Looking beyond the CDA victory.
For once, Bill Clinton got it right the first time.On June 26, the Supreme Court handed down its 9-0 ruling in the case of Reno v. ACLU, declaring the Communications Decency Act unconstitutional. Responding to the Court's decision, President Clinton issued a press release that implicitly acknowledged the key impact of the decision: any future attempt to craft "son of CDA" legislation is also likely to violate the First Amendment.
"The administration remains firmly committed to the provisions - both in the CDA and elsewhere in the criminal code - that prohibit the transmission of obscenity over the Internet and via other media," Clinton said. "Similarly, we remain committed to vigorous enforcement of federal prohibitions against transmission of child pornography over the Internet, and another prohibition that makes criminal the use of the Internet by pedophiles to entice children to engage in sexual activity."
Of course, the victors in Reno v. ACLU never challenged the provisions of the CDA that banned obscenity. And despite its supporters' claims, the act never addressed child pornography or pedophiles. Instead, it was aimed at "indecent" material, which isn't necessarily pornographic and which may not even be about sex at all.The president overlooked this, but his statement was probably the closest thing we'll ever get to an admission that he was wrong - totally wrong - in supporting the CDA as a constitutional way to protect children from inappropriate material on the Internet.
Still, the president didn't call for new anticyberporn legislation. Instead, some clueful soul at the White House must have convinced him that the Court's ruling is so broad that any legislation even remotely similar to the CDA will most likely be struck down as well. As Jonah Seiger of the Center for Democracy and Technology puts it, "Not only did the Court strike down the specific language of the CDA - it closed the door on future efforts to impose broadcast-style content regulations on the Internet."
Instead of calling for new legislation, President Clinton asked industry leaders and concerned citizens to help develop ways to protect children on the Internet, with a focus on technical solutions that give parents and teachers the ability to limit access to online material that kids shouldn't see. It's a nice idea - too bad he didn't think of that back in 1995.
Meanwhile, over on Capitol Hill, not everyone was as quick on the uptake. Senator Patty Murray (D-Washington), for example, released a statement promoting a sweeping new bill, the Childsafe Internet Act of 1997, which includes provisions to build mandatory parental-warning messages into every Web browser, incentives to rate content, and criminal penalties for misrating a site. In the House, Representatives Zoe Lofgren (D-California) and Ed Markey (D-Massachusetts) separately called for laws that would require ISPs to provide blocking software to subscribers - each a sort of Full Employment Act for the Net nannies of the software industry.
To be fair, these legislators were probably stuck in damage-control mode. Most of them had assumed the Court would strike down the CDA, but they believed that the decision would be based on narrower reasoning, leaving open the door to constitutional - but otherwise CDA-like - legislative measures down the line.
What they didn't count on, perhaps, was Reno v. ACLU arriving in the form of a 9-0 decision to strike the CDA down, and a 7-2 decision that no CDA-like legislation could be constitutional. In effect, the decision grants Internet speech at least the same amount of First Amendment protection that the Court has long granted to print entities like The Washington Post and Barnes & Noble. And that, in turn, means any government scheme that involves mandatory labeling and filtering is likely to be regarded as an unconstitutional form of "compelled speech" of the sort you could never impose in the print-media world of newspapers, books, and magazines.
None of this means that the war on Internet free speech is over. Even today, the Internet is so routinely (if reflexively) demonized by legislators and the media that opportunistic politicians will continue to use it as their bogeyman.
In the coming rounds, the fight for free speech and the fight for privacy will be closely intertwined. This fall, look for the Net to be characterized as a hotbed of kiddie porn and terrorism as the White House teams up with legislators such as John McCain (R-Arizona) and Bob Kerrey (D-Nebraska) to boost support for an antidemocratic cryptography agenda that promotes mandatory key escrow systems.
Look also for antiporn activists from the religious right to use Justice Stevens' majority opinion, which emphasized the "absence of evidence" supporting the need for a government clampdown on cybersmut, as an excuse for another pseudoscientific study of porn on the Net.
In the long term, though, the impact of Reno v. ACLU is likely to remain undiminished. As former FCC counsel Bob Corn-Revere summarized it, "This is a landmark decision of at least the magnitude of Near v. Minnesota (which held that states cannot impose prior restraint on newspapers) and New York Times v. Sullivan (which put First Amendment limits on libel law)." Justice Stevens' decision, Corn-Revere said, "is not the end of history on these matters - the Family Research Council has already been quoted about going back to Congress. But it leaves very little room for them to maneuver."
