Twenty years ago today the Supreme Court issued a landmark decision and unanimously overturned congressional legislation that made it unlawful to transmit “indecent” material on the Internet if that content could be viewed by minors. The justices ruled that the same censorship standards being applied to broadcast radio and television could not be applied to the Internet.
“The record demonstrates that the growth of the Internet has been and continues to be phenomenal,” the high court concluded. “As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.”
The Supreme Court had decided a challenge brought by the American Civil Liberties Union, which argued that the section of the Communications Decency Act (CDA) at issue could criminalize too broad a swath of speech.
The legal wrangling over the CDA happened when the commercial Internet was primitive compared to today. The ACLU says it didn’t even have a website when the CDA was signed into law in 1996. And the ACLU’s lawyers on the case had never even used the Internet, either.
In a bid to secure legal standing—which is the right to file a lawsuit—the ACLU built a website and posted what could be considered indecent content. The content was a 1978 decision by the Supreme Court that said comedian George Carlin’s now infamous “Seven words you can never say on television” monologue amounted to indecent speech. As part of the opinion, the Supreme Court included Carlin’s monologue and his seven “dirty” words that originally caught the ire of the Federal Communications Commission.
Humorous history
“We were afraid that was too cute, so we also held a contest, inviting people who came to our website to post guesses, before they read the opinion, [about] what the seven dirty words were. Not surprisingly we found that English has more than seven words that some might consider indecent, and all of those words appeared on our website. The government never seriously challenged our standing,” says Chris Hansen, who was the ACLU’s lead attorney in the litigation against the CDA.
The ACLU manufactured standing, Hansen said in a published interview commemorating the case, because “We were seriously afraid that the broadcast TV model would be applied to the Internet because it, like television, comes into the house on a screen in a box, and you don’t always know what you will see when you click.”
To celebrate the 20-year anniversary of Reno v. American Civil Liberties Union, the ACLU released a Q&A with Hansen, who spoke glowingly about the litigation. He said that, as the lawsuit took its course, federal judges and justices on the Supreme Court were introduced to the Internet.
When we decided to bring the case, none of us had been online, and the ACLU did not have a website. We flew down to Washington so that someone we knew could show us the Internet. When we litigated the case in Philadelphia, we used a phone line to set up the Internet in the courtroom and show the judges what a website looked like. We made an effort to show them websites we thought they would find interesting. We also showed them chat rooms and bulletin boards and the WELL, an early social media site. I’m told that when we argued the case in the Supreme Court, only one of the justices had ever been online, and that several others were taken down to the court basement by their clerks and shown the Internet.
The CDA was signed into law by then-President Bill Clinton in 1996. A surviving provision of the CDA is still the law. It says that Internet service providers cannot be considered publishers of their users’ speech, and hence cannot be liable for what users say online.
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Blending the CDA with innovation and the DMCA has given us YouTube, social media, a platform for Joe Blow to blog from the basement, and everything on the Internet in between. The DMCA, while often criticized for being abused by intellectual property rights holders, immunizes ISPs in the US for being legally liable for the copyright infringement of their users. ISPs must remove content when provided a takedown notice or they can lose that immunity.
CDA under attack
Ever since the ACLU victory two decades ago, the CDA has been under attack. Most recently, the operators of the Web advertising portal Backpage.com were charged with criminal pimping allegations. The charges stemmed from users of the site posting what California prosecutors deemed were advertisements for child prostitution.
However, the Backpage operators prevailed over the charges—all because of the CDA. “By enacting the CDA, Congress struck a balance in favor of free speech by providing for both a foreclosure from prosecution and an affirmative defense at trial for those who are deemed an Internet service provider,” a California judge ruled when dismissing the charges in December.
Still, Dallas-based Backpage a month later announced it was shuttering its adult section, as Craigslist did a decade before, because of government pressure.
What’s more, last year a federal appeals court revised a lawsuit targeting a website for models because the website did not warn users that there were rapists reading the site in search of their next victim. The CDA, according to the 9th US Circuit Court of Appeals, did not immunize the website Modelmayhem.com from a suit brought by an aspiring model who said she was drugged, raped, and filmed by two men during a phony 2011 audition.
“Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet,” the San Francisco-based appeals court ruled.
The ACLU’s Hansen, meanwhile, suggests that there are even “greater censorship dangers” to the Internet than government censorship.
I think the greater censorship dangers today involve attempts by nongovernmental entities—such as Facebook, Twitter, Google, and other internet companies—to decide what speech is appropriate online, and those efforts largely are directed at hate speech. Facebook and other internet companies aren’t bound by the First Amendment, which only applies to the government. As the government increasingly pressures companies to remove online content, we’re creating a censorship system that applies to an enormous amount of communications that don’t enjoy constitutional protections.
For the history buffs out there, the Oyez Project has published the audiotape of the oral arguments being conducted in the CDA case that the ACLU has labeled the “Magna Carta of Cyberspace.” The Oyez Project has also posted the audiotape of the justices announcing their decision from the bench 20 years ago today.
Listing image by Matt Wade