Decency Reconsidered Part Three

Another defender of cyber-rights, The Center for Technology and Democracy features coverage of net censorship, cryptology policies, and the Net's allies and adversaries in Congress. Click here to get more information.
DALZELL, District Judge
Diversity and Access on the Internet
Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas":

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market. Abrams v. United States (1919).
For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo (1974). These voices dominate -- and to an extent, create -- the national debate.
The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but, from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.
Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles.
My examination of the special characteristics of Internet communication and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation.
Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us", Leathers v. Medlock (1991) then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig.
Protection of Children from Pornography
I accept without reservation that the Government has a compelling interest in protecting children from pornography. The proposition finds one of its clearest expressions in Mill, who recognized that his exposition regarding liberty itself "is meant to apply only to human beings in the maturity of their faculties":

We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury. (John Stuart Mill, On Liberty).
This rationale, however, is as dangerous as it is compelling. Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship. Regulations that "drive certain ideas or viewpoints from the marketplace" for children's benefit, Simon & Schuster, 502 U.S. at 116, risk destroying the very "political system and cultural life" (Turner) that they will inherit when they come of age.
I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional (Tornillo, 418 U.S. at 258). Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. (Butler, 352 U.S. at 383.) There is no question that a Village Green Decency Act, the fruit of a Senator's overhearing a ribald conversation between two adolescent boys on a park bench, would be unconstitutional (Perry Education Ass'n v. Perry Local Educators' Ass'n (1983)). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny.
The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.
Judge Dalzell's Conclusion
Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.
True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos. 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."
For these reasons, I without hesitation hold that the CDA is unconstitutional on its face.
"Not long ago the net was touted as the greatest thing since fire. Now, a segment on Nightline, and fevered headlines in every newspaper in the country, the Internet has become known as the world's filthiest pipeline of hardcore pornography and pedophilic seduction," FEED Contributing Editor Gary Chapman wrote in an earlier Feedline (July 1995).
Click here to read Chapman's initial reaction to the law this Federal court found unconstitutional.

The Electronic Frontier Foundation has been fighting the good fight for several years now, protecting privacy, free expression, and access to public resources and information in new media. The have extensive resources on cyber-rights on their popular and informative Web site.

FEED Reader Chris Locke has his own thoughts on the import of the CDA decision:
"There is no doubt that the Philadelphia Decision will go down in Internet history as a tremendous victory for the <body BGCOLOR="#000000"> tag, and by extension, a resounding vindication of Netscape's bold move to break the virtual stranglehold of the needlessly restrictive HTML 2.0 standard..."
Click here to read more of his response.

"If there is anything positive that came from this ruling in Philadelphia, it is that it was so radical and so sweeping in ignoring existing laws and previous court rulings that it will crumble under Supreme Court authority," writes Exon.
Click here for the rest of Exon's response.

Click here to read the final part of CDA decision and commentary. Or click here to post your reponse in our Feedbag discussion area.

Another defender of cyber-rights, The Center for Technology and Democracy features coverage of net censorship, cryptology policies, and the Net's allies and adversaries in Congress. Click here to get more information.	DALZELL, District Judge Diversity and Access on the Internet Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas": [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market. Abrams v. United States (1919). For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo (1974). These voices dominate -- and to an extent, create -- the national debate. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but, from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles. My examination of the special characteristics of Internet communication and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us", Leathers v. Medlock (1991) then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. Protection of Children from Pornography I accept without reservation that the Government has a compelling interest in protecting children from pornography. The proposition finds one of its clearest expressions in Mill, who recognized that his exposition regarding liberty itself "is meant to apply only to human beings in the maturity of their faculties": We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury. (John Stuart Mill, On Liberty). This rationale, however, is as dangerous as it is compelling. Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship. Regulations that "drive certain ideas or viewpoints from the marketplace" for children's benefit, Simon & Schuster, 502 U.S. at 116, risk destroying the very "political system and cultural life" (Turner) that they will inherit when they come of age. I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional (Tornillo, 418 U.S. at 258). Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. (Butler, 352 U.S. at 383.) There is no question that a Village Green Decency Act, the fruit of a Senator's overhearing a ribald conversation between two adolescent boys on a park bench, would be unconstitutional (Perry Education Ass'n v. Perry Local Educators' Ass'n (1983)). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny. The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Judge Dalzell's Conclusion Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos. 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." For these reasons, I without hesitation hold that the CDA is unconstitutional on its face.
"Not long ago the net was touted as the greatest thing since fire. Now, a segment on Nightline, and fevered headlines in every newspaper in the country, the Internet has become known as the world's filthiest pipeline of hardcore pornography and pedophilic seduction," FEED Contributing Editor Gary Chapman wrote in an earlier Feedline (July 1995). Click here to read Chapman's initial reaction to the law this Federal court found unconstitutional.
The Electronic Frontier Foundation has been fighting the good fight for several years now, protecting privacy, free expression, and access to public resources and information in new media. The have extensive resources on cyber-rights on their popular and informative Web site.
FEED Reader Chris Locke has his own thoughts on the import of the CDA decision: "There is no doubt that the Philadelphia Decision will go down in Internet history as a tremendous victory for the <body BGCOLOR="#000000"> tag, and by extension, a resounding vindication of Netscape's bold move to break the virtual stranglehold of the needlessly restrictive HTML 2.0 standard..." Click here to read more of his response.
"If there is anything positive that came from this ruling in Philadelphia, it is that it was so radical and so sweeping in ignoring existing laws and previous court rulings that it will crumble under Supreme Court authority," writes Exon. Click here for the rest of Exon's response.