Bridging the Analogy Gap: the Internet, the Printing Press and Freedom of Speech

• Publication year: 1997
• Citation: Vol. 20 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 3SPRING 1997

Bridging the Analogy Gap: The Internet, the Printing Press and Freedom of Speech

Jonathan Wallace(fn*)and Michael Green(fn**)

In June of 1996, a three-judge federal court issued a decision in ACLU v. Reno(fn1) holding that the Communications Decency Act, barring indecency on the Internet, was unconstitutional. Although all three judges concurred in the result, each rendering separate opinions containing some fascinating discussion of the correct analogy to apply to the Internet, there is virtually no agreement: one judge never discusses the issue;(fn2) one thinks the Internet could be comparable with either the telephone system or print;(fn3) and the third compares the Internet both to a printing press(fn4) and to a "worldwide conversation."(fn5)

Without judicial constraint and adherence to overarching principles of free speech, courts are likely to create a crazy quilt of First Amendment jurisprudence pertaining to the Internet, driven by the emotions and contingencies of the moment. The best proof of this danger is the patchwork of laws that the courts have already created where other electronic media are concerned. Laws pertaining to radio, television, cable, and the telephone are inconsistent and also contradict some basic First Amendment values.

The Supreme Court will bring the highest degree of clarity to the Internet freedom of speech debate if, in ACLU v. Reno, it sets forth the operative metaphor for freedom of speech and applies the metaphor in conjunction with an appropriate analogy for the technology.(fn6)

Part I of this Article discusses judicial decision-making tools with an emphasis on the use of analogy and the importance of applying legal precedents in a manner which is consistent and logical. Part I also discusses the use of metaphor in judicial decisionmaking and illustrates how operative metaphors for free speech have served to provide judges with guiding principles in applying the law. Part II of this Article discusses the use of analogical reasoning in cases involving technological media of communications. It points out that where courts do not analogize new technology to old, they fail in their decisionmaking capacity and therefore create confusing precedent. This Part concludes that, in determining the proper First Amendment treatment of new technologies, courts must apply the operative freedom of speech metaphor as well as determine the correct analogy for the technology. Part III of this Article examines the patchwork of laws which exist in First Amendment cases pertaining to technological media. This Part will explain the use of terms such as "spectrum scarcity" and "pervasiveness" which courts have used to rationalize different levels of governmental intrusion into speech. Part III will also look at the case of Denver Area Educational Technological Consortium v. FCC (fn7) and argue that it is an illustration of the confusion that is created when courts fail to find technological analogies in free speech cases.

Part IV of this Article addresses how courts can best understand the Internet. It lists metaphors which have developed for the Internet and explains how they can be considered by courts to help understand the technology from a user's perspective. Finally, this Part concludes that the Internet is most similar to the printing press for free speech purposes. By recognizing the Internet as similar to the printing press, the courts should feel compelled to permit the least amount of governmental intrusion into content.

I. Judicial Decision-Making Tools

A. Analogy and Adherence to Precedent

In his lectures on the judicial process, Judge Benjamin Cardozo seven decades ago acknowledged that a judge does not find law in the same way that a scientist discovers a law of nature.(fn8) Judges make law, much as a legislator does, and in so doing, they must search history for rulings on similar subject matter:I do not mean that the directive force of history, even when its claims are most assertive, confines the law of the future to uninspired repetition of the law of the present and the past. I mean simply that history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.(fn9)

And he quoted Maitland: '"Today we study the day before yesterday, in order that yesterday may not paralyze today, and today may not paralyze tomorrow.'"(fn10)

Cardozo urged that judges begin by first asking what the subject matter resembles:The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that precedents are ultimate sources of the law, supplying the sole equipment that is needed for the legal armory, the sole tools, to borrow Maitland's phrase, "in the legal smithy." Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and further back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn.(fn11) Once the precedents have been collected and sorted so as to "separate the accidental and the non-essential from the essential and inherent," there is much more to the work.(fn12) The judge must effectively apply precedent to the contemporary state of facts before her, selecting from, or blending, the following approaches:The directive force of a principle may be exerted along the lines of logical progression; this I call the rule of analogy or the method of philosophy; along the line of historical development; this I will call the method of evolution; along the line of the customs of the community; this I will call the method of tradition; along the lines of justice, morals and social welfare, the mores of the day; and this I will call the method of sociology.(fn13)

Each of Cardozo's pathways stresses the importance of adhering to precedent in resolving the issue at hand. The path which leads there most directly is what he calls "the rule of analogy." Analogy is a "logic[al] . . . inference that certain admitted resemblances imply probable further similarity."(fn14) In cases dealing with a new medium, analogical reasoning involves the selection of a model from prior media. This is the thought process which, for example, led courts in the nineteenth century to recognize that the telephone was effectively like the telegraph.(fn15)

The other three methods provide alternative routes to the same result. The method of history involves reviewing history in search of similar things and events, any of which may become the analogy if logic confirms its applicability. The third method, custom, is similar to history: one might call custom a subset of the precedent you find in history. Finally, the sociological method, as Cardozo explains it, involves determining the "social value" of a proposed ruling,(fn16) or rather, its fairness and consistency with contemporary mores.

Of Cardozo's four pathways, the sociological method relies least on analogy to reach a result. Nevertheless, a result which determines the social value of the ruling may be best cemented with a good analogy. After all, a well-reasoned ruling may be of little continuing value if courts fail to recognize it as a precedent in a future case where it would otherwise have provided guidance. Analogies can therefore serve as the thread connecting a sociological result to future controversies.

Because of its lack of adherence to precedent, Cardozo notes that the sociological method may only be freely used within the gaps left by prior rulings:We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance. We must keep within those interstitial limits which precedent and custom and the long and silent and almost indefinable practice of other judges through the centuries of the common law have set to judge-made innovations. But within the limits thus set, within the range over which choice moves, the final principle of selection for judges, as for legislators, is one of fitness to an end.(fn17)

Cardozo also quotes Saleilles: '"The goal is the internal life, the hidden but fruitful soul, of all law.'"(fn18) Ultimately, the judicial process involves "search and comparison, and little else."(fn19) The law which results "is not found, but made."(fn20) Cardozo sums up by saying:My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law.(fn21)

The judicial process, as Cardozo describes it, is similar to the taxonomy pioneered by Cuvier: compare a new animal to familiar animals to determine the one to which it is most similar. Then analyze the differences.(fn22) The judicial process even has its echo in modern object-oriented software analysis, where the analyst names classes of objects and creates a hierarchy of "inheritance" based on their relationships to one another.(fn23) Adjudication, to put it simply, is no more than another form of human work; like all others, it benefits from a careful use of analogical reading.

B. Use of Metaphor

A metaphor is "a figure of speech in which one thing is likened to another, different...