Technology Law Column

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Published in the Chicago Daily Law Bulletin, July 10, 1997 at page 5.

Internet Speech Cases Cinch Broad Freedom.

Copyright 1997 by David Loundy

Several cases decided at the end of June have gone a long way toward protecting freedom of speech on the Internet.

Two groups of plaintiffs won victories against the "Communications Decency Act" (CDA) when their lawsuits to block the statute were affirmed by the U.S. Supreme Court. The American Civil Liberties Union, along with an assortment of other plaintiffs, also recently won victories in three additional cases involving laws which restrict speech on the Internet. Two of these cases merit a closer look.

The case of Reno v. American Civil Liberties Union, No. 96-511, (S.Ct. June, 26, 1997) (available on the Internet at, is the first Supreme Court decision to address computer-mediated communications, and, in no uncertain terms, the case affords the Internet broad First Amendment protection.

The second case, American Library Association v. Pataki, No. 97 Civ. 0222 (LAP) (S.D.N.Y., June 20, 1997) (available at, struck down a New York State attempt at regulating certain questionable content distributed over the Internet.

The Reno case invalidated two portions of the CDA, which was passed as part of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56. The CDA was an attempt to prevent "indecent" and "patently offensive" material from being accessed over the Internet by minors. The Court analyzed the provisions of the CDA which criminalize the knowing transmission of "obscene or indecent" messages to any recipient under 18 years of age (the "transmission" provision, 47 U.S.C. Section 223(a)(1)(B)), and the prohibition on knowingly sending or displaying to a person under 18 years of age any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" (the "display" provision, 47 U.S.C. Section 223(d).)

The Court began its analysis by distinguishing the Reno case from some of its past speech decisions. In Justice John Paul Stevens' majority opinion, he distinguished Ginsberg v. New York, 390 U.S. 629 (1968) (which involved selling material to minors that was obscene to them, but not to adults), by faulting the CDA for removing the ability of parents to choose what material is suitable for their minor children, unlike in the statute at issue in Ginsberg. The CDA also removes the Ginsberg element that material that is harmful to minors must be "utterly without redeeming social importance for minors" to be banned.

Furthermore, the CDA did not define "indecent" as used in Section 223(a) of the CDA, and material covered in Section 223(d) is not required to lack serious literary, artistic political or scientific value-- an element required in the Court's earlier Miller v. California, 413 U.S. 15 (1973), test for obscenity.

The Reno Court held that meeting only some of the elements of the Miller test may result in a regulation which is too broad in the content it restricts. This lack of value prong the Court found to be crucial to the definition of obscenity because it is not judged by community standards, and thus allows courts to set a "national floor" for socially redeeming value-- no matter how censorious a community may be some things will not be obscene if they meet this value prong.

The Court also distinguished Reno from FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (which upheld restrictions on radio broadcasts of indecent material during the daytime hours), by pointing out that radio broadcasting has traditionally been the most restricted medium for free speech, in part because of the scarcity of radio spectrum-- an issue that is not present with the Internet. Furthermore, regulation of radio broadcasting allows for indecent material to be broadcast at times of the day when minors are less likely to be listening. The CDA does not provide for any such "time of the day" restrictions. Also, broadcast transmission does not allow for the effective presentation of warnings as to the content of upcoming broadcasts, a shortcoming that generally does not apply to Internet-accessible material.

The Court next distinguished Reno from Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (which upheld a zoning ordinance aimed at keeping adult theaters out of residential neighborhoods). The government in Reno argued that the CDA acts as a sort of "cyberzoning," which allows questionable content to be restricted (an argument that Justice O'Connor and Chief Justice Rehnquist found attractive in their separate opinion). However, the Court distinguished this "cyberzoning" argument on the grounds that the CDA's prohibitions apply "broadly to the entire universe of cyberspace." Because the CDA is a content-based blanket restriction on speech, a "time, place, and manner" analysis is inappropriate. Furthermore, the restriction in Renton, unlike the CDA, was aimed not at speech itself, but the "secondary effects" of the speech-- such as crime and deteriorating property values.

In addition to finding the CDA's vagueness a fundamental fault, the Court also found its over-breadth unacceptable. While protecting children may be a worthy goal, the CDA poses too much of a restriction on adult speech. Because the Internet provides for no reasonable means to verify a user's age, or to determine when underage users may receive questionable speech, the CDA prohibits the speech altogether, based on a presumption that children may be able to access such speech. Furthermore, the amount of speech prohibited is far greater than that which the Court has ever upheld.

The CDA would ban certain Supreme Court decisions, for example, a parent e-mailing information on birth control to his or her 17 year-old at college.

The decision in Reno v. ACLU is not surprising. It is an important decision in that it establishes that the Internet is worthy of very strong First Amendment protection.

The American Library Association v. Pataki case is also useful in that it addresses similar issues. The U.S. District Court for the Southern District of New York analyzed the impact of Internet content regulations by asking whether they represent impermissible overreaching by one state into the regulatory affairs of other states, thus violating U.S. principles of federalism.

ALA v. Pataki involved 15 plaintiffs suing the State of New York over its recent legislation which, essentially, makes it a felony to knowingly make certain material which is harmful to minors available via "any computer communication system" (N.Y. Penal Law Section 235.21). The court pointed out, as did the Reno court, that speakers using the Internet have no way to know the composition of their audience-- which is necessary to comply with the New York Act. Furthermore, the court stated:

"The unique nature of the Internet highlights that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were being accessed. Typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet. The menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution, because that clause represented the framers' reaction to overreaching by the individual states that might jeopardize the growth of the nation-- and in particular, the national infrastructure of communications and trade-- as a whole."

The court's analysis, borrowing generously from Professor Dan Burk's article "Federalism in Cyberspace," 28 Conn. L. Rev. 1095 (1996) resulted in one of the best-reasoned jurisdiction cases decided in the area of Internet law to date. Judge Loretta A. Preska looked to the legislative history of the New York Penal Law to show that it was clearly intended to affect communications coming from outside of the state. More importantly, she also looked to the borderless nature of the Internet itself and the inability to pinpoint a message recipient's location.

Because of the way the Internet works, messages being sent from one Illinois resident to another Illinois resident may be routed in whole or in part through New York. In addition, by signing up for an e-mail discussion group, which has no New York members, there is no guarantee that a New Yorker will not join later without your knowledge.

In essence, the "New York Act, therefore, cannot be effectively limited to purely intrastate communications over the Internet because no such communications exist" and, thus, there is no way to clearly avoid liability under the statute. The court held that, because the Internet is used not only for communications but also as a conduit to distribute "digitized goods," it is clearly an "instrument of interstate commerce" as are railroads and highways.

The court then cited a series of U.S. Supreme Court cases for the argument that the New York legislation impermissibly regulates activities that occur wholly outside of that state and which, if every state tried to regulate in a similar fashion, may subject Internet users to conflicting state requirements. Such a statute violates the Commerce Clause's restriction that one state may not encroach upon the sovereignty of other states.

The court also found that the New York legislation violated the Commerce Clause because the Act is an invalid, indirect regulation of interstate commerce. The court held that the New York legislation places too great an impediment on interstate commerce to justify the minimal benefits it produces.

While its goal of protecting children from pedophiles is clearly worthwhile, the undesirable conduct is already illegal even without the New York legislation. In addition, the New York legislation is powerless against objectionable content that originates from outside of the United States. Additionally, the New York legislation will produce self-censorship of content which may not run afoul of the law, in part because the legislation's defenses cannot be reasonably complied with, as was determined in the context of similar defenses addressed in the Reno and Shea cases, both of which found the CDA unconstitutional.

Lastly, the court argued that the New York statute violates the commerce clause because some types of commerce, such as Internet traffic, can only reasonably be regulated at a national level. In fact, Judge Preska noted that it will likely require global cooperation to regulate the Internet. The court found particularly influential the fact that the New York Act relies on a "community standards" definition of what is harmful to minors, and which is therefore prohibited under the New York legislation. If every community may be reached on the Internet, the only solution is a national lowest-common-denominator standard of regulation-- which the Supreme Court has clearly refused to impose in the areas of obscenity and free speech.

These cases send strong messages to would-be regulators. Although some of the less-well reasoned Internet jurisdiction cases have upheld state regulation of content on the Internet, the ALA case holds that one state cannot burden some types of Internet content because of the Internet's multi-jurisdictional reach. Furthermore, some content cannot be regulated even at the national level because that content is legitimately protected by the U.S. Contitution, and because more than any other form of electronic communication, the Internet enjoys the broadest possible First Amendment protection.

Finally, these cases contain the message for regulators that the most objectionable Internet content is ALREADY ILLEGAL! Additional reactionary legislation is unnecessary.

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