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Imagine a world where the government sat in judgment of what constituted “decent” online content and attempted to forbid speech or expression—and shut down Internet sites and services—that ran afoul of that fuzzy standard. If that sounds like Iran or China, it should! But it’s also what our own Congress ordained when it passed the Communications Decency Act of 1996. Fortunately, the Supreme Court struck down that law 15 years ago this year. The result was a freer, more open, more diverse Internet.
Enacted as part of a larger telecommunication policy overhaul, the CDA was the first attempt by the U.S. Congress to regulate objectionable material online. The law sought to ban “obscene or indecent” Internet content. A lower court immediately blocked the law’s indecency provisions, and was upheld a year later by the Supreme Court in Reno v. ACLU. The Court held that the CDA’s breadth was “wholly unprecedented,” hopelessly vague, and “would confer broad powers of censorship” if implemented.
As we celebrate the 15th anniversary of the Reno decision, it’s worth considering the profound impact the decision has had on the Internet and all First Amendment law.
The Net is “Born Free”
The most immediate and important result of Reno was that it meant the Internet was “born free”—it would not be denied full First Amendment protection. “The Reno opinion represent[ed] a significant departure from the usual way in which new communications media are treated,” argues First Amendment scholar Robert Corn-Revere. “New media are usually born in captivity, and the Court takes a great deal of time—usually decades—before recognizing that the First Amendment applies, much less that full protection is appropriate.” In Reno, by contrast, “the Court held that full First Amendment protection applies unless the government can prove otherwise,” he notes.
Prior to Reno, many free speech advocates feared that lawmakers and the Courts might treat the Internet like broadcasting and regulate it under the “pervasiveness standard” invented in FCC v. Pacifica Foundation, the Court’s famous 1978 “seven dirty words” decision. By a 5-4 vote, the Pacifica Court allowed the Federal Communications Commission (FCC) to regulate “indecent” broadcasts during daytime and early evening hours because broadcast speech was supposedly “uniquely pervasive” and an “intruder” in the home. The Court never explained, however, why such a slippery slope standard wouldn’t apply to just about any medium based solely on its widespread availability or popularity.
Just this week, that issue was again before the Supreme Court as it considered another challenge to the FCC’s indecency rules for broadcasting. Even if the Court should uphold these analog-era restrictions for television and radio broadcasters a bit longer, Reno at least firewalled-off the pervasiveness doctrine from the Internet. The Court made it clear that the technological characteristics of the Net would not limit its First Amendment protections.
Speech is Speech
Indeed, following the lead set in Reno, the level of First Amendment scrutiny applied by the Court since 1997 has not fluctuated according to the nature or popularity of the underlying medium over which speech flows. The new post-Reno norm: Speech is speech and deserves protection regardless of the how we receive it. Today, many related platforms—blogs, social networks, online markets, product review sites, and even gaming platforms—enjoy maximum First Amendment protection thanks to the precedent established in Reno.
The best example came just last summer when the Court handed down a historic First Amendment decision in Brown v. EMA, striking down a California law governing the sale of “violent video games” to minors. By a 7-2 margin, the Court held that video games have First Amendment protections on par with books, film, music and other forms of entertainment. Writing for the majority, Justice Antonin Scalia stated that, “the basic principles of freedom of speech do not vary with a new and different communication medium.” Again, this was squarely in line with the reasoning of Reno.
Empowerment Trumps Censorship
Another important legacy of Reno was the Court’s insistence that household empowerment solutions should generally trump regulation to address concerns about underage access to objectionable content and communications. The Court held that any law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving” the same goal. In other words, if households have tools and methods at their disposal that could block content that individuals or families found offensive, then the First Amendment requires those “less restrictive” options—not censorship—to be the first option.
That’s the right standard for a free society. When it comes to speech and expression, policymakers should respect Americans’ extraordinary diversity of tastes and values by leaving to parents and adults the ultimate decision about appropriate information and media content. That’s particularly important because most U.S. households don’t have children needing special protection anyway. (Less than one-third of U.S. households include children under the age of 18).
But what about the children? That’s the typical response to Reno and the other pro-First Amendment decisions that followed in its wake. But since Reno, we’ve witnessed an explosion of options for parents (like myself) seeking to guide their children’s upbringing. In fact, until just recently, I compiled on ongoing special report entitled Parental Controls and Online Child Protection: A Survey of Tools and Methods, which detailed the stunning diversity of approaches to crafting an appropriate media environment for families. While the early versions of the report were just a few dozen pages long, later versions grew to over 250 pages and I finally abandoned the project because there were just too many tools and methods to catalog!
The courts have held such household-based controls and strategies need not be perfect to be preferable to censorship—and rightly so. Absent removing all media and communications devices from our lives, it would be impossible to eliminate all unwanted or unexpected encounters from life. Parental control tools and methods will not always provide perfect protection, but they can act as training wheels or speed bumps along the media paths that children seek to go down without destroying those paths altogether as government censorship would do. Thanks to the Reno decision, that’s the world we live in today: Adults can decide for themselves (and their children) what media are appropriate without diminishing the options available to others.
“Deputization” Denied
Finally, it’s important to note what the Court did not strike down in its Reno decision: a lesser-known provision of the CDA, 47 U.S.C. § 230, commonly known as “Section 230.” That provision shields online operators from liability for information posted or published on their systems by users, ensuring that they cannot be “deputized” by governments to more aggressively police—even self-censor—their sites for various types of online content that public officials wanted curbed.
In an earlier column, I called Sec. 230 “the greatest Internet law” because it gave online intermediaries generous leeway to determine what content and commerce travels over their systems without the fear that they will be overwhelmed by lawsuits if other parties object to some of that content. Many of the online social media and e-commerce sites that we know and love today—Yelp, Twitter, eBay, etc.—might not exist without Sec. 230’s protections.
The Twilight of Censorship?
In closing, it’s worth asking: Was the Reno decision the end of the line for government censorship efforts? Probably not, but all future efforts to impose controls on speech and expression—online or otherwise—will be held to a much higher standard thanks to the Court’s historic decision 15 years ago in Reno v. ACLU.
