Pool, Technologies of Freedom 100 (1983). Cass Sunstein
notes approvingly that analogical reasoning does not require people to
develop full theories to account for their convictions; it promotes moral
evolution over time; it fits uniquely well with a system based on principles
of stare decisis; and it allows people who diverge on abstract principles
to converge on particular outcomes.... A notable aspect of analogical thinking
is that people engaged in this type of reasoning are peculiarly alert to
the inconsistent or abhorrent. Cass R. Sunstein, On Analogical Reasoning,
106 Harv. L. Rev. 741, 790?91 (1993).
FN16.
Cardozo, supra note 8, at 73.
FN17.
Id. at 103.
FN18.
Id. (quoting Raymond Saleilles, On Juridical Personality 497 (1911) (translation
by Jonathan Wallace)).
FN19.
Cardozo, supra note 8, at 163.
FN20.
Id. at 115.
FN21.
Id. at 112.
FN22.
See generally Georges Cuvier, The Animal Kingdom, Arranged In Conformity
With Its Organization (Kier B. Sterling, ed., Ayer Co. Pub. 1978).
FN23.
See generally Peter Coad & Ed Yourdon, Object Oriented Analysis (1991).
FN24.
Webster's New Twentieth Century Dictionary 1132 (1975).
FN25.
While the line between metaphor and analogy is not precise, Sunstein states
that metaphors are comparisons, while analogies are more literal. See Sunstein,
supra note 15, at 748 n.26.
FN26.
Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution
10 (1996).
FN27.
Michael Kammen, A Machine That Would Go of Itself 16?19 (1986).
FN28.
Id. at 16?19 (citing Gompers v. United States, 233 U.S. 604, 610 (1914)
(Holmes quote); Browne v. City of New York, 149 N.E. 211, 214 (N.Y. 1925)
(Cardozo quote); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 518 (1952)
(Frankfurter quote)).
FN29.
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
FN30.
See Thomas v. Collins, 323 U.S. 516, 546 n.1 (1945) (Jackson, J., concurring)
(quoting Woodrow Wilson, Address at the Institute of France (May 10, 1919),
in Selected Literary and Political Papers and Addresses of Woodrow Wilson
333 (1926)).
I
have always been among those who believed that the greatest freedom of
speech was the greatest safety, because if a man is a fool, the best thing
to do is to encourage him to advertise the fact by speaking. It cannot
be so easily discovered if you allow him to remain silent and look wise,
but if you let him speak, the secret is out and the world knows that he
is a fool. So it is by the exposure of folly that it is defeated; not by
the seclusion of folly, and in this free air of free speech men get into
that sort of communication with one another which constitutes the basis
of all common achievement. Id.
FN31.
Cass R. Sunstein, Democracy and the Problem of Free Speech 17?18 (1993).
FN32.
Id. at 25.
FN33.
Id. at 241?43.
FN34.
Id. at 251.
FN35.
Steven H. Shiffrin, The First Amendment, Democracy and Romance 5 (1990).
FN36.
See White?Smith Music Publ'g Co. v. Apollo Composers, 209 U.S. 1, 10 (1908).
FN37.
See Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812,813
(E.D. Pa. 1982), rev'd, 714 F.2d 1240 (3rd. Cir. 1983).
FN38.
Pool, supra note 15.
FN39.
Id. at 100.
FN40.
Id. (quoting City of Richmond v. S. Bell, Tel. & Tel. Co., 174 U.S.
761, 776 (1899)).
FN41.
154 U.S. 1 (1893).
FN42.
Pool, supra note 15, at 92?95.
FN43.
19 Stat. 319 (1877).
FN44.
Pool, supra note 15, at 95?96 (quoting Primrose, 154 U.S. at 14 (1893)).
FN45.
See also Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co.,
79 N.W. 315, 317 (Minn. 1899) ("The rule is well established that in applying
the principles of the common law or in construing statutes the telephone
is tobe considered a telegraph ....");
Hudson River Tel. Co. v. Watervliet Turnpike & Ry Co., 32 N.E. 148,
149 (N.Y. 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 of accomplishing the object for
which telegraphs were erected ...."); but see, Chicago Telephone Co. v.
Postal Telegraph?Cable Co., 120 N.E. 795, 799 (Ill. 1918) (Carter, J.,
dissenting) ("Telegraph companies are as distinct from telephone companies
as a railroad company is distinct from a steamboat company.").
FN46.
Holmes, of course, described the marketplace of ideas in the Abrams decision
some twenty?six years after the Court decided Primrose.
FN47.
Zechariah Chafee, Free Speech in the United States (1941).
FN48.
Id. at 381.
FN49.
Philosopher Peter Singer draws a distinction between "intuitive" and "critical"
rules of ethics. Intuitive rules are simpler, broader, more appealing to
the imagination and easier to remember and apply. See Peter Singer, Practical
Ethics 92?93 (1993) (citing R.M. Hare, Moral Thinking (1981)). Singer discusses
the distinction between critical and intuitive moral reasoning:
To
consider, in theory, the possible circumstances in which one might maximize
utility by secretly killing someone who wants to go on living is to reason
at the critical level ... Everyday moral thinking, however, must be more
intuitive. In real life we usually cannot foresee all the complexities
of our choices.... Hare suggests, it will be better if, for our everyday
ethical life, we adopt some broad ethical principles and do not deviate
from them.
Id.
See also Vincent Blasi, The Pathological Perspective and the First Amendment,
85 Colum. L. Rev. 449, 471?72 (1985). Arguing that First Amendment jurisprudence
should create rules that will stand up in pathological times such as the
McCarthy era, Blasi notes that courts should search for methods of justifying
their judgments that appeal to the common, unsophisticated understanding
of what law is.... From the standpoint of influencing attitudes regarding
the desirability of free speech, we might begin the quest for simplicity
by recognizing the valuable role played by some of the simple precepts
of the judicial heritage.... [citing the marketplace of ideas, among others].
[S]imple precepts can have a strong intuitive appeal, and it is just that
kind of emotional force that may be most effective in reversing or containing
the dangerous attitude shifts that take place in pathological periods.
Id.
FN50.
Denver Area Educ. Telecomm. Consortium, Inc. v. Fed. Communications Comm'n,
116 S. Ct. 2374, 2401 (1996) (Souter, J., concurring).
FN51.
Shiffrin, supra note 35, at 2?3.
FN52.
Id. at 3.
FN53.
See Eric M. Freedman, A Lot More Comes Into Focus When You Remove the Lens
Cap: Why Proliferating New Communications Technologies Make It Particularly
Urgent for the Supreme Court to Abandon its Inside?Out Approach to Freedom
of Speech and Bring Obscenity, Fighting Words and Group Libel Within the
First Amendment, 81 Iowa L. Rev. 883, 885 (1996).
FN54.
Mutual Film Corp. v. Indus. Comm'n of Ohio, 236 U.S. 230, 244 (1915).
FN55.
Joseph Burstyn, Inc., 343 U.S. at 502.
FN56.
Id. at 503.
FN57.
499 U.S. 439 (1991).
FN58.
Id. at 457 (Marshall, J., dissenting).
FN59.
395 U.S. 367 (1969).
FN60.
Id. at 388.
FN61.
319 U.S. 190 (1943).
FN62.
438 U.S. 726 (1978).
FN63.
512 U.S. 622 (1994).
FN64.
116 S. Ct. 2374 (1996).
FN65.
492 U.S. 115 (1989).
FN66.
The Court's mistake in regulating electronic media has not been in recognizing
the First Amendment interests of viewers and the potential defects in the
marketplace of ideas; rather, it has been in grounding those timeless concerns
in the transient nature of the technologies involved. Early on, the Court
seized upon frequency scarcity as a justification for regulating the electronic
media in order to increase viewpoint diversity. The ensuing debate about
the regulation of new communications technologies has too often focused
on a comparison of technologies instead of on the underlying question of
how a regulatory regime can assure that First Amendment values??which involve
the interests of both speakers and listeners??can best be served. Note,
The Message in the Medium: The First Amendment on the Information Superhighway,
107 Harv. L. Rev. 1062, 1076?77 (1994).
FN67.
Nat'l Broad. Co., 319 U.S. at 226.
FN68.
Pool, supra note 15, at 136.
FN69.
Id. at 138.
FN70.
See Pacifica, 438 U.S. at 748; Pool, supra note 15, at 134.
FN71.
Pacifica, 438 U.S. at 751?55.
FN72.
See generally 142 Cong. Rec. H1145, H1175 (daily ed. Feb. 1, 1996) (comments
of Rep. Goodlatte).
FN73.
The ACLU, however, does not concede this point. During the ACLU v. Reno
trial, it introduced as a witness sex expert Dr. Slayton, who testified
that his five year old son had watched videos of oral sex without incurring
any harm.
Q
And these films that you've been talking about that do have the explicit
depictions of sexual activity, you believe that it would be??that it would
not be harmful to show those to minors, right?
A
No, right.
Q
And so you believe it would be appropriate to show those films??or would
not be harmful to show those films to a 12?year?old.
A
Right, or if a 12?year?old saw them. I don't think it would do harm.
Q
And it would be all right ??
A
I don't think I would take 12?year?olds to a show, in fact, it's against
the law. I wouldn't do it.
Q
But you think it would do no harm if they did see it?
A
Absolutely it wouldn't.
Q
And you think it would be appropriate for a 10?year?old to see those films?
A
Yeah. My five?year?old saw them, when he was five years old.
Cross
Examination of Dr. William R. Stayton By Ms. Russotto, ACLU v. Reno (No.
96?963?M) (United Stated District Court for the Eastern District of Pennsylvania
March 21, 1996). Also available at:
<http://www.aclu.org/issues/cyber/trial/trial.htm>.
FN74.
See, e.g., Judges 19:22, 29. For a collection of violent and sexual excerpts
from the Bible, see, Tanith Tyrr, The Indecent Bible (visited June 12,
1997) Also available at: <http://www.spectacle.org/ cda/bible.html>.
FN75.
Pool, supra note 16, at 100?01.
FN76.
492 U.S. at 118 ("reverse blocking" involves providing access to a service
only if a customer requests it, typically in writing).
FN77.
However, note the argument of Congressman Goodlatte (R. Va.) in support
of the CDA, on the day that it cleared Congress in its final version:
Some
have even claimed that an indecency standard will keep great literary works
such as "Catcher in the Rye" off the Internet. I strongly disagree....
The context of the material cannot be disregarded when making a determination
of indecency. Therefore, 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.
at 1175.
FN78.
Turner, 512 U.S. at 666.
FN79.
See Pool, supra note 15, at 160?66.
FN80.
512 U.S. at 666 (1994).
FN81.
Id. at 639.
FN82.
116 S. Ct. 2374 (1996).
FN83.
Id. at 2380. Cable providers are required to set aside a certain number
of channels to lease to other content providers.
FN84.
Id. at 2381.
FN85.
Id. at 2380. Most municipalities, in granting cable franchises, require
providers to set aside one or more channels for noncommercial programming
provided by nonprofit and individual members of the public.
FN86.
Id. at 2384.
FN87.
Denver, 116 S. Ct. at 2385.
FN88.
Id. at 2398. Prior to the passage of the Cable Television Consumer Protection
and Competition Act, cable providers had no obligation to lease channels
to other content distributors.
FN89.
Id. at 2401 (Souter, J., concurring).
FN90.
Id. at 2402.
FN91.
Id.
FN92.
Denver, 116 S. Ct. at 2402.
FN93.
249 U.S. 47, 51 (1919).
FN94.
395 U.S. 444, 449 (1969).
FN95.
Denver, 116 S. Ct. at 2402.
FN96.
Id. at 2404 (Kennedy, J., concurring, dissenting in part).
FN97.
Id.
FN98.
Id. at 2406.
FN99.
Id. at 2407.
FN100.
Denver, 116 S. Ct. at 2407.
FN101.
418 U.S. 241 (1974).
FN102.
Id. at 247.
FN103.
Id. at 252. See also Lee C. Bollinger, Images of a Free Press 94?95 (1991).
Bollinger, playing devil's advocate, argues that newspapers may not be
more restricted than broadcast stations, as a community usually has one
newspaper but several radio and television stations, and there are roughly
1,700 daily newspapers in the country and 13,000 broadcast stations. Becoming
very devilish indeed, he concludes that "it is reasonably arguable that
broadcast regulation may well be the relevant analogy for print." Id. at
95. See also 142 Cong. Rec. at 1175.
FN104.
47 U.S.C. §§ 230, 560?561 (1997).
FN105.
Communications Act of 1934, 47 U.S.C. § 151 (1994).
FN106.
See generally 47 C.F.R. §§ 73.4170, 76.701 (1997).
FN107.
Marshall McLuhan, The Global Village: Transformations in World Life and
Media in the 21st Century (1989).
FN108.
Marshall McLuhan, Understanding Media 248?49 (1995).
FN109.
Id. at 302.
FN110.
William J. Mitchell, City of Bits (1995).
FN111.
Id. at 24.
FN112.
Howard Rheingold, The Virtual Community (1993).
FN113.
Id. at 24.
FN114.
Allucquere Rosanne Stone, The War of Desire and Technology at the Close
of the Mechanical Age 166 (1995).
FN115.
Sherry Turkle, Life on the Screen 26 (1995).
FN116.
Cardozo, supra note 8, at 63?64.
FN117.
Id. at 108.
FN118.
Testimony of Donna Hoffman in Hearing Before the Honorable Delores K. Sloviter,
ACLU v. Reno (No. 96?963?M) (United States District Court for the Eastern
District of Pennsylvania, March 22, 1996) also available at <http://
205.177.10.31/ciec/transcripts/Mar_22_Hoffman.html> (visited Jun. 5, 1997).
For an index of articles by Donna Hoffman, see <http:// www2000.ogsm.vanderbilt.edu>.
FN119.
ACLU v. Reno, 929 F. Supp. 824, 846 (ED. Pa 1996).
FN120.
Id. (the findings of fact were based on mutual stipulations agreed upon
during pretrial meetings between the ACLU, the Government, and Judge Dalzell).
FN121.
See generally Lance Rose, Netlaw (1995).
FN122.
Id. at 27.
FN123.
As discussed infra, the language of the CDA is borrowed from broadcast
regulations.
FN124.
141 Cong. Rec. S8310, S8333 (daily ed. June 14, 1995) (comments of Sen.
Coats).
FN125.
776 F. Supp. 135, 137 (S.D.N.Y. 1991).
FN126.
Id. at 139 (Computer bulletin board system is analogous to a library or
bookstore and is thus not liable for defamatory material it had no notice
it possessed). See also Stratton Oakmont, Inc. v. Prodigy Services Co.,
1995 WL 323710 (N.Y. Sup. Ct. 1995).
In
Stratton, Judge Ain rejected Prodigy's reliance on Cubby by denying Prodigy's
motion for summary judgment because he considered Prodigy more of a publisher
than a bookstore or library due to Prodigy "[holding] itself out to the
public and its members as controlling the content of its computer bulletin
boards." Stratton, 1995 WL at *4.
Judge
Ain explained that what led him to distinguish Cubby were statements by
Prodigy such as:
[w]e
make no apology for pursuing a value system that reflects the culture of
the millions of American families we aspire to serve. Certainly no responsible
newspaper does less when it chooses the type of advertising it publishes,
the letters it prints, the degree of nudity and unsupported gossip its
editors tolerate.
Stratton,
1995 WL at *2. Nevertheless, both courts agree with the underlying premise
of this article, that on?line services are more analogous to a printing
press, a bookstore, or a library than any other communications medium.
FN127.
Cubby, 776 F. Supp. at 140. In reaching this conclusion, the court relied
heavily on Smith v. California, 361 U.S. 147, 152?53 (1959), which held
that a bookstore owner could not be held liable for the contents of an
obscene book of which he was not personally aware.
FN128.
1995 WL 323710 (N.Y. Sup. Ct. 1995).
FN129.
Stratton, 1995 WL at *4.
FN130.
Id.
FN131.
See also It's In The Cards, Inc., v. Fuschetto, 535 N.W.2d 11 (Wis. Ct.
App. 1995) (holding that 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 ...").
FN132.
Denver, 116 S. Ct. at 2421 (Thomas, J., concurring in part, dissenting
in part) ("In Turner, 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
book store 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.").
FN133.
See supra note 2 and accompanying text.
FN134.
ACLU v. Reno, 929 F. Supp. at 851.
FN135.
Id. at 857.
FN136.
Id. at 872.
FN137.
Id. See also Shea v. Reno, 930 F. Supp. 916, 922 (S.D.N.Y. 1996) ("We are
encountering a communications medium unlike any we have ever known.").
FN138.
ACLU v. Reno, 929 F. Supp. at 873. Judge Dalzell's amazingly articulate
analysis deserves repeating.
Nearly
fifty years ago, Justice Jackson recognized that '[t]he moving picture
screen, the radio, the newspaper, the handbill, the sound truck and the
street corner orator have differing natures, values, abuses and dangers.
Each ... is a law unto itself." ' Id. (quoting Kovacs v. Cooper, 336 U.S.
77, 97 (1949) (Jackson, J., concurring)). The Supreme Court has expressed
this sentiment time and again since that date, and differential treatment
of the mass media has become established First Amendment doctrine. See,
e.g., Turner 114 S. Ct. at 2456 ("It is true that our cases have permitted
more intrusive regulation of broadcast speakers than of speakers in other
media"); City of Los Angeles v. Preferred Communications, Inc., 476 U.S.
488, 496 (1986) (Blackmun, J., concurring) ("Different communications media
are treated differently for First Amendment purposes."); Metromedia, Inc.
v. City of San Diego, 453 U.S. 490, 500 (1981) ("This Court has often faced
the problem of applying the broad principles of the First Amendment to
unique forums of expression"); Pacifica, 438 U.S. at 748 ("We have long
recognized that each medium of expression presents special First Amendment
problems").
Thus,
the Supreme Court has established different rules for print, Tornillo,
418 U.S. at 258, broadcast radio and television, Red Lion, 395 U.S. at
400?01, cable television, Turner, 114 S. Ct. at 2456?57, and even billboards,
Metromedia, 453 U.S. at 501, and drive?in movie theaters, Erznoznik v.
City of Jacksonville, 422 U.S. 205, 217?18 (1975). This 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. In print media, for example, the proper fit generally
forbids governmental regulation of content, however minimal. See Tornillo,
418 U.S. at 258. In other media (billboards, for example) the proper fit
may allow for some regulation of both content and of the underlying technology
(such as it is) of the communication. See, e.g., Metromedia, 453 U.S. at502.
Radio and television broadcasting present the most expansive approach to
medium?specific regulation of mass communication. As a result of the scarcity
of band widths on the electromagnetic spectrum, the Government holds broad
authority both to parcel out the frequencies and to prohibit others from
speaking on the same frequency.
FN139.
ACLU v. Reno, 929 F. Supp. at 877.
FN140.
Id. at 878.
FN141.
Id. at 878?79
FN142.
Id. at 882.
FN143.
Id. at 881 (quoting Tornillo, 418 U.S. at 259?60).
FN144.
ACLU v. Reno, 929 F. Supp. at 882.
FN145.
Id. at 883. Dalzell further states:
True
it is that many find some of the speech on the Internet to be offensive,
and amid the din of cyberspace many hear discordant voices that they regardas
indecent. The absence of governmental regulation of Internet content has
unquestionably produced a kind of chaos, but as one of plaintiffs' experts
put it with such resonance at the hearing: "What achieved success was the
very chaos that the Internet is. The strength of the Internet is that chaos."
Just as the strength of the Internet is chaos, so the strength of our liberty
depends upon the chaos and cacophony of the unfettered speech the First
Amendment protects. For these
reasons, I without hesitation hold that the
CDA is unconstitutional on its face.
Id.
(quoting Testimony of March 22, 1996, at 167).
FN146.
The latter is much like the concept of the "liberty trees" or "town hall"
meetings of colonial America, where individual free thinkers conceived
ideas and philosophies, set them to paper and then met to distribute, discuss
and debate them with each other. In fact, the town meeting, coupled with
the rapid growth of the printing press produced the very seed which spawned
this country, our Constitution, and most importantly, the First Amendment.
Again
following Boston's lead, virtually every town that conducted protests against
the Stamp Act dedicated a Liberty Tree. Over the years most pre? Revolutionary
events gravitated to the tree: ritualized stampmaster resignations, repeal
celebrations, commemorations of August 14, celebrations of Wilke's election
to Parliament, later protests against customs duties and the Tea Act, intimidation
of loyalists, and the ushering in of independence. The trees were pruned,
fitted out with commemorative plaques, and decorated with lanterns and
flags. The pruning was to bring the number of branches to match such popularly
celebrated totals as the ninety?two who voted against the governor (in
support of the legislature's right to circulate a petition to other colonies).
To signal meetings of the Sons of Liberty "they erected a flagstaff, which
went through the tree, and a good deal above the top of the tree." In New
York City and elsewhere Liberty Poles were erected for similar purposes
and with similar ceremony. British soldiers and loyalists responded to
the symbolism of the trees and poles by cutting them down. New York's largest
riot, in 1770, erupted as the result of repeated attacks by British soldiers
on the Liberty Pole.
Peter
Shaw, American Patriots and the Rituals of Revolution 182 n.12 and 14 (1981)
(emphasis added). Indeed, these trees were usually tacked with signs, advertisements,
political doctrines, messages, etc. Pamphlets printed by hand and by printing
press, such as The Federalist Papers, Common Sense and the Declaration
of Independence were now able to be distributed en masse.
FN147.
U.S. Const. amend. I.
FN148.
Thomas, 323 U.S. at 530. See also De Jonge v. State of Oregon, 299 U.S.
353, 364 (1937) ("The right of peaceable assembly is a right cognate to
those of free speech and free press and is equally fundamental.").
FN149.
Whitney v. People of State of California, 274 U.S. 357, 375 (1927) (Brandeis,
J., concurring).
FN150.
Adderly v. State of Florida, 385 U.S. 39, 48 (1966) (quoting U.S. Const.
amend. I).
FN151.
United Mine Workers of America, Dist. 12 v. Illinois State Bar Assoc.,
389 U.S. 217, 222 (1967).
FN152.
Associated Press v. Nat'l Labor Relations Bd., 301 U.S. 103, 135 (1937).
FN153.
ACLU v. Reno, 929 F. Supp. at 831.
FN154.
Id. at 843.
FN155.
Id. at 879.
FN156.
930 F. Supp. 916 (S.D.N.Y. 1996).
FN157.
Shea, 930 F. Supp. at 929?930.
FN158.
Denver, 116 S. Ct. at 2409 (Kennedy, J., concurring).
FN159.
Id. (citing Rosenberger v. Rector and Visitors of Univ. of Va., 115 S.
Ct. 2510, 2516?17 (1995) ("physical gathering places") and Cornelius v.
NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800 (1985) ("government
property")).
FN160.
Denver, 116 S. Ct. at 2412 (quoting Police Dept. of Chicago v. Mosley,
408 U.S. 92, 96 (1972)).
FN161.
Denver, 116 S. Ct. at 2414 (citing United States v. Kokinda, 497 U.S. 720,
737 (1990) (Kennedy, J., concurring in judgment)).
FN162.
Jonathan Wallace & Mark Mangan, Sex, Laws and Cyberspace 228 (1996).
FN163.
Solveig Bernstein, Cato Institute Policy Analysis No. 262: Beyond the Communications
Decency Act: Constitutional Lessons of the Internet 4 (1996).
FN164.
Id. at 6.
FN165.
It is not even clear that the CDA would have been held unconstitutional
under a town hall metaphor. But see United Mine Workers, 389 U.S. at 223.
The Court states:
[B]ut
the First Amendment does not protect speech and assembly only to the extent
it can be characterized as political. Great secular causes, with small
ones, are guarded. The grievances for redress of which the right of petition
was insured, and with it the right of assembly, are not solely religious
or political ones. And the rights of free speech and a free press are not
confined to any field of human interest.
Id.
FN166.
Laurence Tribe has said that the Constitution's norms, at their deepest
level, must be invariant under merely technological transformations. 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. As a result, he proposed a 27th
amendment to the Constitution:
This
Constitution's protections for the freedoms of speech, press, petition,
and assembly, and its protections against unreasonable searches and seizures
and the deprivation of life, liberty, or property without due process of
law, shall be construed as fully applicable without regard to the technological
method or medium through which information content is generated, stored,
altered, transmitted, or controlled.
Laurence
H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic
Frontier, Keynote Address at the First Conference on Computers, Freedom
and Privacy (Mar. 26, 1991). Also available at:
<http://www.cpsr.org/ftp/cpsr/conferences/cfp91/papers/tribe>
(visited June 5, 1997).