Justices quick to grant Internet’s First Amendment claim

Wednesday, May 12, 1999

(Editor’s note: This story originally appeared in the Next Media Reader: New Technology and the American Newsroom, a publication of the American Society of Newspaper Editors.)

In his eight years on the U.S. Supreme Court, Justice David Souter has yet to allow a personal computer to cross the threshold of his office. He prefers pen and ink

But it was Souter who first used the word “Internet” in a Supreme Court decision. It came in a ruling on June 28, 1996, in which the court struck down parts of a law that regulated sexually explicit material on public access cable television channels.

Souter was talking about the rapid pace of technological change and urging that in deciding cases that could affect the Internet and the World Wide Web, “we should be shy about saying the final word today about what will be accepted as reasonable tomorrow.”

Paraphrasing a Harvard scholar on the issue, Souter continued, “In my own ignorance, I have to accept the real possibility that if we had to decide today … just what the First Amendment should mean in cyberspace … we would get it fundamentally wrong.”

With that, Souter launched a series of cases interpreting the Internet’s place in the First Amendment landscape, a series that will probably continue well into the next century.

And, while it is difficult to predict where the court’s jurisprudence on the subject will end up, so far the signs are encouraging. Media organizations planning to experiment with online content can generally count on smooth sailing ahead.

The Supreme Court, throughout its history, has sometimes been slow to usher a new medium of expression into the First Amendment pantheon. It was not until 1952, for example, that the court ruled that motion pictures were protected by the First Amendment. And it still accords broadcast media less First Amendment protection than their print counterparts.

But it did not take nearly as long for the Internet to win recognition as the sort of widely democratizing medium that it is. The ability it gives individuals to broadcast their message as widely as any powerful media company gave it instant appeal in the eyes of the justices.

“Any person with a phone line can become a town crier with a voice that resonates further than it could from any soapbox,” the court said in its June 1997 decision in Reno v. ACLU. “Through the use of chat rooms, mail exploders and newsgroups, the same individual can become a pamphleteer.”

In using words like “town crier” and “pamphleteer,” Justice John Paul Stevens directly linked the Internet to the forms of communication that the framers of the Constitution sought to protect through the First Amendment more than 200 years ago.

The 1997 ruling struck down the Communications Decency Act, which made it a crime to knowingly transmit “obscene or indecent” material through the Internet in a way that makes it available to anyone under age 18. Among those challenging the law were online news media organizations that feared the law could criminalize the transmission of news on issues ranging from prison rape to female circumcision to Princess Diana.

Because of the way Stevens analyzed the Internet, the court used “strict scrutiny” — the highest level of review — in examining the CDA, thereby placing the Internet alongside core political speech on the First Amendment spectrum. Under the court’s longstanding system for examining laws that restrict speech, the more exalted the speech, the higher the hurdle government must overcome in restricting it.

Using that high standard, the court ruled that the the law at issue failed completely. It was deemed to be vague, not narrowly tailored and burdensome on adult speech. “It unquestionably silences some speakers whose messages would be entitled to constitutional protection,” Stevens wrote.

The victory for cyberspace First Amendment advocates was complete. A pen-and-ink Supreme Court had understood the nature of the Internet quickly. (The Supreme Court’s library had set up demonstrations of the Internet for the justices who were not computer savvy.)

Justice Sandra Day O’Connor offered the only cautionary note, writing a separate opinion suggesting that the law was not unconstitutional in every application and noting that future screening and tagging technology might make it more possible to block certain material from the view of minors. She was joined by Chief Justice William Rehnquist.

Congress tried again soon after the CDA was struck down. What it came up with was COPA, the Child Online Protection Act. This differed significantly from the earlier law, using a “harmful to minors” standard for defining what kind of material is banned online, and confining its reach to commercial pornographers, or those who place the material on the Internet as a “regular course” of business. It also offered an “affirmative defense” to prosecution under the law to any business that makes a “good faith” effort to restrict access by minors through use of a credit card or adult access code.

The Supreme Court has not yet examined the law. But its decision in Reno v. ACLU has colored how the lower courts have scrutinized it. Several content providers who feared the law would make them criminals challenged the statute. In a Feb. 1 decision, federal judge Lowell Reed Jr. in Philadelphia cited the earlier Supreme Court ruling in applying “strict scrutiny” to the new law. And again the law failed.

The judge determined that by, in effect, requiring the use of credit-card or adult-identification methods, the law imposed economic costs on speech that are unacceptable under the First Amendment. “Web site operators and content providers may feel an economic disincentive to engage in communications that are or may be considered to be harmful to minors and thus, may self-censor the content of their sites.” Reed also expressed doubts that COPA is the “least restrictive means” of achieving the government’s legitimate goal of protecting minors.

“While the public certainly has an interest in protecting its minors,” Reed wrote, “the public interest is not served by the enforcement of an unconstitutional law…. Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Reed issued a preliminary injunction barring federal enforcement of the law pending a trial on the merits of the law.

Another recent ruling suggests how resistant the Internet is to constitutional challenge. Last November, Judge Leonie Brinkema in Virginia struck down a local library system policy that barred library patrons from gaining Internet access to certain adult sites and material deemed harmful to minors. Again, the strict scrutiny was applied, and again the policy was found wanting.

Does this trend mean that all future regulation of the Internet is doomed? It may take another round of Supreme Court cases to answer that question definitively. And ironically, as Internet technology advances, regulation may become more constitutionally palatable if screening and tagging techniques pose less of an economic threat, and less of a chilling effect, to content providers.

But so far, because the Supreme Court said in 1997 that regulations of the Internet must pass “strict scrutiny” in order to survive under the First Amendment, the Internet — even in its relative infancy — shares the same constitutional embrace that pamphleteers, town criers and newspapers have enjoyed for centuries.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.