1996 is an election year. If you're an elected official or an official wanna-be, it's an arduous task to adhere to Spike Lee's admonition and Do The Right Thing. Vote for abortion? Lose the Christian Coalition vote. Vote for minimum wage? Lose the free-marketers' vote. Vote to prohibit online pornography? Now there's a political pollster's paradise.
Congress and Clinton easily passed the Communications Decency Act (CDA) in February 1996 and championed it as the cure-all for concerns about children's access to adult online materials. Forget Whitewater and the Balanced Budget blunders. The CDA enabled everyone to campaign as crusaders of family values and appear on Larry King Live looking kindly and avuncular. Clinton, a graduate of Yale Law School, and the legion of lawyers who composed the CDA, should have known better. As any attorney who passed Constitutional Law 101 knows, the challenged clauses of the CDA may be James Carville-concepts but they aren't constitutional.
On June 11th, three federal judges in the City of Brotherly Love agreed.
Down Here on Earth
The three-judge panel published a nearly two hundred page tome to smite the challenged clauses of the CDA. Epic opinions such as this one are frequently full of ivory tower decrees and intricate historical analyses. The Greek poet Homer's writings seem simple compared to most federal judges' tortured decisions. These judges have their heads and feet down here on terra firma.
For example, the first 48 paragraphs of the opinion discuss the development and creation of cyberspace, or what the court calls "the exponentially growing, worldwide medium that is the Internet." When discussing parental control options, the court provides a product review, including street and subscription prices and platform compatibility.
When surveying content, from HotWired to America Online chat rooms to Formula 1 racing car newsgroups, the court says, "It is no exaggeration to conclude that the content on the Internet is as diverse as human thought."
But the court's understanding of the realities of real-life and the Internet are most evident when dismissing the Government's proffered defenses. The Government alleged the CDA passed constitutional muster because of its safe harbor defenses, codified at 47 U.S.C.section 223(e).
These defenses protect online and Internet service providers and anyone who has taken, "in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to [forbidden] communications." The Government cited use of a verified credit card, adult access code, or adult personal identification number as examples of appropriate actions.
The court countered, "verification of a credit card number over the Internet is not now technically possible." Even if it were operational, the court said it would be economically and practically unavailable for many Internet content providers, such as the non-commercial Critical Path AIDS Project, and Internet users, such as adults without credit cards.
The court also rejected adult codes or personal identification numbers as cost prohibitive for non-commercial content providers. As the court said, "The Government offered no evidence that this is a reliable way to ensure . . . participants . . . can be screened for age. The Government presented no evidence demonstrating the feasibility of its suggestion that chat rooms, newsgroups . . . that contain material deemed indecent could be effectively segregated to 'adult' or 'moderated' areas of cyberspace."
The court stated that for Internet users who seek access to sensitive information, such as users of Stop Prisoner Rape and Queer Resources Directory, anonymity is important. Adult codes would not protect this anonymity. Finally, the Government suggested content providers review then "tag" their indecent material. The court dismissed tagging as cost prohibitive for providers like Critical Path and the Carnegie Library who cannot afford to pay a large staff to review all of their material.
The Legal Standard
After rejecting the Government's defenses as pie-in-the-sky, the Court set forth the legal standard. "The CDA is patently a government-imposed content-based restriction on speech," said the court. "As such, [it] is subject to strict scrutiny and will only be upheld if it is justified by a compelling government interest and if it is narrowly tailored to effectuate that interest," the court added.
The court ruled the Government's interest wasn't compelling because the CDA overreached into protected speech. The court said, for example, the CDA would prohibit material like the Broadway play Angels in America, which some "less cosmopolitan communities" might find unacceptable, but which garnered a Pulitzer prize.
The court discussed that some indecent material, prohibited by the CDA, could be life-saving. AIDS material for minors and female genital mutilation practices are "of obvious interest and relevance to older teenage girls," said the court. These three jurists deserve a prize for comprehending the intricacies of life in 1996 for both societal haves and societal have-nots.
The court summarily stated that the CDA wasn't narrowly tailored because it reached protected materials and "no provider . . . is likely to willingly subject itself to prosecution for a miscalculation of the prevalent community standards or an error in judgment as to what is indecent."
Judge Buckwalter, in his concurring opinion, said that even Government's counsel couldn't define "indecency." Buckwalter said the Justice Department attorney couldn't respond to numerous questions from the court regarding whether, for example, Angels in America would be considered indecent under the CDA. The Government then argued that it should be trusted not to prosecute works of "serious literary or artistic merit."
The court tartly replied, "That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene." Or, as the court summarized its argument in a sound bite, "Prosecutors come and go."
Finally, the Government attempted to justify the CDA based upon the Supreme Court's differing treatment of other mass communication media. The Supreme Court has permitted regulation of print, radio, broadcast and cable television, even content-based regulation. The Supreme Court has abrogated some of its regulating authority to governmental agencies like the Federal Communications Commission. The court found the Internet unlike any of these other forms of communication.
"The Internet is therefore a unique and wholly new medium of worldwide human communication," said the court. Broadcast television is "uniquely accessible to children, even those too young to read," said concurring Judge Dalzell. However, "communications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident,'" the court said. Unlike other forms of regulated mass media, "An Internet user must act affirmatively and deliberately to retrieve specific information online . . . [t]herefore, It's highly unlikely that a very young child will be randomly 'surfing' the Web and come across 'indecent' or 'patently offensive' material."
Even the Government's witness testified that "the odds are 'slim' that a user would come across a sexually explicit site by accident." As Judge Dalzell added in his concurrence, "The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks."
The Power of Every Man
Perhaps most important of all is Judge Dalzell's concurring reason for ruling that Congress may not regulate the Internet at all. Dalzell says the Internet is the" most participatory form of mass speech ever developed." If it were CDA-regulated, he says, the Internet ultimately would come to mirror broadcasting "where economic power has become relatively coterminous with influence."
In this era where "most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners," he says. The Internet, he adds, "confers to ordinary people as well as media magnates" the same degree of speech power. In an era where media magnates can often bend the justice system to their will, we should all applaud the judges who protect the Internet as the last bastion of power of every man.
Sidebar A: The Challenged Clauses of the CDA
The ACLU challenged the CDA clauses codified at 47 U.S.C. section 223(a)(1)(B) and 223(d):
- 223(a)(1)(B): Anyone who "in interstate or foreign communications by means of a telecommunications device, knowingly makes, creates, or solicits, and initiates the transmission of any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication," "shall be criminally fined or imprisoned."
- 223(d): It is a crime to use an "interactive computer service to send to a specific person or persons under the age of 18 years of age, or uses any interactive computer service to display in a manner available to a person under age 18, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user or such service placed the call or initiated the communication.
The ACLU also challenged the provisions of Sections 223(a)(2) and 223(d)(2) which made it a crime for anyone to "knowingly permit any telecommunications facility under his control to be used for any activity prohibited" in Sections 223(a)(1)(B) and 223(d)(1). The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both for each offense.
Sidebar B: A Bit of Background
The Clinton Administration penned the Communications Decency Act (CDA), Title V of the Telecommunications Act of 1996, into law on February 8th, 1996. The American Civil Liberties Union (ACLU) filed suit that day in the United States District Court, centered in Philadelphia, Pennsylvania, against Janet Reno, Attorney General of the United States.
The ACLU claimed the CDA was unconstitutional and petitioned the court for a temporary restraining order (TRO) to enjoin enforcement of the CDA. Judge Ronald Buckwalter granted the ACLU's TRO on February 15th. He ruled the "indecency" provision of the CDA was unconstitutionally vague.
On February 15th, Judge Dolores Sloviter, upon request by the ACLU and the Attorney General, convened a three-judge court, including Judge Buckwalter. The parties stipulated, on February 26th, that Reno would not investigate or initiate prosecutions of violations of the CDA until the court had heard and decided the ACLU's motion for a preliminary injunction.
Other interested individuals (e.g., Brock Meeks, Declan McCullagh, John Troyer) and organizations (e.g., America Online, Inc., Apple Computer, Inc., Wired) filed suit against both Reno and the U.S. Department of Justice. The court consolidated these cases into one action, designated the ACLU versus the Government. The court received extensive evidence in late March and early April and heard final oral arguments on May 10th. On June 11th, the court filed the opinion described in this feature.
Sidebar C: Concessions
Before oral arguments on May 10th, both parties conceded certain sections of the CDA to the other side. The Government acknowledged the abortion provision of the CDA (amending 14 U.S.C.section 1462(c)) was unenforceable. This section would have criminalized the sending and receiving of information over the Internet by any means regarding "where, how, or of whom, or by what means any [drug, medicine, article, or thing designed, adapted, or intended for producing abortion] may be obtained or made." Score minus 1 for Ralph Reed and his merry band of morality mavens.
The ACLU acquiesced to the obscenity and child pornography portions of the CDA. Other statutes, enacted prior to the CDA's adoption, had already outlawed obscenity and child pornography. For example, 18 U.S.C. section 1464-65 criminalized obscene material and 18 U.S.C. section 2251-2252 criminalized child pornography.. The court stated that "When the CDA was under consideration by Congress, the Justice Department itself communicated its view that it [the CDA] was not necessary because it was prosecuting online obscenity, child pornography, and child solicitation under existing laws, and would continue to do so." The legislators who wrote the CDA, many of whom are attorneys, may have gotten massive media play from these provisions, but they're unnecessary and redundant. Score plus 2 for lawyers who take credit for another's craft.