Regulating the Internet.

• Author: Keiser, Debra M.
• Position: Case Note

1. INTRODUCTION

   "Restricting [indecent] criminal material on the Internet should be a matter of common sense in any country that values its children more than it values the rights of consumers addicted to what degrades and dehumanizes."(1) This quote describes the recent debate concerning the right to free speech and the need to regulate indecency on the Internet. Some individuals are concerned as to why "[i]t is a crime to sell (minors) [indecent] magazines, but it is not a crime for them to find this stuff on the Internet."(2) Recently, our judicial system faced the challenge of addressing and solving this issue.

   In a recent case, Reno v. American Civil Liberties Union,(3) the United States Supreme Court struck down sections of a statute which attempted to protect minors from indecent and patently offensive material displayed on the Internet.(4) Although the Court properly declared those sections of the statute unconstitutional, the Court's analysis leading to its conclusion was partially erroneous.(5) As with all new media, the Court adopted a medium-specific approach in analyzing the new form of communication. However, the Court failed to perceive the vastness of the Internet, and, as a result, misclassified the medium and applied an improper standard of review.(6) The purpose of this Note is to demonstrate, by analyzing the Reno case, that stricter regulation of the Internet is necessary.

   Parts II and III provide a background regarding free speech and the First Amendment. Part IV discusses the judicial doctrines which are traditionally applied in free speech analysis under the First Amendment, and Part V explains the modifications imposed where a new medium of communication is being examined under free speech analysis. Parts VI and VII provide a background on the Internet and the Communications Decency Act of 1996,(7) and a summary of the Reno case, respectively. Part VIII analyzes the Supreme Court's medium-specific analysis, and Part IX explains why the Court's final decision was proper. Finally, Part X emphasizes why regulating the Internet is necessary to benefit American society now and into the future.

2. THE HISTORY OF THE FIRST AMENDMENT AND FREE SPEECH

   "[T]he matrix, the indispensable condition, of nearly every other form of freedom,"(8) is how Justice Cardozo characterized freedom of speech.(9) The idea that speech, regardless of its content, was protected, evolved through the "authoritarian nature of ... societies following the Middle Ages."(10) Pursuant to this idea, the English government attempted to permit the exercise of free speech, but that government's version of free speech was qualified compared with what we know as free speech today.(11) The English government believed that popular support of the government was equally, if not more valuable than the right of free speech and therefore limited the people's right of free speech.(12) The government admitted that popular support was essential to its survival, concluding that if it maintained a positive image, then people would continue to support it.(13) As a result, those who criticized the English government were punished.(14) Publication of a critical opinion was considered a criminal assault regardless of whether the statements were held true. "Truth was not a defense, for `the greater the truth, the greater the libel' against the government."(15)

   Similar practices occurred in America during the early 1700s.(16) However, many people valued the liberty to speak freely and critically, and at the time the Constitution was being drafted, Justice Blackstone explained that every free man had a right to express his opinions before the public; to prohibit such expression would destroy the freedom of speech and the nature of a free state.(17) In 1791, with the adoption of the Bill of Rights, came the enactment of the First Amendment, which now governs freedom of speech in the United States.(18)

3. FREEDOM OF SPEECH: FUNCTION, RIGHTS AND LIMITATIONS

   Freedom of speech in the United States is the "touchstone of individual liberty" and, in turn, democracy.(19) According to Oliver Wendell Holmes, "the primary goal of the First Amendment is to guarantee a `marketplace of ideas,' where truth and honest debate emerge from a multiplicity of voices."(20) Under the marketplace doctrine,(21) the First Amendment protects democracy by promoting the public discussion of competing ideas and by increasing the contributions of individuals in society and in their government.(22) Courts recognize the value of a free interchange of ideas and maintain it by preventing the government from interfering with the development and expansion of the marketplace of ideas.(23)

   The First Amendment plainly states that "Congress shall make no law ... abridging the freedom of speech."(24) Our society rests upon the ideal "that the government shall not silence speakers because of the content of their particular message," thus, "the Court insists that any law that regulates speech on the basis of its content is presumptively invalid."(25) However, the right of free speech is not absolute.(26) Congress has an interest in restricting certain speech that is deemed extremely harmful.(27) For example, the Supreme Court has held that the First Amendment does not protect child pornography,(28) obscenity,(29) or libelous speech.(30) In analyzing statutes alleged to infringe upon free speech, courts balance speech interests against the interests of the state or federal government.(31) The Court justified these decisions by using the balancing test and concluded that in some situations, including those involving laws regulating child pornography, obscenity, and libelous speech, the right of free speech was outweighed by a substantial government interest.(32)

4. JUDICIAL DOCTRINES PROTECTING THE RIGHT OF FREE SPEECH

   Although Congress has the ability to regulate certain types of speech, such as those previously mentioned, the judiciary maintains the authority to limit those restrictions so that no regulation unnecessarily infringes upon protected speech.(33) Generally, courts analyze statutes alleged to infringe upon free speech by applying the overlapping and intertwining doctrines of overbreadth, void-for-vagueness, and strict scrutiny.(34)

   The first device used to prevent an unconstitutional regulation on free speech, the overbreadth doctrine, requires statutes to be written carefully so that the goal of the regulation is achieved without the means impinging on protected speech.(35) An overbroad statute is defined as "a statute that is written too broadly, or more broadly than necessary," and is designed to limit activities which are not protected under the Constitution; however, as drafted, the statute "also includes activities protected by the First Amendment."(36) In determining whether a regulation is overbroad, courts consider "whether the statute is so sweeping that it would deter persons from engaging in protected speech, or whether it is so far-reaching that it could be used arbitrarily by law enforcement officials against political dissenters."(37) Finally, courts may declare a statute unconstitutional on grounds that it is overbroad and thus violative of the First Amendment.(38)

   Courts may also strike down a statute regulating free speech if it is too vague.(39) In general, the void-for-vagueness doctrine prohibits statutes that restrict speech in terms so vague that they include protected speech.(40) Further, the vagueness doctrine requires that criminal laws provide fair notice and explicit guidelines to individuals in order to prevent unnecessary regulation, which would deter people from engaging in protected speech.(41) The Supreme Court, in Grayned v. City of Rockford,(42) summarized the vagueness doctrine as follows:

   It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.... Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."(43) Finally, courts may apply the doctrine of strict scrutiny, which also safeguards the right to free speech through the "least restrictive means" test.(44) Even if a statute is drafted in terms that satisfy the overbreadth doctrine and the void-for-vagueness doctrine, the court may still find the regulation unconstitutional if its basic purpose can be fulfilled through more narrowly-tailored means.(45) The doctrine of strict scrutiny requires Congress to use the means that are least restrictive of free speech when developing a statute that may infringe upon protected speech.(46) "Even if the legislative purpose is legitimate, and one of substantial governmental interest, the government cannot pursue it by means that broadly stifle personal liberties if the end can be more narrowly achieved."(47)

   In application of the three doctrines, courts may declare a statute regulating speech unconstitutional if one or more of the doctrines is not satisfied.(48) The overlapping doctrines are employed by courts to make it difficult for Congress to restrict the precious right to free speech.(49) The judicial doctrines are particularly important when determining whether speech in the form of mass communication is constitutionally protected under the...