The nineties were an interesting time for congressional law. An entirely new medium had grown from a secret military project into the behemoth we now call the internet, and it was in the middle of a fight for survival. Just like television and radio at their inception, there were many opinions about how current laws applied. Censorship came quickly to the forefront of these issues, spurred primarily by a bill called the Communications Decency Act (CDA). While the CDA was not to last, it incited a lawsuif that paved the road for internet rights. The majority of internet freedom cases are now decided based on the ruling in Reno V. ACLU, making it a pivotal piece of legal history.
There is a vicious legal circle associated with innovation; it seems that every time a new communications medium appears to be gaining popularity, it is wracked with lawsuits and fights over censorship. When the humble Arpanet evolved into the Internet (and, eventually, the World Wide Web), it was hailed as the future of information distribution. Its creators envisioned a digital utopia founded on free information exchange. Unfortunately, this was a case where a good idea got mugged by the facts.
Copyrighted material showed up on the internet almost instantly, along with vast amounts of pornography and vulgar material. Suddenly parents were demanding that laws be put in place to protect their children from this indecent material, similar to the laws regulating broadcast media. The internet was suffering through what was for television the first sign of success: public controversy.
The Communications Decency Act was drafted with none but the best intentions. The premise was simple: If passed, the CDA would make it illegal to transmit any vulgar or obscene material over public channels (read: Web pages, newsgroups, etc.) on the world wide web to any location where a minor could potentially view it. The bill was no different than others already applied to broadcast media like television and radio; why should things be different for the internet?
Of course, free speech advocates found this justification intolerable. They argued that the web was a unique form of communication, and that it could not be censored like a broadcast medium that had a limited number of federally-assigned frequencies available. Their main point was that the internet is infinite, and so there is no justification to censor offensive/obscene material, since it does not detract from (or leave less room for) the rest of the content available. Congress was not convinced, however, and the bill was passed by a resounding majority. Immediately after the bill was signed into law by President Clinton, the ACLU, along with library associations, on-line service providers, and civil liberties groups, filed suit.
The federal court had on their hands a case that would shape the future of digital communications. The primary issue in ACLU V. Reno was, in addition to questioning the constitutionality of the CDA, how the first amendment should be applied to the internet. After four months, the district court ruled in favor of the ACLU, saying that the internet was a unique medium and that the CDA's restriction of the first amendment was unnecessary to achieve the goal of protecting children from obscene material. It was also noted that the provisions of the law would prevent publication of literary works such as Catcher in the Rye on the internet, and that censorship like this had been previously ruled intolerable. The main point that the ruling hinged on was that while precedent upholds the rights of federal and state legislatures to create "adult zones," it does not make legal laws that also restrict adult access to the same material. The judges cited Butler V. Michigan, where it was ruled that creation of such laws would "reduce the adult population . . . to reading only what is fit for children."
This decision was rather controversial given the support that the CDA had in congress. Not everyone was upset, though. Senator Patrick Leahy, who led the opposition to the law in the Senate, was ecstatic about the decision and quick to defend the courts, noting that "the decision is NOT a victory for child pornography or indecent material--but instead a victory for the First Amendment." He also brought up a story about an Internet Service Provider banning users for violating the CDA when having a discussion in a chat room about preventing breast cancer. "Many members of Congress who voted in favor of the CDA have absolutely no idea of how the Internet works," he said. "Some of them think their computer is a TV on the fritz." Other congressmen expressed certainty that the ruling would be overturned by the Supreme Court, which was set to hear the appeal.
After examining the case, the Supreme Court determined in a 7-2 ruling that the lower court was correct in its decision. It was determined that unlike radio and television, there was no government, company, school, or anything else that centrally regulated the internet, and therefore moderation of the internet en masse was nearly impossible.
The main focus as far as precedent for the case was on legal "adult zones," already in use in establishments such as bars and adult stores. While many supporters of the CDA cited Ginsberg V. New York as relevant to the case, Justice O'Connor noted in her opinion that "The Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone ... since it denied access only to minors." Ginsberg was therefore irrelevant, since the sanctions imposed by the CDA would affect adult access to the material in question. The court decision stated that "gateway technology" that would effectively create an "adult zone" on the internet (presumably with the use of a password and age verification) was not available as of 1997, and therefore "the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech." This was found to be an unacceptable violation of the first amendment.
Reno V. ACLU was really the original precedent concerning free speech online; online speech advocates such as the Electronic Frontier Foundation tout it as one of the most resounding free speech cases ever to be heard by the courts. After the CDA was overturned, in 1998 congress has passed the Child Online Protection Act (COPA), which is commonly referred to as the CPA II. This law banned "commercial distribution" of illicit material on the internet, and was an attempt by congress to use subtle rewording to pass a law that would have the same basic effect as the CPA was intended to.
In 2002, after federal district and apellate courts deemed the COPA unconstitutional, it was sent to the Supreme Court. This time the justices were not as well-convinced, and remanded the decision back to the district court, saying that "COPA's reliance on community standards to identify ``material that is harmful to minors´´ does not by itself render the statute substantially overbroad for purposes of the First Amendment." It was decided that COPA was not to be acted on, pending further court rulings. In October 2003, the Supreme court granted a writ of certiorari on the case for a second time, the ruling having been upheld again by both lower courts. This ongoing battle serves to demonstrate the sensitivity of the free speech issue, and it is clear that nobody has won the battle yet.
The decision in Reno V. ACLU is likely to remain controversial for some time, at least until a reasonable amount of precedent is available to aid court decision-making. It is still unclear at this point how far freedom of speech can be extended online. The courts are blazing new trails in this area of law, and new technology that is constantly being added to the internet requires consideration. The internet is a more dynamic subject than most that the courts deal with, and landmark decisions that will change the internet (and quite possibly communication as we know it) have yet to be made.