 Government Regulation
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by Stephen T. Maher
From New Atlantis NOW
Volume 1, Number 2 (March, 1997).
These days it seems most people are against government regulation. One exception to this
is the apparent support for government regulation of Internet content. Until recently,
most Internet publishers have managed to avoid much content regulation. That changed last
year with the enactment of the Communications Decency Act (CDA). The purpose of the CDA
was to protect children from indecent and patently offensive material on the Internet. The
Congressional debate about the Act matched warnings about an unhealthy on-line environment
with warnings about an unhealthy level of governmental regulation of Internet content. Now
we’re witnessing the next stage of the battle over on-line content regulation: the
litigation of constitutional challenges to the Act.
Some of its most controversial provisions were challenged before a three-judge court in Philadelphia in the case of American Civil Liberties Union v. Reno. The case challenged the constitutionality of three sections of the statute, and a three-judge Federal court was convened to hear it. The plaintiffs challenged section 223(a)(1)(B), the indecency provision, which provides in part that any person in interstate or foreign communications who, "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," "shall be criminally fined or imprisoned." They also
" . . . the continued use of the Miller v. California standard can be seen as empowering the most conservative communities to set Internet obscenity standards for everyone else."
challenged section 223(d)(1), the patently offensive provision, which makes it a crime to use an "interactive computer service" to "send" or "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 of such service placed the call or initiated the communication." Plaintiffs also challenged the provisions in 223(a)(2) and 223(d)(2), which make it a crime for anyone to "knowingly permit any telecommunications facility under [his or her] control to be used for any activity prohibited" in 223(a)(1)(B) and 223(d)(1) on the same grounds. The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both, for each offense.
The three-judge court struck down the challenged provisions of the CDA. ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), probable jurisdiction noted, 117 S. Ct. (Dec. 6, 1996). The Electronic Frontier Foundation maintains an archive of material relevant to this case. Three judges wrote three different opinions. Chief Judge Sloviter found that the CDA violates the First Amzendment because it effectively bans a substantial category of protected speech from the Internet. She noted that with respect to newsgroups, mail exploders and chat rooms, no technology is available to screen the age of participants. With regard to the World Wide Web, such technology is available, but it is too expensive and burdensome to use. She concluded that without age screening, speakers over the Internet "would have to reduce the level of communication to that which is appropriate for children in order to be protected under the statute." The decision that the challenged sections are unconstitutional is now being reviewed by the United States Supreme Court.
Another three-judge court heard a similar challenge to the CDA last year in Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996). There, the court found that the statute's complete ban on indecent communication between adults was over-broad, but it disagreed with the decision in ACLU v. Reno court as to the constitutionality of Section 223(d). The New York Federal court rejected constitutional challenges to that section, dismissing the argument that content providers on the Internet were unable to gauge community standards concerning indecency. The court refused to address the issue that, given the nature of the Internet, the CDA essentially required "the content provider to gear his message toward the least tolerant community." The court found that the record did not contain information concerning distinctions in community standards which would allow it to make such a conclusion, 930 F. Supp at 936-8.
In ACLU v. Reno, Judge Buckwalter did address the question of what type of indecency standard the CDA intended for Cyberspace. The standard must have a greater reach than the obscenity standard that was already in place because, by enacting the CDA, Congress intended to give children greater protection than was available under present law. Was the intent to create a uniform national standard of obscenity, or to retain the idea of variable community standards that have traditionally been used in obscenity cases? The statute uses community standards language but, as Judge Buckwalter noted, the Conference Report for the CDA states that the Act is "intended to establish a uniform national standard of content regulation," 929 F. Supp. at 863. The judge explained that "as interpretations of obscenity ebb and flow throughout various communities, restrictions on indecent material are meant to cover greater or lesser quantity of material not reached by each community’s obscenity standard. It follows that to do this, what constitutes indecency must be as open to fluctuation as the obscenity standard and cannot be rigidly constructed as a single national standard if it is meant to function as the government has suggested." Judge Buckwalter concluded that the ambiguity he found in the meaning of indecency left the statute unconstitutionally vague.
The variability in tolerance continues to be a concern, not only in the area of indecency, but also in the area of obscenity. The United States Supreme Court left the determination of what was legally obscene to community standards in 1973. Miller v. California, 413 U.S. 15 (1973). That decision allowed different communities to independently determine their level of tolerance of potentially obscene materials in their theaters, in their bookstores and on their magazine racks. Communities that would not tolerate certain publications or movies could express themselves through obscenity prosecutions, and those prosecutions would protect the community by deterring distribution of obscene materials in that community. Some communities have proven more tolerant than others, United States v. Various Articles of Obscene Merchandise. 709 F.2d 132 (2d Cir. 1983) (Deep Throat not obscene in New York City).
The Internet presents a fundamental challenge to that regulatory scheme because the technology involved makes it much more difficult to regulate the distribution of information to particular communities. Whether this fact is positive or negative depends on your view regarding the information involved. Totalitarian regimes view the Internet as a threat because they seek to reduce their citizens’ access to information and to control the media. Those seeking information in repressive societies see the technological difficulties involved in blocking the flow of information over
"Those seeking information in repressive societies see the technological difficulties involved in blocking the flow of information over the Internet to be a real protection. Once information is placed on the Internet, it is available anywhere in the world."
the Internet to be a real protection. Once information is placed on the Internet, it is available anywhere in the world where there is access to the Internet. Governments cannot jam the Internet like they can jam radio and television messages.
Conservative communities see certain information on the Internet as a threat, and want to take action against it as they would take action against a local movie house showing a film they believe to be obscene. The problem is that the only reasonably effective way of stopping that information from being available in one community is to make it unavailable in all communities.
United States v. Thomas, 74 F.3d 701 (6th Cir.1996) illustrates the problems with the continued use of the Miller v. California standard in the age of the Internet. In that case, a husband and wife operated an adult bulletin board service (BBS) in California. A postal inspector, working with a Federal prosecutor based in Memphis, Tennessee, joined the California BBS and downloaded adult-oriented pictures. Memphis is an area known for its conservative views, while California is known for more liberal views, especially as they relate to media. The couple was tried in Federal District Court in Memphis and convicted on 11 obscenity counts. The convictions have been upheld on appeal. The case has been held up as an example of why the Supreme Court's community standards ruling is outdated and unworkable in the age of the Internet.
Some believe that the community standards approach was developed in an attempt to protect small towns from big city standards. "Chief Justice Warren Burger was trying to prevent the standards of acceptability in New York City or San Francisco from dictating the standards of Kansas City or Norman, Oklahoma." Mike Godwin, Virtual Community Standards, Reason, November, 1994 at 48, 50. The use of this same standard to convict someone of obscenity who merely displays material on a bulletin board or Web site in his or her own jurisdiction, for example, can be said to turn such an intent on its head, because in such a case there is no intent to specifically direct the material into the offended community, and the only way to assure that people within an offended jurisdiction cannot obtain the material is to refrain from posting the material on the Internet. In this way, the continued use of the Miller v. California standard can be seen as empowering the most conservative communities to set Internet obscenity standards for everyone else. And this is not mere speculation. The danger exists that prosecutors from more conservative communities who want to make a name for themselves will drag people from outside their jurisdiction into court in their home towns and impose their communities’ more restrictive standards, especially if the broader "indecency" standard of the CDA is ultimately upheld by the United States Supreme Court. Given the kind of censorship that we have seen from time to time in local schools and public libraries in various communities around the nation, the prospect of criminal law-based small town censorship of the Internet, either using an obscenity standard or an indecency standard (if upheld), is a frightening prospect.
Another part of the CDA criminalizes any "indecent" communication by computer
intended to "annoy" another person and "knowingly permit[ting]"
someone else to so communicate, 47 U.S.C. §§223(a)(1)(A)(ii) and (a)(2). These sections
were recently challenged by a company that maintains an Internet site identified as
"a meeting place for the uninhibited" at
The Plaintiff’s Memorandum of Points and Authorities regarding Apollomedia Corporation v. Janet Reno, United States District Court, Northern District of California (three-judge court), states:
Plaintiff's web sites and some of its clients' web sites often communicate strong positions on public issues, using expression that may be considered "indecent" by some people in some communities. Its "annoy.com" web site (http://www.annoy.com) enables visitors to construct and send provocative email messages, anonymously, to various public officials and public figures, and transmits plaintiff's own and others' views on controversial matters. Plaintiff's online databases contain material of social or political value, some of which is sexually explicit or uses vulgar language. Plaintiff communicates – and "knowingly permits" its clients and visitors to its sites to communicate – material that might be considered "indecent" in some communities.
Plaintiff and its clients wish freely to criticize public officials and public figures by using whatever language or imagery seems to them appropriate to the occasion and, whenever they wish, to "annoy" such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions.
The plaintiff takes the position in the suit that annoying speech is constitutionally protected and that, to the extent the CDA outlaws such speech, it is unconstitutional. Specifically, it argues that the described CDA provisions violate the First Amendment on their face and as applied, to the extent they prohibit "indecent" communications made "with intent to annoy" another person, because they are impermissibly over-broad and vague. These CDA provisions are alleged to be less defensible than those that have already been struck down because they do not serve any government interest in protecting children and because they have no "safe harbor" defenses, as the other provisions do. The suit does not challenge other provisions outlawing "obscene, threatening, or harassing communications." The suit was filed January 30, 1997 in the United States District Court in San Francisco, and its request for injunctive relief is pending.
The most important decision in this area will be released by early summer, when the United States Supreme Court decides the ACLU v. Reno case. That decision should set the tone for future regulation of Internet content for years to come.
STEPHEN T. MAHER is a Miami lawyer and legal educator who has practiced and taught law for the past 20 years. He practices law with Stephen T. Maher, P.A. He also serves as the Director of Attorney Training at Shutts & Bowen, the oldest law firm in Miami. Steve consults with law firms on training issues and trains lawyers throughout the United States, in both public and private programs, through his consulting company, The Practical Professor Incorporated. He can be reached by e-mail at pracprof@usual.com
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