The Supreme Court's approach to the first amendment in cyberspace: free speech as technology's hand-maiden.

• Author: Kende, Mark S.

1. INTRODUCTION

   On June 26, 1997, the U.S. Supreme Court decided its first case involving cyberspace, Reno v. ACLU.(1) The Court ruled that the Communication Decency Act (CDA),(2) a federal law that bans the communication on the Internet of indecent speech aimed at children, violates the First Amendment's guarantee of freedom of speech.

   The question of what free speech rights exist in cyberspace has been aptly described as a "battle of the analogies." Under the U.S. Supreme Court's First Amendment jurisprudence, free speech rights vary with the technological medium through which the speech is expressed. The Court has been the most solicitous of speech from the print media (like newspapers and magazines) and the least respectful of broadcast speech (from television or radio).(3) The question then becomes: Is expression on the Internet more like print, or like T.V. broadcasts, or like some other medium, such as telephones? The Supreme Court discussed this issue in ACLU.

   This commentary deals mainly with a different but related question that is less examined: What effect will cyberspace have on how the Supreme Court views the First Amendment? One way to start answering that question is to compare ACLU with a Supreme Court decision from the 1995-96 term involving indecent speech on cable television, Denver Area Education Telecommunications Consortium, Inc. v. FCC(4)

   At first glance, the two decisions appear to conflict. In Denver, Justice Stephen Breyer wrote a plurality opinion advocating a non-categorical "wait and see" approach to free speech cases involving new technologies. In ACLU, however, the Court ruled decisively that the CDA's restriction on Internet indecency was subject to strict scrutiny which it failed to pass.

   Moreover, none of our current free speech theories seem able to reconcile these cases. These include the marketplace, self-fulfillment, social outlet, and political theories of free speech. My view, however, is that these two cases can be reconciled once it is understood that the Supreme Court is developing a new model of free speech analysis in Internet-related cases.

   The Court's new model can best be described as the "technology-driven" First Amendment because it is more concerned with preserving the development of new telecommunication technologies like the Internet than with the niceties of First Amendment doctrine. This commentary shows how the Court has started to develop this new First Amendment model, and offers several criticisms of how the Court is employing the new model.

2. THE DENVER CASE

   The Denver case examined the constitutionality of three provisions of a federal law regulating cable television.(5) The first provision authorized cable operators to ban indecent programming on their leased access channels (the "ban" provision).(6) The second provision required those cable operators who permit such indecent programming to segregate it onto one channel, and to block its availability until the cable subscriber requests it (the "segregate and block" provision).(7) Finally, the law permitted cable operators to prohibit indecent programming on public access channels (the "public access" provision). Indecent speech was defined in the law as programming depicting "sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards."(8)

   The Court upheld the constitutionality of the "ban" provision, but struck down the "segregate and block" and the "public access" provisions. In upholding the provision that lets cable operators ban indecent material, Justice Breyer wrote a plurality opinion that was extraordinary in several respects. He explicitly refused to select either a definitive level of scrutiny or a category in which to place free speech regulations of indecent material on cable television.(9) He based this refusal on a view that any choice of a First Amendment category today for this dynamic technology would be based on assumptions that will be rendered obsolete by further innovations.(10) He did not want the Court inadvertently to block these innovations.

   Moreover, despite saying that he was not selecting a level of scrutiny or a category, Breyer created a new default standard of review called "close judicial scrutiny," which he said underlay the Court's various speech cases.(11) Using this approach, he said that the cable law could not be sustained unless the government could demonstrate that the law "properly addresse[d] an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech."(12)

   Breyer upheld the ban provision by reasoning that it restored to private cable operators some limited editorial freedom and authority over indecent programming--authority they would possess in the absence of governmental cable regulations.(13) Thus, the ban was a flexible law, not a mandatory governmental prohibition. He further found the state had a powerful interest in preventing children from seeing this material and that the provision was not vague.(14)

   Breyer then struck down the segregate and block provision as being too rigid and burdensome.(15) The segregate and block provision limited cable operators to showing indecent material on one channel and required blocking regardless of the circumstances of the customer. Under this provision, a customer who wrote to his cable company seeking to view the indecent leased access channel might also have to wait up to 30 days for no good reason before the cable company unblocked that channel. Breyer said this waiting period was too restrictive given the availability of other technologies, such as the V-chip.(16)

   Breyer also struck down the third provision, which permitted cable operators to ban indecent programming on public access channels. Breyer reasoned that this provision was not justified since there was insufficient evidence to prove that indecent programming was a problem on such channels, especially since municipal governments or their agents usually regulate the content of the material on such channels anyway.(17)

   Justice David Souter wrote a concurrence indicating that the Court should not yet decide on a definitive standard for newer technologies in order to "do no harm" to technological innovation.(18) To support his position, Souter explained that the Court had caused great confusion by stumbling around for 16 years in the obscenity area before settling on the Miller v. California standard.(19) Souter said that the Court should not create the same problem with these newer technologies by prematurely adopting an incorrect standard. Souter said that Breyer was therefore right to rely heavily for support on "direct analog[ies]" to other specific cases, rather than taking a categorical approach.(20)

   Justice Anthony Kennedy (concurring in part and dissenting in part) strongly disagreed with Breyer's refusal to adopt a clear standard and stated that Breyer was overly "distracted" by these dazzling new telecommunications technologies.(21) Kennedy said that the Court should not abandon its First Amendment jurisprudence in such a context but should instead try to apply established First Amendment principles to the case.(22)

   Kennedy then explained that government regulation of cable television systems had made the leased access channels into a "designated public forum."(23) Thus, the content-based restrictions of indecent speech on cable, at issue in Denver, should receive the strictest scrutiny and be struck down. Kennedy's public forum analogy could be applied to the Internet as well.

   Justice Stevens authored a concurring opinion that criticized Justice Kennedy's public forum analogy. Stevens reasoned that if a medium became an irreversible public forum every time the government opened it up to the public, that would actually deter the government from opening the medium and reduce free speech...