4.2.2.2 Legal protections and constraints
As described above, the Internet has a long tradition of encouraging the free exchange of information and ideas. This is not surprising since the original users of the Internet were primarily researchers, university faculty and graduate students. As long ago as the mid 1980’s, when the Internet was a small fraction of the size it is today, there were flourishing online communities devoted to subjects as diverse as particle physics, gay and lesbian issues, gardening, and Star Trek.
In the mid 1990’s the size and demographics of Internet changed dramatically with the introduction of graphical browsers and the World Wide Web. Today, the Internet must serve the needs of a wide cross-section of the public, from researchers to business professionals, from casual surfers to electronic commerce providers, from 12 year olds to seniors. The diverse nature of today’s Internet user community, which does include many children, has raised concern over the “hands off” policy governing freedom of expression on the Internet.
Since the mid 1990’s there have been a number of legislative attempts to place restrictions on permissible online speech.
The first such attempt was the 1996 Communications Decency Act (CDA), an amendment to the Telecommunications Act of 1996. The CDA briefly became law when President Clinton signed the Telecommunications Act, but was almost immediately challenged by the American Civil Liberties Union (ACLU). In June 1997, the United States Supreme Court, in Reno v. ACLU, ruled the Communications Decency Act to be unconstitutional because it violated First Amendment freedom of speech guarantees.
The CDA would have made it a crime to:
- send “obscene or indecent” material to anyone under the age of 18,
- display “obscene or indecent” material in a manner accessible to anyone under the age of 18, or
- allow a computer system under one’s control to be used to display or send such material.
While these provisions may seem quite reasonable, the CDA raised a firestorm of controversy on the Internet. Certainly, its stated goal of protecting children was laudable, but the Act was written in such a way that essentially all publicly available material of an adult nature (both text and images) would have become illegal on the Internet. Electronic copies of many books that sit on library shelves and works of art that are openly displayed in museums would have been banned. The only way writers, artists, and public citizens would have been allowed to publish material deemed “indecent” under the law, would have been to ensure that no one under 18 could possibly gain access to their work. Internet Service Providers that host customer web pages would have been in violation of the law if any of their customers’ web pages were in violation. Hence ISP’s would either have been forced to police the content of their customers’ pages or (more likely) have discontinued offering to host them.
Ironically, the Communications Decency Act would have had little, if any, effect on most “pornographic” web sites, since these sites generally require payment via credit card and the CDA would have explicitly recognized a verified credit card transaction as proof of adulthood.
The second major attempt to regulate online speech was the 1998 Child Online Protection Act – COPA. This law would have required web sites to collect “proof of age” before allowing users to view material deemed “harmful to minors”. For the purposes of this law, a valid credit card number would be considered proof of age. Unlike the 1996 CDA, the 1998 law provided protections from prosecution for ISPs (Internet Service Providers), telecommunications carriers, and search engine providers.
In February 1999, the federal district court in Philadelphia issued an injunction preventing the government from enforcing COPA. Later, the U.S. Third Circuit Court of Appeals found COPA to be unconstitutional. In their words, “Because of the peculiar geography-free nature of cyberspace, [COPA’s] community standards test would essentially require every web communication to abide by the most restrictive community’s standards.”
On appeal from the Department of Justice, the U.S. Supreme court ruled in May 2002 that COPA was not unconstitutional simply because it relied on “community standards”. However, rather than declaring the law constitutional, the Supreme Court sent the case back down to the Circuit Court level to determine whether the law might be unconstitutional on other grounds – such as being overly broad or unconstitutionally vague.
In March 2003, the U.S. Third Circuit Court of Appeals again found COPA to be unconstitutional – this time on the grounds that it was overly broad and would suppress protected speech adults have a right to engage in.
A third law that addresses online free speech issues is the Children’s Internet Protection Act (CIPA), passed by Congress in December 2000. CIPA requires schools and libraries that receive federal funding to install filtering software on their Internet terminals and PCs in order to block access to obscenity, child pornography, or material harmful to minors.
CIPA was originally ruled unconstitutional at the U.S. District and Circuit Court levels in May 2002. The opinion of those justices stated, in part, “Any public library that adheres to CIPA’s conditions will necessarily restrict patrons access to a substantial amount of protected speech in violation of the First Amendment.”
In June 2003, the U.S. Supreme Court reversed the lower court ruling and found the law to be constitutional. However, the opinions of the Justices make it clear that their decision that CIPA is Constitutional was based, to a large degree, on the Government’s assurance that adult library patrons may (1) ask a librarian to remove the block on any particular web site, and (2) request a librarian to completely disable the blocking lifter on all sites. Librarians must honor these requests, without requiring adult library patrons to explain why they desire access to particular sites.
While the federal courts appear to be siding with free speech advocates, the question of whose community standards should apply when judging whether speech is protected or not is still an open question – especially in light of the May 2002 U.S. Supreme Court COPA ruling.
Some people have called for the establishment of “national community standards” in order to prevent online discourse from being limited to the level of what would be acceptable in only the most conservative communities. Advocates of this approach point to the following case. In July of 1994, a California-based company that ran a computer bulletin board, known as Amateur Action, was convicted by a United States Federal District Court in Western Tennessee for the interstate distribution of obscene materials. The definition of “obscene” that was used in the case was based on the local community standards in effect in Tennessee (where a subscriber was located) rather than California (where the company’s computer system was located). The United States Sixth Circuit Court of Appeals upheld the Tennessee decision in January 1996.[7]
By 2003, a growing number of individual states had passed laws aimed at restricting online communications based on their local standards. While the constitutionality of these laws has yet to be tested, if they are upheld, the local standards of the most socially conservative community touched by the Internet could potentially be allowed to dictate what is and is not legally permissible over the entire U.S. portion of the Internet.
Footnotes
[7] The ruling is available on the web at http://www.epic.org/free_speech/censorship/us_v_thomas.html