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Essay on Reno V Aclu
The conflict began on February 8, 1996, when President Clinton signed the CDA law and ACLU, along with EPIC and eighteen other plaintiffs, immediately filed its legal challenge. ACLU v. Reno represents the first legal challenge to censorship provisions of the Communications Decency Act (CDA). The CDA makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is “indecent” or “patently offensive” on computer networks if the speech can be viewed by a minor. The ACLU is a nationwide, non-partisan organization dedicated to defending and preserving the Bill of Rights for all individuals through litigation, legislation and public education. EPIC is a non-profit, education and research organization based in Washington, D.C. EPIC examines civil liberties and privacy issues that arise in new electronic media. Janet Reno was the attorney general for the U.S.

The kind of “indecency” identified as potentially criminal by government witnesses in Reno v. ACLU included Internet postings of the photo of the actress Demi Moore naked and pregnant on the cover of Vanity Fair, and any use online of the famous “seven dirty words”. In addition, the CDA would put at risk much of the socially valuable material posted online by the plaintiffs, including the ACLU, Planned Parenthood, Stop Prisoner Rape, Human Rights Watch and Critical Path AIDS Project. The ACLU argued that everyone, including minors, are entitled to have access to such socially valuable information.

Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter were appointed to hear the preliminary injunction, which included five days of live testimony, written testimony, documentary evidence, and detailed stipulations about the nature of the online medium. The decision issued by the District Court contained over 400 separate findings of fact that included information about the nature of communication and content in the cyberspace medium.

The ACLU argued in the lower court that the censorship provisions are unconstitutional because they would criminalize expression that is protected by the First Amendment and because the terms “indecency” and “patently offensive” are unconstitutionally overbroad and vague. ACLU plaintiffs Particia Nell Warren of Wild Cat Press and Kiyoshi Kuromiya of the Critical Path AIDS Project told judges they fear censorship under the new law. Ann Duvall, president of Surf Watch, took judges on a first-ever live tour of the Internet, including a demonstration of how her company’s software blocks access to sites deemed unsuitable for children. Dr. Donna Hoffman, an expert witness on marketing in cyberspace, tells the court that the censorship law would destroy the democratic nature of cyberspace, causing many “mom & pop” websites to close up shop for fear of civil and criminal penalties under the vague “indecency” ban.

Government witness Howard Schmidt conceded under cross-examination that it is “highly unlikely” for anyone to come across sexually explicit information on the Internet by accident. Plaintiff witness Dr. Albert Vezza told the court about PICS (Platform for Internet Content Selection), a new rating system designed to allow parents to control children’s access to the Internet without censorship. Dan Olsen, another government witness, acknowledged that PICS would allow parents to control their children’s Internet access according to their own values.

These judges decided in favor of free speech in cyberspace and the end of the CDA law. The lower court agreed with the ACLU’s view that the CDA’s ill-conceived effort to censor speech in the unique medium of cyberspace violates the First Amendment.

When the government decided to appeal the preliminary injunction ruling to the Supreme Court, it offered this court its first opportunity to consider how traditional free speech principles should be applied to the Internet. The government appealed to the Supreme Court, not by writ of certiorari, but by direct appeal because the CDA itself provides for a right of direct appeal to the Supreme Court. The court accepted Reno v. ACLU for full review.

The Court recognized the speech enhancing qualities of cyberspace, saying that “the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, and in the absence of evidence to the contrary, we presume government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.” The Court ruled that the CDA places an “unacceptably heavy burden on protected speech,” which “threatens to torch a large segment of the Internet community.” With these words, the Supreme Court closed its opinion: “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproved benefit of censorship.” In a virtually unanimous decision written by Justice Stevens, the Supreme Court ruled 7-2 to affirm the lower court decision striking down the CDA as unconstitutional. Justice O’Connor, with Chief Justice Rehnquist, concurred in the judgment but dissented in part.

In its ruling, the Court does several important things that will have an impact in the future. It gives evidence that the CDA is unconstitutional, it refutes its own decision in Pacifica v. FCC, and it tackles the analogy question about the Internet.

The Justices agreed that the CDA violates the First Amendment due to its vagueness and overbreadth, calling the CDA “a content-based blanket restriction on speech.” They also found it ambiguous in that “each of the two parts of the CDA uses a different linguistic form.” The Supreme Court was very concerned that serious speakers on issues like “birth control practices, homosexuality,” and “the consequences of prison rape” would be dampened by the CDA. The severity of its criminal penalties “may well cause speakers to remain silent rather that communicate even arguably unlawful words, ideas and images.”

The government’s argument was that because the CDA’s indecency language overlaps a section of the three-part Miller standard used in obscenity prosecutions, the law is not vague. Both the CDA and Miller standard hold that the material in question must be “patently offensive under contemporary community standards.” Reno v. ACLU leaves obscenity laws alone and deals only with the issue of non-obscene “indecent” speech. The Court said that a term that is not vague in context might be vague when standing alone. It explained in footnote thirty-eight:

Even though the word ‘trunk’, standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals.

The Justices concluded that the CDA “unquestionably silences some speakers whose messages would be entitled to constitutional protection.”

Stopping the CDA was the reason the case came into being, but the Justices did not cease there. They also reversed the ruling of Pacifica v. FCC, popularly known as the “Seven Dirty Words” case, from twenty years ago. Until Pacifica, the Court had always justified censorship of radio and television based on a doctrine known as “spectrum scarcity”. In other words, the government’s role in assigning frequencies in the scarce broadcast spectrum led to a role in reviewing content as well. In Pacifica, the Court labeled these mediums as “pervasive” and said that was why the government could censor. The Court defines radio and television as pervasive because it comes into the household, and that children turning a dial may stumble on indecent programming, thus justifying the censorship of indecent speech. Ithiel de Sola Pool, a communications scholar, wrote in 1983 that the pervasiveness doctrine would someday be used to justify “quite radical censorship”. The prediction almost came true in 1996 with the CDA law. The Supreme Court gave further stimulation to the CDA law by using pervasiveness as a rationale for censorship of non-scarce cable television in its Denver Area Educational Telecommunications Consortium v. FCC decision.

The Court declared that the Net is not pervasive in its Reno v. ACLU opinion. “Though [indecent] material is widely available, users rarely encounter such content accidentally…” The existence of warning screens and document descriptions dictates that “the odds are slim that a user would enter a sexually explicit site by accident.” Unlike radio and television, use of the Net requires “a series of affirmative steps more deliberate and directed than merely turning a dial.” Using the word “invasive” instead of Pacifica’s “pervasive”, the Court concluded: “The Internet is not as ‘invasive’ as radio or television. The Internet can hardly be considered a ‘scarce’ expressive commodity. It provides relatively unlimited, low-cost capacity for communications of all kinds.”

Another important thing that the Court’s ruling did was to make the analogy question about the Internet a little clearer. Until recently, courts analyzed new technologies by reference to older, similar ones. For example, in the last century the courts decided that the telephone’s legal regime could be determined by regarding it as a telegraph. The courts have done this because a strong analogy gives clear legal guidance, avoids messes, and saves time. For the last twenty-five years, the Supreme Court has departed from the analogy solution where new media are concerned. Instead, it has taken the view that for freedom of speech purposes, every new medium is unique and presents particular problems. At the same time, it has issued decisions that are slightly confusing, from Pacifica through last year’s Denver, saying that an analogy isn’t necessary. This insistence by the Court that technological precedent isn’t useful has tripped the Court up. For example, the Court announced that cable is not to be treated like broadcast television (Turner v. FCC I) and then saying that it is in fact to be treated like broadcast television (Turner v. FCC II).

Unlike the District Court, which analogized the Net to print and the telephone, the Supreme Court decision doesn’t rely on analogy to reach a result. However, the Court makes a couple of significant references: “The Web is thus comparable, from the readers’ viewpoint, to…a vast library including millions of readily available and indexed publications…” And again: “Through the use of Web pages, mail explorers and newsgroups, [any Net user] can become a pamphleteer.”

The Supreme Court applies standards of various strictness to determining the constitutionality of laws. Its highest standard of review is called “strict scrutiny”, which says that to survive, a law must be based on a compelling government interest and use the least restrictive means of reaching the goal. Laws evaluated under a “strict scrutiny” standard rarely survive, so the battle is mostly won when the Court agrees to apply this standard. By applying its highest standard to the Net, after referring to the Net as a library and Net users a s pamphleteers, the Court is acknowledging that the Net should be treated like print media, which has always had the highest level of First Amendment protection.

Elsewhere in the opinion, the Court backs away from this conclusion. It has long objected to almost every kind of restriction on the content of non-obscene print communications. The District Court observed that Congress would not even considered passing a “Newspaper Decency Act”. The Supreme Court does not tackle this issue “…because appellees do not press this argument before the Court, we do not consider it.” The Court goes on in footnote thirty to re-affirm that the government has a “compelling interest” in protecting minors from indecent, patently offensive speech. Thus, the Court leaves open the possibility that it may still tolerate a higher level of censorship for the Net than it has for print. Looked at this way, Reno v. ACLU may say nothing more than that the vague CDA fails where a more sniper-like approach may prevail.

Many people view this as a precedent-setting event. ACLU Executive Director Ira Glasser hailed the ruling as an unprecedented breakthrough in the fight to determine the future of free speech into the next century. “Everyone knew the CDA was unconstitutional, but Congress passed the law and the President signed it,” Glasser said. “Today’s historic decision affirms what we knew all along: cyberspace must be free.” Reno v. ACLU has indeed served as an example for many cases concerning the Internet in keeping cyberspace free. One such case occurred in 1998 and the offending law was so similar to CDA that one attorney said, “Whether you call it the ‘Communications Decency Act’ or the ‘Congress Doesn’t Understand the Internet Act,’ it is still unconstitutional and it still reduces the Internet to what is fit for a six-year-old.” The law was the Child Online Protection Act (COPA), which makes it a federal crime to “knowingly” communicate “for commercial purposes” material considered “harmful to minor.” Another law that was shut down in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library in 1998. This law censored library computers and the library’s website of all material deemed “wrong” for a minor. Both of these cases used Reno v. ACLU as a precedent, and both of the cases stopped laws that prohibited speech on the Internet.

The high court’s decision came just three days after federal district judges in New York and Georgia struck down Internet censorship laws in those states. The New York case, American Library Assoc. v. Pataki, dealt with a law almost identical to the federal CDA. Judge Loretta A. Preska ruled that the law violated the Commerce Clause of the U.S. Constitution because it attempted to regulate activity beyond state’s borders. In the Georgia case, ACLU v. Miller, Judge Marvin Shoob found a law banning anonymous speech on the Internet to be an unconstitutional restriction on free speech that “affords prosecutors and police officers with substantial room for selective prosecution of persons who express minority viewpoints.”

The Supreme Court’s ruling on Reno v. ACLU, together with the New York and Georgia decisions, creates a body of law that will help ensure that the free speech principles embodied in the Constitution apply with the same force on the Internet as they do in other “strict scrutiny” media. Many more cases challenging state attempts to regulate the Internet have occurred, and are strengthening and solidifying the Reno v. ACLU decision.

The Supreme Court’s decision will stand as one of the most important First Amendment decisions of the 20th century. The Court, whose freedom of speech jurisprudence had recently been “fragmented and confusing”, has issued a “clear, logical and correct statement which will be the cornerstone of free speech decision-making into the next century.” The Supreme Court’s decision that the Internet cannot be censored by CDA’s guidelines is critically important to the future of what one judge described as “the most participatory form of mass speech yet developed.”

ACLU press release for June 26, 1997. “Supreme Court Rules: Cyberspace Will be

Free!” 3 pp. Online. Internet. 20 Nov. 1999. Available

http://www.aclu/n062697a.htm.

ACLU press release for June 26, 1997. “ACLU v. Reno: A Chronology.” 5 pp. Online.

Internet. 20 Nov. 1999. Available http://www.aclu/n050896.htm.

ACLU v. Reno. 71 pp. Online. Internet. 20 Nov. 1999. Available

http://www.cmcnyls.edu/public/Index.htm.

Dilts, and Holsinger. Media Law. 4th Edition. 1998.

EPIC and ACLU joint press release for June 16, 1997. “ACLU, EPIC Call on Congress

and Clinton to “Take the First Amendment Pledge.” 2 pp. Online. Internet.

20 Nov. 1999. Available http://www.aclu/n061697c.htm.

Epic press release. “ACLU v. Reno II.” 3 pp. Online. Internet. 21 Nov. 1999.

Available http://www.epic.org/free_speech/copa/release_10_22.html

Johnson, Peter. “Cyberspeech in Court.” 4 pp. Online. Internet. 21 Nov. 1999.

Available http://web.lexis-nexis.com

Reno v. ACLU. 44 pp. Online. Internet. 20 Nov. 1999. Available http://oyez.nwu.edu/.
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