This summer was marked by the momentous decision ACLU v. Reno, 929 F. Supp. 824 (E.D. PA June 11, 1996) (hereinafter Decision) in which a three-judge panel decision from the Eastern District of Pennsylvania enjoined enforcement of the Communications Decency Act (CDA). The CDA was passed as part of the Telecommunications Act of 1996. It sought to prevent access by minors to cyberporn by criminalizing indecency on the Internet. Although the Philadelphia Court issued a strong and unanimous decision, the Department of Justice (DOJ) has filed an appeal with the Supreme Court.
The CDA faltered from the first day. DOJ refused to defend the Hyde Amendment, which prohibited discussions of abortion on the Internet. After the Act was two weeks old, the Philadelphia Court issued a temporary restraining order enjoining enforcement of section 223(a)(1)(B) which prohibited the transmission of indecency over telecommunications devices other than interactive computer networks. Next, DOJ agreed not to enforce the CDA during the pendency of the trial. Finally, on June 11, the Court unanimously enjoined enforcement of the CDA.
Plaintiffs noted that Congress had failed, in its deliberation of the CDA, to conduct hearings or other fact findings to examine the nature of the medium they sought to regulate. The Court filled that void. The Court found that the Internet "is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks." Decision at 830, para. 1. It is "a decentralized, global medium of communications or "cyberspace" that links people, institutions, corporations, and governments around the world." Decision at 831, para. 4. "The network was designed to be a decentralized, self maintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route communications if one or more individual links were damaged or otherwise unavailable." Decision at 831, para. 6. "The Internet uses 'packet switching' communication protocols." Decision at 832, para. 9. Finally, "[n]o single entity academic, corporate, governmental, or non-profit administers the Internet" and "[t]here is no centralized storage location, control point, or communications channel for the Internet" by which the Internet can be controlled. Decision at 832, para. 11.
In their legal opinions, while all three Judges agreed that the CDA was facially unconstitutional, they gave varying explanations about why the CDA failed the strict scrutiny analysis given this content based regulation. SeeDecision at 857, § G (J. Sloviter, holding that CDA violates First and Fifth Amendments); 858, § B (J. Buckwalter, holding that CDA violates First and Fifth Amendments, but that permissible regulation of speech on Internet is conceivable); & 867, § A (J. Dalzell, holding that CDA violates, and any regulation of protected speech on Internet would violate, First Amendment).
The first major issue was the vagueness of the CDA. Congress was aware of the vulnerability of the term "indecency" to a vagueness challenge. Therefore, the Conference Committee attempted to fortify the CDA from attack by inserting the definition of indecency from Pacifica into the statute. Thus, the CDA provided that it shall be illegal to use an interactive computer service to display material which
in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs . . .
47 U.S.C. § 223(d)(1)(B). The Court was unimpressed by this maneuver. Chief Judge Sloviter and Judge Dalzell found that the term "indecency" and its definition were interchangeable and synonymous. Decision at 850 (J. Sloviter); 868, § B (J. Dalzell). Although Judge Buckwalter concluded that if Congress had meant the terms to be synonymous, Congress would have used the same terms, he nevertheless found little useful distinction that could rescue the terms from a vagueness challenge. Decision at 862, § B.
Judge Buckwalter, with Chief Judge Sloviter concurring, Decision at 856, § F, concluded that the term "indecency" and the definition for indecency are unconstitutionally vague. Judge Buckwalter noted that the definition of indecency from Pacifica and Sable were made "by reference to contemporary community standards for that particular medium." Decision at 862, § B. He found that Congress has made no effort to conform the definition of indecency to the medium of Cyberspace as required. Absent an explanation of how indecency is to be applied in Cyberspace, one is left to grasp at such questions as which community standards are to be applied for the indecency analysis. See also Decision at 852-53, § D (J. Sloviter). Judge Buckwalter mused that even the DOJ attorneys appearing before the Philadelphia Court were "unable to define 'indecency' with specificity." The Defendant's brief contradicted the Defendant's expert witnesses concerning whether George Carlin's Seven Dirty Words monologue would be offensive. Decision at 864, § B. Defendant's Counsel were unable to determine whether a series of examples before the Court could be considered "indecent" under the CDA. Decision at 864, § B. Lacking assurance of the standards that would be applied, speakers attempting to avoid prosecution would have required to steer wide of the unlawful zone. Decision at 860, § B (J. Buckwalter). This would unacceptably chill speech.
Judge Dalzell, however, did not agree that the term "indecency" was unconstitutionally vague. Decision at 868, § B. Noting recent cases that grappled with the issue without declaring the term unconstitutional, Judge Dalzell observed that "since the definition of indecency arose from the Supreme Court itself in Pacifica, we may fairly imply that the Court did not believe its own interpretation to" suffer from vagueness. Decision at 869, § B.
Judge Dalzell directed his opinion away from "vagueness" and toward a medium-specific analysis. Acknowledging that previous decisions of the Supreme Court permitted content regulation of otherwise protected indecent speech, Judge Dalzell noted that those decisions clearly rested on the nature of the medium in question. The Pacifica holding relied on the scarcity of the spectrum unique to broadcasting. Decision at 876, § D.2. The decision in Sable was "addressed [to] only one particular type of communication (dial-a-porn)" and otherwise stood for the proposition that the unique attributes of each medium must be accounted for. Decision at 877, § D.2. Furthermore, Judge Dalzell pointed out that the courts have repeatedly discouraged the extension Pacifica to other media, indicating that the holding was "emphatically narrow." Decision at 875, § D.2.
In light of the unique characteristics of the Internet, Judge Dalzell concluded that "Congress may not regulate indecency on the Internet at all." Decision at 877, § D.3. Of the abundant facts found by the Court, the four unique features of the Internet that stood out to Judge Dalzell are:
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.
Decision at 877, § D.3. This emerging medium is different than previous means of communications that have substantial entrance barriers and which are dominated by the few, the wealthy, and the powerful. Decision at 880, § D.4. Judge Dalzell concluded that the CDA would create an unacceptable chill on this nirvana of free speech and democracy. So close to the heart of our concept of participatory democracy is the Internet that, to take such a step as the CDA in the name of stopping some speech that may offend some people would be "to burn the global village to roast the pig." Decision at 882, § D.4.
The unique nature of the Internet also was key to the decisions of the other Judges. The Court noted that the Internet creates an environment where, on the one hand, speakers have little control over to whom their messages are transmitted, and users, on the other, have strong control over what information they access and to whom they choose to listen. SeeDecision at 859, § A (J. Buckwalter); 869, § B (J. Dalzell) (noting lack of safe harbors in which one could speak without impermissibly speaking to minors). When a speaker posts a message on a USENET bulletin board, in an IRC chat room, or on a World Wide Web page, users from all over the world can freely access that message. The speaker cannot control that access and will not necessarily even know who it is that is accessing the information. Decision at 854, § E (J. Sloviter). As a result, under the CDA, speakers risk prosecution unless their speech conforms to the community standards of the most conservative and restrictive community on the Internet. Decision at 855, § E (J. Sloviter).
The user, on the other hand, chooses what information to access. If a user desires information on a particular subject, the user must search for that information. Users are not passive recipients, as are viewers of TV broadcasts, and are unlikely to accidentally access offensive information. Decision at 852, § C (J. Sloviter). Furthermore, the Court noted the software programs the plaintiffs demonstrated which permit users to filter out undesirable information for themselves or their children.
As a result of the unique nature of the medium and the inability of the speaker to prevent transmissions to minors, the Court concluded that the CDA reaches protected speech. Judge Sloviter therefore held that the CDA is unconstitutional as overbroad. Decision at 855, § E (J. Sloviter).
Finally, Chief Judge Sloviter and Judge Buckwalter both noted with concern DOJ's argument that the Court should simply trust the government to enforce the CDA constitutionally. Judge Buckwalter stated that "[s]uch unfettered discretion to prosecutors, however, is precisely what due process does not allow." Decision at 864, § B. Chief Judge Sloviter declared that "the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors." Decision at 857, § G. He noted that the government's argument "would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene." Decision at 857, § G.
In conclusion, the Philadelphia Court recognized what Congress did not, the tremendous value of the Internet in our new democracy. Judge Dalzell concluded his opinion by stating,
It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country and indeed the world has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern- day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fisherman . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.
Id. at 881-83.
