By Eric
Schlachter and Wendy R. Leibowitz
THE COMMUNICATIONS Decency Act is history, but the
Supreme Court's decision in Reno v. ACLU, 96-511 (June 27, 1997) which struck
down the statute, will live on in a few important ways. Here's a nutshell
summary of what anyone who distributes content on the Internet -- whether by
e-mail, Usenet, listservs, the Web or other means -- should know about the
decision:
* The Internet is a different medium from radio or TV,
and therefore, government regulation of the Internet will be subject to a
different standard of scrutiny in the courts. Television and radio are heavily
regulated, and the constitutionality of those regulations has been consistently
upheld. In contrast, Reno v. ACLU shows that the courts are likely to apply
strict scrutiny to Internet regulation, leaving a heavy burden on the
government to defend any regulation.
Why This Matters: Some were concerned that the
standard in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) would apply to the
Internet, because the Pacifica case, which dealt with dirty words on the radio,
justified government regulation of radio, in part based on the intrusiveness of
the medium into the home. Despite the potential conclusion that the Internet
similarly intrudes into the home, the Reno Court indicated that the affirmative
steps required to access the Internet differentiate it from radio or
television. It will be interesting to see how that concept fares as push
technologies spread.
* Despite the foregoing, regulation of commercial speech
or commercial entities on the Internet might be upheld.
Why This Matters: The opinion suggests that, if
the statute were directed or limited to commercial speech or commercial
entities on the Internet, it might have been upheld. By making such a
statement, the Court appeared to be inviting Congress to redraft a statute that
takes aim "only" at commercial speech or commercial entities. In that
event, the Court might analyze the regulations under its commercial speech
doctrines, in which intermediate scrutiny is applied -- meaning that such a
regulation might be upheld.
* Internet speakers are not required to determine in
advance who their audience is.
Why This Matters: The elimination of the burden
for Internet speakers is very important to speakers in chat rooms and
listservs, who never know who is on-line or who might be reading previous
postings. Under the CDA as passed by Congress, a content provider had to assume
the worst -- that a minor was going to be reading the material -- but under
Reno v. ACLU, Internet speakers can assume the best: that only adults are
reading the material. The Court expressly rejected the notion of a
"heckler's veto" -- meaning that a person uncomfortable with the
discourse could not induce self-censorship merely by asserting that a minor
might be on-line.
* The opinion suggests that the "community
standards" test may be problematic when applied to the Internet. On the
Internet, "community standards" could mean that any communication
available to a nationwide audience might not be judged by the standards of the
community most likely to be offended by the message.
Why This Matters: The "most
restrictive" community standard approach was applied in U.S. v. Thomas,
1996 Fed. App. 0032P (6th Cir. 1996), where California bulletin board operators
were convicted of distributing obscene materials under Tennessee community
standards.
In Sable Communications of Cal. Inc. v. FCC, 492 U.S.
115 (1989), the Court placed the burden on dial-a-porn operators to take
whatever steps were necessary to comply with the community standards of each
jurisdiction where the prerecorded message was made available. The Reno Court
appears to suggest a deviation from the holdings in Sable and Thomas, away from
applying the most restrictive standards to applying a more tolerant approach to
community standards.
* The Reno Court (relying heavily on the district
court's findings [at 929 F. Supp. 824 (E.D. Pa. 1996)]) defined the Internet
for the first time. The definition of the Internet, particularly at the
district court level, was clear and will serve as a resource for all future
courts to cite. However, despite the excellent summary of the Internet made by
the district court, Justice John Paul Stevens' opinion grouped disparate
aspects of the Internet together, largely failing to distinguish between the
technological differences in e-mail, newsgroups, listservs, chat rooms and the
World Wide Web.
Why This Matters: Justice Stevens' opinion, by
obscuring the technological differences in the ways people can be speakers on the
Internet in the definition of the Internet, does not distinguish between
situations in which the speaker knows the identity, age and other demographics
of the listener and where the speaker has no knowledge of the potential
listener's demographics. Rather than trying to craft different rules that would
apply to different technologies, the Court treated all circumstances of
speaking as being directed toward effectively anonymous listeners --a
conclusion that, as it turns out, is most favorable to all Internet speakers.
Eric Schlachter is an attorney at Cooley Godward
LLP in Palo Alto, Calif., and an adjunct professor of cyberspace law at Santa
Clara University School of Law.
Wendy R. Leibowitz is the Technology Editor of The National Law Journal.