Internet & First Amendment overview
The First Amendment and the electronic media
The First Amendment’s seemingly simple command that “Congress shall make no
law … abridging the freedom of speech, or of the press” becomes exceedingly
complex in its application to electronic media. Not only must the practitioner
or scholar address the question of what types of expression are constitutionally
protected, he or she also must determine whether the speech at issue receives
the same immunity on the particular medium through which it is conveyed.
This problem did not begin with, but is well captured by, Justice Robert
Jackson’s observation in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1368″>Kovacs
v. Cooper (1949) that “[t]he moving picture screen, the radio, the
newspaper, the handbill, the sound truck and the street orator have differing
natures, values, abuses and dangers. Each … is a law unto itself.” Along with
the rise of the regulatory state of the 20th century, the Supreme Court adopted
the position that “differences in the characteristics of new media justify
differences in the First Amendment standards applied to them” ( href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1652″>Red Lion
Broadcasting Co. v. FCC, 1969). As a consequence, the Court spawned
distinct bodies of law and established differing levels of protection for
cinema, broadcasting, cable television, telephony and the Internet.
This approach to First Amendment interpretation led the Supreme Court to
follow a three-step process with the emergence of each new medium of
communication. As a threshold matter, it determined whether the medium was
protected by the Constitution at all. Next, the Court established the level of
constitutional immunity that applied to the particular technology. Finally, as
various media were assimilated into society, it decided whether its previous
analyses should be modified.
This system, if imperfect, at least was manageable during the first
three-quarters of the 20th century when the media landscape was comparatively
stable and the functions of the various communications technologies relatively
distinct. But the underpinnings of the “law unto itself” doctrine began to break
down as the pace of technological change accelerated and as media forms
converged. At the same time, however, the regulatory classifications that grew
out of federal licensing schemes tended to calcify constitutional analysis of
electronic media.
At the dawn of the 21st century, the Supreme Court began to move away from
its historic tendency to limit First Amendment recognition of new media. In its
initial case applying First Amendment protections to the Internet, for example,
href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1658″>Reno v.
ACLU (1997), the Court found “no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium.” However, the
disparate treatment of other electronic media arising from the “law unto itself”
approach persisted.
An old problem
Although the fragmented approach to First Amendment
analysis is associated with electronic media, it is hardly a new problem. The
advent of the printing press represented a distinct challenge to established
institutions — the church and the state — and authorities responded by
instituting press licensing and establishing censorship bureaus, as Ithiel de
Sola Pool wrote in his 1983 ground-breaking book, Technologies of
Freedom. In this respect, advances in the technology of communication
prompted official efforts to restrict the media.
But the power and popularity of the printing press overwhelmed the censors’
ability to maintain control, and the principal mechanisms of regulation —
including such measures as state monopolies, press licensing, special taxation
and criminal libel — largely were abandoned over time. The United States broke
with European tradition by embracing press freedom at the outset. Through the
First Amendment, the authors of the Constitution enshrined immunity from
government control for the new communication technology of their day as a
bedrock principle of the American system.
Although the printing press was “born free” in this country, the same cannot
be said for the electronic media. As newer technologies were developed and put
into use, courts and other policymakers have been slow to accord them full First
Amendment status. Pool observed in Technologies of Freedom that “[a]s new
technologies have acquired the functions of the press, they have not acquired
the rights of the press.” Legal scholar href=”http://www.sjgames.com/SS/tribe.html”>Laurence Tribe has said this
history reveals “a curious judicial blindness, as if the Constitution had to be
reinvented with the birth of each new technology.” Thus, contrary to the First
Amendment tradition, the electronic media tend to be born in captivity.
Elusive concept of ‘press’
the meaning of the First Amendment in the World War I Espionage Act cases, it
confronted the question of whether free speech and press guarantees applied to
the new medium of film. In a trilogy of cases involving Mutual Film Co. in 1915,
the Court upheld the authority of state censorship boards to subject moving
pictures to prior restraint. It found, as a matter of “common sense,” that
protections for a free press did not apply to cinema. According to the Court,
the technology of film posed a special danger that “a prurient interest might be
excited and appealed to,” and that “there are some things which should not have
pictorial representation in public places and to all audiences.” It concluded
“the exhibition of moving pictures is a business, pure and simple, originated
and conducted for profit, like other spectacles, not to be regarded … as part of
the press of the country or as organs of public opinion.”
For nearly four decades cinema remained outside the protection of the First
Amendment. Eventually, the Supreme Court overruled Mutual Film in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1345″>Joseph
Burstyn, Inc. v. Wilson (1952), upon finding that “expression by means
of motion pictures is included within the free speech and free press
guarant[ees] of the First and Fourteenth Amendments.” Although the Court
observed that “[e]ach method (of communication) tends to present its own
peculiar problems,” it ultimately concluded that “the basic principles of
freedom of speech and of the press, like the First Amendment’s command, do not
vary. Those principles, as they have frequently been enunciated by this Court,
make freedom of expression the rule.”
Although the Court in Joseph Burstyn, Inc. did not hold that the
Constitution guarantees “absolute freedom to exhibit every motion picture of
every kind at all times and all places,” and while many state film-review boards
remained in operation, the decision was a significant turning point. Thirteen
years later, in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1162″>Freedman
v. Maryland (1965), the Court struck down a Maryland film-censorship
statute because it provided inadequate procedural safeguards in the prior review
of films. In doing so, the Court suggested that the state should use the same
procedures as are required when the government seeks to enjoin the sale of
allegedly obscene books, thus removing any basis for distinguishing film from
print. By 1982, the Court described cinema as one of the “traditional forms of
expression such as books” that are protected as “pure speech.” Ten years after
this recognition, only one city in the United States — Dallas — still had a
film-review board, and it was dismantled the following year.
1
broadcasting in 1932 and again were reluctant to extend constitutional
protection to a new medium of expression. In the 1932 case Trinity Methodist
Church, South v. Federal Radio Comm’n, the U.S. Circuit Court of Appeals for
the District of Columbia upheld against constitutional attack a Federal Radio
Commission decision to revoke a radio station’s license. The FRC had argued in
its brief to the court that broadcasting is not protected speech under the First
Amendment. 2 Although the court did not exclude radio from
constitutional protection in the same stark terms used by the Supreme Court in
reference to film 17 years earlier, the result was the same. It described radio
as a mere “instrumentality of commerce,” and upheld the license revocation as
simply “application of the regulatory power of Congress in a field within the
scope of its legislative authority.” The “application of regulatory power” at
issue was the denial of a license renewal because of a licensee’s intemperate
attacks on public officials and for broadcasts that were “sensational rather
than instructive.” The Supreme Court declined to review the holding, even though
it had struck down a Minnesota press law the previous year on strikingly similar
facts in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1527″>Near v.
Minnesota (1931), involving scandalous attacks on public officials by a
newspaper protected from prior restraint.
When the Supreme Court finally considered the First Amendment rights of
broadcasters, it found some constitutional protections applied, but at a lower
level than for “traditional” media. In upholding rules that limited the
practices of broadcast networks, the Court held that the First Amendment does
not constrain government action in the same way as it does for print ( href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1511″>NBC v.
United States, 1943). “Unlike other modes of expression, radio
inherently is not available to all,” the Court explained. “That is its unique
characteristic, and that is why, unlike other modes of expression, it is subject
to governmental regulation.” It noted that “[t]he right of free speech does not
include … the right to use the facilities of radio without a license,” and
that “[t]he licensing system established by Congress in the Communications Act
of 1934 was a proper exercise of its power over commerce.” Justice Felix
Frankfurter’s opinion declined the networks’ invitation “to regard the (Federal
Communications) Commission as a kind of traffic officer, policing the wave
lengths to prevent stations from interfering with each other.” Rather, he wrote,
the Communications Act “does not restrict the Commission merely to supervision
of the traffic. It puts upon the Commission the burden of determining the
composition of that traffic.”
The Supreme Court upheld the government’s authority to regulate broadcast
programming in 1969 in Red Lion Broadcasting Co. v. FCC, a case involving
the FCC’s Fairness Doctrine. Pointing to spectrum scarcity and noting that
broadcast licensees are “public trustees,” the Court found that “it is idle to
posit an unabridgable First Amendment right to broadcast comparable to the right
of every individual to speak, write, or publish.” Instead, it concluded that,
under the public interest standard, “it is the right of the viewers and
listeners, not the right of the broadcasters, which is paramount.” The Court
expanded on the conclusion reached in NBC, that the First Amendment does
not prevent the government from regulating broadcast content in ways that would
be impermissible for more traditional media. The Court also has held that the
government has greater power to restrict “indecent” programming when transmitted
via broadcasting than it does for traditional media ( href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1080″>FCC v.
Pacifica Foundation, 1978). It based this conclusion primarily on the
uniquely “pervasive” presence of broadcasting in the home.
Although the Court has not yet reconsidered the “public trustee” rationale
and the diminished constitutional protection it entails, it has applied the
standard with less gusto since Red Lion and has limited its scope. In
href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=908″>CBS, Inc.
v. Democratic National Committee (1973), the Court held that
broadcasters are not required to accept issue advertisements and stressed that
the Communications Act of 1934 was designed “to maintain — no matter how
difficult the task — essentially private broadcast journalism.” It explained
that its view of broadcast regulation was not static “because the broadcast
industry is dynamic in terms of technological change(,) solutions adequate a
decade ago are not necessarily so now, and those acceptable today may well be
outmoded ten years hence.”
A little over a decade later, the Supreme Court invalidated a statutory
prohibition on editorializing by public broadcasting stations that received
funds from the Corporation for Public Broadcasting ( href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1078″>FCC v.
League of Women Voters of California, 1984). Although the Court
expressly upheld the “public trustee” concept of constitutional analysis over
strict scrutiny, it subjected the government’s asserted interests to a far more
rigorous analysis than ever before. It emphasized that “the broadcasting
industry is indisputably a part” of the press, supported its ultimate
conclusions with precedents involving traditional media, and questioned the
continuing validity of the scarcity rationale. However, despite noting
criticisms of the scarcity rationale, the Court said it would not be willing “to
reconsider our longstanding approach” until given “some signal from Congress or
the FCC that technological developments have advanced so far that some revision
of the system of broadcast regulation may be required.” Since then, in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1870″>Turner
Broadcasting System v. FCC (1994), the Court has stressed “the minimal
extent” the government may influence the programming choices of licensees,
noting “the FCC’s oversight responsibilities do not grant it the power to ordain
any particular type of programming that must be offered by broadcast
stations.”
First Amendment protection for cable television programming. In FCC v.
Midwest Video Corp. (1979) it described First Amendment concerns about
compelling cable-access programming requirements as “not frivolous,” but did not
take a position on the correct approach. The Court’s lack of direction led to a
splintering of First Amendment doctrine related to the regulation of cable
television. While most courts in the ensuing years concluded that the First
Amendment standard for broadcasting was inapplicable to cable, they could not
agree on a uniform constitutional approach. Some courts justified even greater
regulation of cable television on the theory that it is a natural monopoly,
while others rejected this proposition.
In href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=950″>City of
Los Angeles v. Preferred Communications, Inc. (1986) the Supreme Court
noted that cable television “partakes of some of the aspects of speech and the
communication of ideas as do the traditional enterprises of newspaper and book
publishers, public speakers, and pamphleteers.” But it also pointed out that
installation of a cable system involves “the stringing of nearly 700 miles of
hanging and buried wire and other appliances necessary for the operation of its
system,” and “where speech and conduct are joined in a single course of action,
the First Amendment values must be balanced against competing societal
interests.” The Court stopped short of weighing the various factors or offering
any more detailed views on the proper resolution of the First Amendment question
in that case.
It came closer to making a definitive statement about the First Amendment
status of cable television in cases involving mandatory broadcast carriage
rules. In Turner Broadcasting System v. FCC, 1994 (“Turner I”),
the Court explained that “the rationale for applying a less rigorous standard of
First Amendment scrutiny to broadcast regulation … does not apply in the context
of cable regulation.” It also rejected the government’s assertion that market
dysfunction justified “industry-specific antitrust legislation” in the form of
must-carry rules, subject only to rational basis scrutiny. But while the Court
found that “at least some degree of heightened First Amendment scrutiny” was
required, it characterized rules requiring cable operators to carry local
broadcast signals as content-neutral and declined to apply strict scrutiny.
Instead, the Court pointed to the bottleneck created by “the unique physical
characteristics of cable transmission” and analyzed the regulations using
intermediate-level scrutiny. It remanded the case to determine whether the
economic health of broadcasters was placed at risk by the cable bottleneck and
whether the must-carry rules were an appropriately tailored means of addressing
the problem. Following remand, the Court voted 5 to 4 to uphold the must-carry
requirements in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1871″>Turner
Broadcasting System v. FCC, 1997 (“Turner II”). Writing for the
majority, Justice Anthony Kennedy reaffirmed that intermediate scrutiny was the
correct constitutional test, and concluded that the record established by
Congress and the FCC adequately supported the rules. In a concurring opinion,
however, Justice John Paul Stevens wrote that the constitutional analysis would
be “quite different” if the statute “regulated the content of the speech rather
than the structure of the market.”
Although the Court’s decisions in Turner I and Turner II
suggested greater recognition of cable television as a technology that deserves
constitutional protection, the deeply divided opinions highlighted the Court’s
inability to articulate a uniform analytical approach. The justices addressed
the problem directly in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1024″>Denver
Area Educational Telecommunications Consortium v. FCC (1996), a case
involving regulation of “indecent” programs on public- and leased-access
channels. The plurality opinion, written by Justice Stephen Breyer, described
cable as a “pervasive medium” like broadcasting, but expressly declined to make
“a definitive choice among competing analogies (broadcast, common carrier, or
bookstore)” or “to declare a rigid single standard, good for now and for all
future media and purposes.” Joined by Justices Sandra Day O’Connor, David Souter
and Stevens, Breyer wrote that it would be “unwise and unnecessary to
definitively pick one analogy or one specific set of words now.”
In sharp contrast, Justice Clarence Thomas, joined by Chief Justice William
Rehnquist and Justice Antonin Scalia, wrote that the Court’s “First Amendment
distinctions between media, dubious from their infancy, placed cable in a
doctrinal wasteland in which regulators and cable operators alike could not be
sure whether cable was entitled to the substantial First Amendment protections
afforded the print media or was subject to the more onerous obligations
shouldered by the broadcast media.” Justices Kennedy and Ruth Bader Ginsburg
similarly faulted the plurality for declining to adopt a definitive
constitutional standard by which to evaluate cable television regulation.
In href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1897″>United
States v. Playboy Entertainment Group, Inc. (2000), a majority of the
Court finally declared that, at least with respect to the regulation of
programming content on cable television, strict First Amendment scrutiny
applies. The majority rejected the government’s argument that the restrictive
regime of FCC v. Pacifica Foundation should be applied to cable
television and applied a more speech-protective standard. The Court found that
the key difference between cable television and broadcasting “on which this case
turns” is that cable systems have the capacity to block unwanted channels on a
household-by-household basis.
First Amendment rights of telephone common carriers because of their traditional
function as conduits of the speech of others. One of the defining
characteristics of communication common carriage was a lack of editorial
control. Consequently, when the Court has discussed First Amendment issues in
this context, it typically contrasted common carriers with speakers or
publishers who originate content and make editorial judgments. In CBS, Inc.
v. Democratic National Committee, for example, the Court examined the
legislative history of the href=”http://showcase.netins.net/web/akline/1927act.htm”>Radio Act of 1927
and the Communications
Act of 1934 and found that Congress “firmly … rejected the argument that the
broadcast facilities should be open on a nonselective basis to all persons
wishing to talk about public issues.” It found great significance in the act’s
command that a person “engaged in radio broadcasting shall not … be deemed a
common carrier.”
This is not to suggest, however, that no First Amendment issues have emerged
relating to telephony. In the 1990s a number of lower courts found that the
First Amendment barred federal restrictions preventing common carriers from
providing cable television service. However, the Supreme Court’s consideration
of this constitutional question was cut short by passage of the
Telecommunications Act of 1996, which enabled telecommunications service
providers to offer video services (United States v. U.S. West, Inc.,
1996, judgment vacated). With respect to the regulation of content provided over
common carriers, the Supreme Court has held that the government does not have as
much leeway to restrict “indecent” communications as it does in the case of
broadcasting ( href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1693″>Sable
Communications of California, Inc. v. FCC, 1989).
The Internet breaks the mold
Unlike other new media, the Internet
presented courts with immediate First Amendment problems, and just as quickly,
the courts accepted the challenge. Congress precipitated this judicial review by
imposing broadcast-type restrictions on “indecent” communications through
passage of the Communications Decency
Act as part of the href=”http://www.fcc.gov/telecom.html”>Telecommunications Act of 1996. The
restrictions were short-lived, for in Reno v. ACLU (1997), the Supreme
Court held that the restrictions on both the “display” and “transmission” of
indecent communications online violate the First Amendment.
The Reno opinion represents a significant departure from the usual way
in which new communications media are treated. 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. Here, rather than presuming that the Internet should receive less
protection, the Court held that full First Amendment protection applies unless
the government can prove otherwise. In an opinion written by Justice Stevens
(author of the Pacifica decision), the Court explained:
“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. As the District Court found, ‘the content
of the Internet is as diverse as human thought.’ We agree with its conclusion
that our cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium.”
The Supreme Court expressly distinguished the Internet from other
technologies, such as broadcasting, noting that “the Internet can hardly be
considered a ‘scarce’ expressive commodity.” The Court pointed out that online
communication “includes not only traditional print and news services, but also
audio, video and still images, as well as interactive real-time dialogue.” It
added that the Internet is not as “invasive” as radio or television, and that
“[n]either 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.”
Though the Court’s decision in Reno set the baseline for analyzing
First Amendment questions involving Internet communications, it by no means
addressed the many difficult questions that will arise from this complex medium.
In this regard, two cyberspace cases from the Supreme Court’s 2001 term forced
the justices to reexamine basic constitutional assumptions underlying the
obscenity and child pornography doctrines. In href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Ashcroft_v_Free_Speech_Coalition”>Ashcroft
v. Free Speech Coalition (2002), the Court struck down a federal ban on
“virtual” child pornography in the 1996 Child Pornography Prevention Act (CPPA)
as a “textbook example” of why the law permits facial challenges to overbroad
statutes. It found that a prohibition of images that “appear to be a child”
engaging in sexual conduct where no actual children were involved prohibited a
substantial amount of protected expression and violated the First Amendment.
Meanwhile, in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=807″>Ashcroft
v. ACLU (2002), the Supreme Court reversed a decision of the 3rd U.S.
Circuit Court of Appeals to enjoin enforcement of the href=”http://www.epic.org/free_speech/censorship/copa.html”>Child Online
Protection Act (COPA), successor to the ill-fated Communications Decency
Act. The Court rejected the court of appeals’ reasoning that the borderless
nature of the Internet rendered unconstitutional restrictions on expression
deemed “harmful to minors” where legal liability is based on “community
standards.” It remanded the case to the lower court to further explore the
meaning of obscenity law in the Internet Age.
Both cases tackled issues that go to the heart of the Court’s complicated
rulings governing the regulation of sexually oriented speech. By touching on
core issues that define the essential nature of obscenity and child pornography,
these two cases breathed new life into disputes about what kind of speech may be
excluded from First Amendment protection and how courts should draw the line
between protected and unprotected speech. Moreover, their connection to this new
medium confirms that technological change will continue to fuel debates over the
meaning and scope of the First Amendment.
United States v. American Library Association
After three
unsuccessful attempts by Congress to regulate the Internet to keep harmful
material out of the hands of children, the Supreme Court decided in June 2003
that one law did pass constitutional muster. The justices ruled 6-3 in href=”http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=US_v_American_Library_Assoc”>United
States v. American Library Association that Congress could require the
nation’s libraries to filter Internet access — for adults as well as children —
as a condition of receiving funds for Internet hookups. (A provision of the law
requiring filters for computers in public schools was not challenged in this
case.)
The majority in the library ruling found that filtering software does not
violate the First Amendment even though it shuts off some legitimate,
informational Web sites. Four justices said the Children’s Internet Protection
Act was constitutional; two others said it was allowable as long as libraries
disable the filters for adult patrons who ask. However, the law doesn’t actually
state that the filters must be disabled if an adult library patron asks that it
be done.
Some legal experts have speculated that new First Amendment challenges to
CIPA may arise if libraries refuse such requests.
Notes
1 Elizabeth Kastor, “It’s a Wrap: Dallas Kills Film
Board,” Washington Post, Aug. 13, 1993, p. D1)
2
Lucas Powe, American Broadcasting and the First Amendment (1987), p.
16
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Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
