EXTENDING FIRST AMENDMENT PROTECTIONS
TO THE INTERNET


Computer guru Stewart Brand observed in 1987 that personal computers, electronic mail and word-processing programs are collapsing "the whole writing-publishing-distributing process into one event controlled entirely by the individual."

"If, as alleged, the only real freedom of the press is to own one, the fullest realization of the First Amendment is being accomplished by technology, not politics."

--Stewart Brand, "The Media Lab: Inventing the Future at M.I.T."
(New York: Viking Penguin Inc., 1987) 253.

 
Until now, however, different First Amendment standards have been applied to different communications technologies, with publishers enjoying the broadest protection and broadcasters enjoying more limited protection. For example, for more than forty years, broadcasters were required to devote a "reasonable" amount of time to covering "controversial issues of public importance" in their service areas and to provide a "reasonable opportunity" for significant opposing views to be heard. (Red Lion Broadcasting Co., Inc. v FCC, 395 U.S. 367 (1969)) No such obligation can be placed on publishers. (Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, (1974))
 
Under which First Amendment standard would the Internet be treated by the Supreme Court? The same fundamental First Amendment struggle has shaped the development of other media -- including telephone, radio, broadcast television and cable television -- as they emerged. At some point in their development, noted Phillip H. Miller, these media have sought to secure the broad First Amendment protections afforded to print publishers -- "the fullest freedom from regulation afforded by the First Amendment's proscriptions against governmental restrictions on free speech and freedom of the press." ("New Technology, Old Problem: Determining the First Amendment Status of Electronic Information Services," 61 Fordham L. Rev. 1147 (1993))
 
Congress seems to believe that in some respects (i.e., when dealing with obscene and indecent language) the Internet should be treated as a broadcast medium. Some legal scholars have contended, however, that online publishing -- which would include World Wide Web sites -- should be accorded the same broad First Amendment protections granted to print publications. (I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. at 996 (1994); Ronald Palenski, "Computer Publications and the First Amendment," 25 Law/Technology, at 1 (1992))
 
In American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. PA 1996) , a panel of federal judges recognized the Web as a "publishing" medium in which "personal home pages" are "the equivalent of individualized newsletters about that person or organization." (929 F. Supp. at 837) That same trio of judges in Philadelphia also concluded that the Internet deserves at least as much protection under the First Amendment as printed material receives. (Id. at 824, 881)
 
The judges emphasized that any analysis of the First Amendment protections afforded to a "particular medium of mass communication must focus on the underlying technology that brings the information to the user." (Id. at 876) They concluded that the Supreme Court's two primary theories for government regulation of broadcast communications content -- the NBC v. United States, 319 U.S. 190 (1943), "scarcity" rationale and the FCC v. Pacifica Foundation, 438 U.S. 726 (1978), "intrusiveness" rationale -- do not justify government regulation of the Internet.
 
The scarcity argument seems irrelevant because, as the plaintiffs and the government agreed, "Internet communication is an abundant and growing resource." (929 F.Supp. at 877) Nor would the Internet seem to fit the U.S. Supreme Court's definition of "intrusive." In his supporting opinion, Judge Stewart Dalzell noted that the panel had "found as fact that operation of a computer is not as simple as turning on a television, and that the assaultive nature of television . . . is quite absent in Internet use."
"The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks." (929 F.Supp. at 876)
Dalzell called Congress' attempt to "limit both the amount of speech on the Internet and the availability of that speech" "profoundly repugnant to First Amendment principles." (Id. at 881) The Internet, Dalzell wrote, "deserves the broadest possible protection from government-imposed, content-based regulation." (Id. at 883)
 
Much as Brand did, Dalzell recognized that this new form of mass communication achieves the "hoped-for diversity in the marketplace of ideas" envisioned in the First Amendment, calling it "the most participatory marketplace of mass speech that this country -- and indeed the world -- has seen." (Id. at 881)
 
Though to that marketplace, Dalzell conceded, the Internet adds some dialogue that "surely tests the limits of conventional discourse."
"Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar -- in a word, 'indecent' in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice." (Id. at 882)

 
Dalzell acknowledged that "the absence of governmental regulation of Internet content has unquestionably produced a kind of chaos." Yet, he wrote,
"Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects." (Id. at 883)
So how would the U.S. Supreme Court treat the Internet?
 
In Reno v. ACLU, 521 U.S. 844 (U.S. 1997), the Court said the special factors justifying regulation of the broadcast media -- history of government regulation of broadcasting, scarcity of available frequencies at its inception, and its invasive nature -- are not present in cyberspace. The Court agreed with the ACLU v. Reno panel that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." (521 U.S. at 870)
 
"Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry," wrote Justice Stevens. "Moreover, the Internet is not as 'invasive' as radio or television." (Id. at 868-69)
 
Unlike communications received by radio or television, he said, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." (Id. at 854)
 
Though Justice Stevens acknowledged that sexually explicit material is widely available on the Internet, he agreed with the lower court's finding that "users seldom encounter such content accidently." (Id.)
 
And "unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum," wrote Justice Stevens, "the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds."(Id. at 870)
"Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.

"From the publishers' point of view, it constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can 'publish' information." (Id.)

 However, though the Court drew an analogy between the Internet, particularly the WWW, and publishing, it stopped short of explicitly saying that cyberspace should be afforded the same full First Amendment protection as the print medium. Justice Stevens clearly did not champion, as Judge Dalzell had done so passionately and eloquently, the idea that the Internet is deserving of at least as much First Amendment protection as print publications.
 

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Produced for: INLS 310-76: Seminar on Internet Policy and Future Initiatives
Copyright 1997
Joey Senat
Last Updated: 6/22/04