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Burning the Global Village:
The Constitutionality of State Laws Regulating Indecency in Cyberspace
Any content-based regulation of the Internet, no matter how benign the purpose,
could burn the
global village to roast the pig.
--Judge Stewart Dalzell
INTRODUCTION
Enforcement of the Communications Decency Act, a federal law criminalizing
the
distribution of indecent material to minors in cyberspace, was halted last
summer when two
panels of federal judges ruled the law unconstitutional. On March 19, 1997 the
United States
Supreme Court heard oral argument in Reno v. ACLU, the government's appeal of
one of the
injunctions. The first ruling from the Court on free-speech rights in
cyberspace is expected in
June or July. Although public debate has focused on the national law, for the
past two years
about twenty state legislatures have enacted or considered legislation that
would regulate online
speech, including speech defined as "indecent" or "harmful to minors." Such
legislative activity
has generated considerable controversy in some states, but little national
attention has focused on
the legislation and there are few published legal analyses of these laws. The
proper legal
framework for regulating content on the Internet has yet to be determined; the
CDA and the
states' efforts to regulate online indecency represent the first steps toward
defining such a
framework.
The purpose of this paper is to examine the constitutionality of state laws
regulating
indecency on the Internet, especially in the light of recent rulings finding
indecency provisions of
the federal Communications Decency Act unconstitutionally vague and overbroad.
Although
state laws regulate a wide range of speech in cyberspace, this paper focuses on
the regulation of
non-obscene sexually explicit material. The primary reason for this focus is
that the cases
involving the CDA provide a legal precedent with which to analyze the state
indecency laws.
Also, non-obscene sexually explicit expression on the Internet is where the
limits of free
expression are being tested. Several of the state statutes regulate speech that
is illegal or, like
obscene speech, not constitutionally protected, and in the process merely
duplicate existing laws.
Indecent speech, however, is protected by the First Amendment and therefore any
attempt to
regulate it raises serious First Amendment concerns.
A review of the state laws regulating cyberspace passed in 1995 and 1996
found three
statutes involving non-obscene sexually explicit material. These were passed in
New York,
Oklahoma, and Virginia. The New York statute, which took effect in November
1996, makes it
a felony to transmit "indecent" materials to minors. The Oklahoma statute,
enacted in April
1995, prohibits the online transmission of material deemed "harmful to minors."
Finally, the
Virginia law, enacted in March 1996, makes it illegal for any government
employee, except state
police, to use state-owned computer systems to access sexually explicit
material.
In ALA v. Pataki, fifteen plaintiffs filed a motion for a preliminary
injunction of the New
York law on March 3, 1997 in federal district court, saying they (and all
Internet users) could face
prison sentences of up to four years under the law. A hearing, scheduled to
begin on April 3,
will likely include a live demonstration of the Internet and expert testimony,
two elements that
proved influential in the ACLU v. Reno decision. The ACLU is planning to
challenge the
Virginia statute in court, calling it a "prior restraint on protected speech and
an impermissible
restriction of First Amendment rights."
BACKGROUND
Because this study seeks to assess the constitutionality of state laws
regulating indecency
in cyberspace, a brief discussion of the new medium provides the necessary
background
information and a framework for analysis. The Internet is a massive information
network
connecting more than 45,000 separate computer networks and 25 to 30 million
users in 154
countries and growing at an estimated rate of 191 percent every year. In his
1967 classic, The
Medium is the Message, Marshall McLuhan predicted that the electronic media
would create a
"global village" by allowing people to transcend the limitations of time and
space. Thirty years
later, the Internet is making the global village a reality. When the Internet
was born in 1969 as
ARPANET, it was the domain of the military and academia. It remained restricted
to defense
and research until the late 1980s when the creation of the World Wide Web and
web browsers
made the Internet accessible to the general public. While the vast majority of
content on the
Internet is intended for legitimate educational, cultural, political,
commercial, and entertainment
purposes, the presence of sexually explicit material on the Internet has
generated intense public
controversy. In fact, a New York Times article described the enactment of the
CDA as the
culmination of a wave of "cyberporn" hysteria that was ignited by media
assertions of the wide
availability of sexually explicit material on the Internet.
LITERATURE REVIEW
The controversy surrounding the CDA and sexually explicit content on the
Internet has
inspired a considerable amount of scholarship in the area of government
regulation of cyberspace.
However, little or no scholarly attention has focused on the specific topic of
this study, the
constitutionality of state laws regulating indecency in cyberspace. John D.
Zelezny's media law
textbook has a chapter on cyberspace, which includes a section about adult
material on the Net
and the CDA. His book provides a useful grounding for discussions of legal
issues in
cyberspace, while acknowledging the problems inherent to the early stages of
"cyberlaw," notably
the scarcity of authoritative case law specific to the medium. Consequently,
legal analyses of the
Internet often require that "analogies must be drawn with older cases concerning
other media." There are few articles or books in the field of mass
communication that focus on
government regulation of indecency in cyberspace, although some authors have
noted the
difficulties associated with applying existing media policies to the Internet.
Others have
discussed briefly the implications of cyberspace for rights of free expression
in the areas of libel,
hate speech, and obscenity. Legal newspapers, computer magazines, and
journalism trade
publications reported the defeat of the CDA as a coup for freedom of speech in
cyberspace, but
generally failed to offer in-depth analyses. Law journal articles examined
cyberspace regulation
in general and analyzed the CDA, but did not consider state legislation.
Commentary on the state
legislation was found on the web sites of free speech advocacy groups such as
the American Civil
Liberties Union and the Electronic Frontier Foundation. These sources, although
extremely
helpful, offered oversimplified analyses of the state laws.
This review focuses on three broad categories of literature: (1) popular
press accounts of
state legislation regulating the Internet; (2) analyses of state legislation
from advocacy groups
such as the American Civil Liberties Union; and (3) law review articles about
government
regulation of sexually explicit content on the Internet.
Newspaper and magazine articles about state cyberspace laws framed the
issue as a replay
of the CDA controversy, but on a smaller scale. New York Times reporter Pamela
Mendels
portrayed the New York and Virginia laws and the opposition to them as part of
an ongoing
struggle to define the role of the government vis-a-vis cyberspace. Mendels
said that the
supporters of online censorship see the laws as "reasonable measures to shield
society, especially
children, from sexually graphic material" while the opponents fear the laws will
stifle legitimate
free expression. Mendels quoted RoAnn M. Destito, the Democratic assemblywoman
who
introduced the New York bill, as saying that the law is necessary to protect
children from online
pedophiles. But according to Christopher Dunn, legal director of the New York
Civil Liberties
Union, the law could also limit adults' access to indecent material. In the
Mendels article, the
Virginia law prohibiting state employees from accessing sexually explicit
material on state
computers was criticized by Robert M. O'Neil, director of the Thomas Jefferson
Center for the
Protection of Free Expression. O'Neil called the law poorly crafted and said
that it could chill
legitimate research by state university professors in a number of fields,
including art history,
sociology, and medicine.
While the New York Times framed the cyberspace indecency debate as a matter
of free
speech vs. child protection, some free speech advocacy groups analyzed the state
indecency laws
as simply unconstitutional, regardless of their intent. Moreover, they argued
that parents, not the
government, should bear responsibility for protecting their children from
sexually explicit material
or solicitation. The Threat of State Censorship Bills, a document on the ACLU
home page,
argued that laws designed to keep adult materials from minors unconstitutionally
reduce all online
content to material suitable only for children. This document also criticized
the "harmful to
minors" definition used in some state laws because this definition could be
interpreted to include
important online information, such as sex education materials or abuse recovery
discussion
groups.
In addition to these general objections to cyberspace regulation, the ACLU
published
analyses of the New York and Virginia laws. It called both laws
unconstitutionally overbroad and
predicted that they will chill protected speech on the Internet. The New York
law was faulted for
not excluding materials with serious value, such as literary works and
information about AIDS, a
criticism also made of the CDA by Judge Dolores Sloviter. Similarly, the
Virginia law was seen
as so sweeping that it could prohibit professors at state universities and
social workers in child
abuse cases from using the Internet to research sexually explicit information.
Rich Burroughs, author of the online publication State Censorship,
characterized the New
York law as unconstitutional, prohibiting the online distribution of everything
from safe sex
information to Botticelli's famous works. He also noted that it poses serious
liability threats for
system operators. The Electronic Frontier Foundation strongly criticized the
New York law, for
the same reasons noted above, but also because it burdens the service providers
and ignores
existing parental control technology. The EFF also condemned the Oklahoma law
defining
obscene as "harmful to minors," arguing that this law is either completely
pointless because
obscenity is already illegal, or unconstitutional because it attempts to broaden
the definition of
obscenity to include constitutionally protected material.
Law journal articles did not specifically discuss the state laws regulating
cyberspace.
Instead, they either examined Internet regulation in general or analyzed the
CDA. The articles
that took the broader view considered the First Amendment implications of the
cyberspace
medium. Some authors concluded that the Internet is creating a real marketplace
of ideas, and
that government regulation is more dangerous than the objectionable content that
some people
want to censor. The articles that analyzed the CDA focused on the indecency
standard and its
applicability to cyberspace.
Several of the law journal articles reviewed were concerned primarily with
whether, in
banning "indecent" material, the government has chosen the least restrictive
means of preventing
harm to children and with the related issue of technological alternatives to
government censorship.
For example, Cass R. Sunstein devoted a major portion of his 1995 article in The
Yale Law
Journal to a discussion of the importance of establishing that a governmental
ban is the least
restrictive means of preventing harm. Sunstein hinted that in the case of the
Internet,
government regulation is not the least restrictive means, but indicated that the
alternatives would
have to be explored before reaching a conclusion. Sean Adam Shiff, in a 1996
William Mitchell
Law Review article, asked the same question and concluded that the answer will
have to await
further technological advances. If the technology reaches a point where users
could effectively
control the content on their screens and block out all unwanted material, then
the government
would no longer have a compelling interest in regulating the medium.
Some authors took this argument a step further, stating that viable
alternatives to
government regulation are already in place and concluding that government
regulation of
cyberspace indecency is not only overly restrictive, but unnecessary. Fred H.
Cate wrote in
Behavioral Sciences and the Law that the Internet is well suited to enhancing
parental control
over children's viewing. In particular, he cited the use of warning screens
through which users
must pass before accessing adult material and the use of passwords, which are
supplied only after
proof of age is furnished. In the Golden Gate University Law Review, Andrew
Spett cited some
additional alternatives which would achieve the government's purpose of
protecting children from
exposure to offensive material while also preserving First Amendment
protections. He mentioned
filtering software, which is already available and is being improved, and he
suggested a self-imposed rating system. He concluded that the legislature must
avoid assuming a parental role
and impinging on First Amendment rights. Jason Kay discussed in the Southern
California
Interdisciplinary Law Journal two other forms of self-regulation in cyberspace:
flaming and the
self-restricted channeling of sexually explicit material. Flaming, an online
attack on someone
who posts objectionable or inappropriate material, represents a form of
cyberspace law and order,
according to Kay, while self-restricted channeling refers to the way that
newsgroups generally
limit discussions of sex to the appropriate groups in the hierarchy.
Two authors focused their discussion of cyberspace regulation on problems
associated
with the term "indecent." Mike Godwin, staff counsel to the Electronic Frontier
Foundation,
discussed the indecency question in a panel discussion published in Cardozo
Arts &
Entertainment Law Journal. He pointed out that Congress has considered a large
amount of
indecency regulation and that indecency "has no meaning at all, because it has
never had a
qualified statutory or court definition." He concluded that the term is
unacceptably broad and
would stifle free speech in a remarkable new medium. Similarly, Nadine
Strossen, professor of
law at New York Law School and president of the ACLU, discussed the indecency
question in
the same panel discussion and concluded that the term is too vague and
subjective. She also
argued that a law employing the indecency standard, such as the CDA, would be
used
disproportionately against marginalized and unpopular groups, such as gays and
lesbians.
Two authors considered cyberspace in broader terms, viewing it as a
potential means for
society to more fully realize the promise of the First Amendment and to expand
freedom of
speech. In the Yale Law Journal, Eugene Volokh argued that cyberspace brings
reality closer to
the idealized world of the "marketplace of ideas" because in cyberspace speech
is relatively cheap
and some ideas which might be silenced in the conventional media are given
relatively wide
exposure. Thus, cyberspace may help to realize the First Amendment promise,
whereby all ideas
are accessible to all people. In the same journal, Thomas G. Krattenmaker and
L. A. Powe, Jr.
articulated a closely related position. They argued for discarding the
broadcast model of
regulation, which offers less protection to the media, and expanding the print
model to all media,
including the emerging technologies such as cyberspace. They concluded that
"the goals of an
open, stable democracy are best advanced by relying on recipients to choose from
among
competing speakers unconstrained by government."
In sum, although the literature relevant to this study discussed state
cyberspace regulation
and analyzed federal laws against online indecency, the literature did not offer
a detailed analysis
of state laws regulating online indecency. Rather, the bulk of the literature
focused on the First
Amendment implications of cyberspace and the alternatives to government
regulation. Thus, the
literature does not contain a comprehensive study of the constitutionality of
state laws regulating
indecency in cyberspace. This study attempts to fill that gap by closely
examining laws in New
York, Oklahoma, and Virginia regulating online material that is deemed indecent
or harmful to
minors.
RESEARCH QUESTIONS
This paper will address the following questions:
1. What have states done in the area of regulating indecency on the Internet?
2. Are state statutes regulating indecency on the Internet constitutional? In
particular, do they
pass the strict scrutiny test? Is there a compelling government interest? Is
the regulation the least
restrictive means of meeting the government interest?
3. What is the current legal framework for regulating content in cyberspace?
What are the
rationales underlying this framework, and do they apply to cyberspace?
METHODOLOGY
In order to determine the constitutionality of state laws regulating
indecency on the
Internet, this paper uses both statutory analysis and case analysis. In
particular, it analyzes the
following sources: state statutes regulating Internet content in New York,
Oklahoma, and
Virginia; the Communications Decency Act, part of the Telecommunications Act of
1996; ACLU
v. Reno and Shea v. Reno, two cases resulting in preliminary injunctions of the
CDA; and relevant
court decisions on indecency, including FCC v. Pacifica and Sable Communications
v.
California. As Zelezny noted, the body of authoritative cyberspace case law is
limited. This
paper reflects the scarcity of "cyberlaw," drawing analogies when necessary from
older cases
concerning other media.
THE CONSTITUTIONALITY OF STATE REGULATIONS
The following analysis of state statutes regulating online indecency has
three main areas of
focus: (1) the language and scope of statutes regulating indecency on the
Internet; (2) the
constitutional issues raised by these statutes; and (3) the legal framework for
regulating Internet
indecency. The first part examines closely the relevant legislation in New
York, Oklahoma, and
Virginia. It also compares the language of these laws to that of the CDA. The
second section
analyzes the constitutional implications of the state legislation, again using
the CDA as a basis for
comparison. The third section explores a broader question underlying cyberspace
content
regulation: Should existing models of media regulation be applied to cyberspace,
or does the new
technology require a new framework?
STATUTES REGULATING INTERNET INDECENCY
Indecency, in the legal sense, refers to a category of speech that is
restricted in the
broadcast media even though it is not obscene and would be unrestricted in the
print media. In
attempting to regulate indecency on the Internet, the government has applied the
broadcast
framework of regulation to the Internet. In the process, it granted this new
medium the same
lower degree of First Amendment protection that radio and television broadcasts
are given. This
section describes the provisions of the New York, Oklahoma, and Virginia
statutes, paying
particular attention to their definitions of prohibited speech and affirmative
defenses provided for
in the statutes.
Defining the prohibited speech
Before examining the state laws regulating Internet indecency, this paper
describes and
analyzes the statutory language of the CDA in order to provide a framework for
analysis of the
state legislation. A part of the Telecommunications Act of 1996, the CDA
prohibits the
transmission of indecent material to minors over the Internet:
Whoever in interstate or foreign communications knowingly uses any interactive
computer service to display, in a manner available to a person under 18 years of
age, any comment, request, suggestion, proposal, image, or other communication
that, in context, depicts or describes, in terms patently offensive as measured
by
contemporary community standards, sexual or excretory activities or organs,
regardless of whether the user of such service placed the call or initiated the
communication, shall be fined (up to $250,000) or imprisoned not more than two
years, or both.
Thus the CDA attempted to ban from the Internet expression that is patently
offensive but not
necessarily obscene, unless that expression can be made unavailable to minors.
The CDA's
definition of prohibited speech, in extending beyond obscenity, covers
constitutionally protected
speech. The broadness of this definition, among other considerations, led two
panels of judges to
rule the CDA unconstitutional.
Similarly, the New York statute makes it a crime to disseminate indecent
material to
minors over the Internet. This statute prohibits
communication which, in whole or in part, depicts actual or simulated
nudity,
sexual conduct or sado-masochistic abuse, and which is harmful to minors,
[when
such communication is initiated or engaged in] with a minor through any
computer
communication system allowing the input, output, examination or transfer,
of
computer data or computer programs from one computer to another.
The language of the New York statute, like that of the CDA, encompasses
nonobscene
sexually explicit material, which is constitutionally protected. It differs
from the CDA in its use of
the term "harmful to minors" and in its definition of indecent material. The
CDA uses the
indecency definition set forth by the Federal Communications Commission in 1975,
as material
that "describes or depicts, in terms patently offensive as measured by
contemporary community
standards for the broadcast medium, sexual or excretory activities or organs."
However, the
New York statute defines indecency as material that "in whole or in part,
depicts actual or
simulated sexual conduct or sado-masochistic abuse which is harmful to minors."
Because the
prohibited material need not be "patently offensive" but merely "harmful to
minors," it could
encompass a wide range of material with educational, literary, or artistic
merit. In drafting the
CDA, Congress rejected the "harmful to minors" standard in favor of the more
inclusive
"indecency" ban. The final version of the New York statute was approved by the
legislature in
October 1996, several months after the CDA was ruled unconstitutional. Thus,
the language of
the New York statute may be interpreted as an attempt to make the law acceptable
to critics who
found the "indecency" standard too broad and vague.
Oklahoma also uses the "harmful to minors" standard in its legislation: "No
person shall
cause to be placed in a computer system or an electronic bulletin board any
material which is
harmful to minors." The statute includes this definition of "harmful to
minors":
"Harmful to minors" means that quality of any description, exhibition,
presentation
or representation, in whatever form, of nudity, sexual conduct, sexual
excitement,
or sadomasochistic abuse when the material or performance, taken as a
whole, has
the following characteristics:
a. the average person eighteen (18) years of age or older applying
contemporary
community standards would find that the material or performance has a
predominant tendency to appeal to a prurient interest in sex to minors, and
b. the average person eighteen (18) years of age or older applying
contemporary
community standards would find that the material or performance depicts or
describes nudity, sexual conduct, sexual excitement or sadomasochistic
abuse in a
manner that is patently offensive to prevailing standards in the adult
community
with respect to what is suitable for minors, and
c. the material or performance lacks serious literary, scientific,
medical, artistic, or
political value for minors.
Not only is the Oklahoma definition of "harmful to minors" significantly
narrower than the
New York definition; it is also virtually the same as the definition of
"obscenity" stated in Miller
v. California. Thus, the Oklahoma law appears to regulate obscene material,
which is not
protected by the First Amendment and is already illegal in most states.
The Virginia law prohibits a broad range of material, but is far more
limited in its scope
than the other laws this paper examines because it only applies to state
employees. The statute
provides that no state employee "shall utilize agency-owned or agency-leased
computer
equipment to access, download, print or store any information infrastructure
files or services
having sexually explicit content." Exceptions to this restriction are: state
police and employees
who access such material "in conjunction with a bona fide, agency-approved
research project or
other agency-approved undertaking." The restricted material is defined as any
description or
visual representation "depicting sexual bestiality, a lewd exhibition of
nudity...sexual excitement,
sexual conduct or sadomasochistic abuse...coprophilia, urophilia, or fetishism."
This language is
similar to that used in the New York legislation, but its limitation to
employees of the state of
Virginia using state computers suggests that it represents substantially less of
a First Amendment
threat than an outright ban and therefore may be held to a lesser standard of
scrutiny than the
CDA.
Affirmative defenses
The New York statute provides a defense for certain categories of users of
the "indecent
material":
[I]t is an affirmative defense that the persons to whom the allegedly
obscene or
indecent material was disseminated, or the audience to an allegedly obscene
performance, consisted of persons or institutions having scientific,
educational,
governmental or other similar justification for possessing, disseminating
or viewing
the same.
The New York statute also provides the following defenses:
(A) The defendant made a reasonable effort to ascertain the true age of the
minor
and was unable to do so as a result of actions taken by the minor; or
(B) the defendant has taken, in good faith, reasonable, effective and
appropriate
actions under the circumstances to restrict or prevent access by minors to
materials
specified...including any method which is feasible under available
technology; or
(C) The defendant has restricted access to such materials by requiring use
of a
verified credit card, debit account, adult access code or adult personal
identification number; or
(D) The defendant has in good faith established a mechanism such that the
labelling, segregation or other mechanism enables such material to be
automatically
blocked or screened by software or other capabilities reasonably available
to
responsible adults wishing to effect such blocking or screening and the
defendant
has not otherwise solicited minors not subject to such screening or
blocking
capabilities to access that material or to circumvent any such screening or
blocking.
These defenses are more comprehensive than the ones provided in the CDA,
perhaps
reflecting the New York legislature's awareness of the constitutional problems
inherent in the
CDA. These defenses, however, have been criticized because they are not
available for the
majority of Internet users given the current technology.
The statutory defense in Oklahoma hinges on knowledge of the "character and
content" of
the material" and of the age of the minor. It provides a defense for defendants
who can show
they attempted to verify the minor's age. "[A]n honest mistake, shall
constitute an excuse from
liability pursuant to this act if the defendant made a reasonable bona fide
attempt to ascertain the
true age of such minor."
The statute defines "reasonable bona fide effort" as
an attempt to ascertain the true age of the minor by requiring production
of a
driver's license, marriage license, birth certificate or other governmental
or
educational identification card or paper not relying solely on he [sic]
oral
allegations or apparent age of the minor.
The only defense allowed under the Virginia statute is for state employees
who access
sexually explicit material "to the extent required in conjunction with a bona
fide, agency-approved
research project or other agency-approved undertaking." The statute further
requires that
"[s]uch agency approvals shall be given in writing by agency heads."
CONSTITUTIONAL ISSUES
The paper now examines the constitutional issues raised by the federal
Communications
Decency Act and similar statutes in Oklahoma, New York, and Virginia. Because
they cover
constitutionally protected speech, state laws regulating indecency on the
Internet are subject to
serious constitutional challenge. In constitutional law, strict scrutiny is the
highest level of judicial
review for statutes and other government actions. Under strict scrutiny,
statutes that impede
freedom of speech can be valid only if the action is found to serve a compelling
public interest and
to be narrowly tailored to meet this interest. Two panels of judges applied the
strict scrutiny test
to the CDA and found that the law was unconstitutionally vague and overbroad.
The state
legislation appear to be susceptible to the same criticism.
Compelling government interest
The Supreme Court has said that "[a]t the heart of the First Amendment lies
the principle
that each person should decide for him or herself the ideas and beliefs
deserving of expression,
consideration, and adherence." Also, people should be able to speak freely
about issues of their
choosing, without fear of reprisal because other people may not agree with or
appreciate the
content of their messages. Although certain types of speech can constitutionally
be banned by
the government, indecent speech is protected by the First Amendment. This
protection, however,
is not absolute. The Supreme Court ruled in the landmark case FCC v. Pacifica
Foundation that
the government may regulate indecent speech transmitted by the broadcast media.
But in order
for a governmental regulation of indecency to pass constitutional muster, the
government must
shown that it has a compelling interest in regulating and any regulation must be
accomplished in
the least restrictive manner.
In deciding to grant a preliminary injunction of the CDA, Judge Dolores
Sloviter argued
that although the government has a compelling interest "to shield a substantial
number of minors
from some of the online material that motivated Congress to enact the CDA," it
does not have a
compelling interest in regulating some other online material covered or
potentially covered by the
CDA. In particular, Sloviter cites the following "non-pornographic, albeit
sexually explicit,
material" that could be banned by the CDA: the text of the Broadway play Angels
in America,
which includes graphic portrayals of homosexuality and AIDS; news articles on
female genital
mutilation; and photographs of the sculptures in India of couples copulating in
numerous
positions.
Similarly, the government of New York has a compelling interest in
protecting children
from some of the material covered in its statute. However, the inclusion of
depictions of "actual
or simulated nudity" or "sexual conduct" indicates that the statute could also
be interpreted to
include a wide range of sexually explicit material with educational, scientific,
and literary value.
The fact that the New York statute encompasses material that the government does
not have a
compelling interest in regulating suggests that the statute will fail this part
of the strict scrutiny
test. The ACLU and the New York Civil Liberties Union filed a motion in March
1997 for a
preliminary injunction of the statute on behalf of the American Library
Association and 14 other
plaintiffs. The groups said the law is an unconstitutional content-based
restriction on free speech
that would reduce adult communications on the Internet to levels acceptable for
a six-year-old.
The Oklahoma statute covers obscene speech, which the Supreme Court has
found has no
First Amendment protection. Therefore, the issue with this law is not whether
the government
has a compelling interest to regulate obscene speech; it clearly does. The
question is whether this
new law that bans obscene speech to minors, but calls such speech "harmful to
minors," will be
applied to speech outside the Supreme Court's definition of obscenity.
The Virginia law prohibits state employees from accessing sexually explicit
material on
state-owned computers. Although the Supreme Court has ruled that the government
has a
compelling interest in protecting minors from certain types of sexually explicit
speech, it has not
ruled that the government has an interest in prohibiting adults from accessing
such material. Any
governmental interest in this area would perhaps be outweighed by the First
Amendment
presumption that prior restraints are unconstitutional.
Least restrictive means
The Supreme Court ruled in Sable Communications of California v. FCC that
in order to
regulate constitutionally protected speech, the government must not only show a
compelling
government interest, but it must also accomplish any restrictions in the least
restrictive manner.
In other words, the law must be narrowly tailored to meet the government's need.
If there are
viable and effective alternatives to government regulation, the government's
efforts to regulate
will most likely be found unconstitutional. Accordingly, the Supreme Court
ruled in Sable that
the government could not ban indecent telephone messages (also known as
"dial-a-porn") because
there were indeed viable and effective alternatives to the government ban.
Similarly, in ACLU v. Reno, the CDA was found not to be narrowly tailored.
Instead,
the court found that the statute was overbroad, intruding on a substantial
category of protected
speech for adults. The court suggested there are viable alternatives to a ban
on Internet
indecency, including computer software designed to filter out objectionable
material. The court
also said the government should accomplish its goal of protecting children from
sexually explicit
material on the Internet by vigorously enforcing existing obscenity and child
pornography laws.
On its face, the New York law appears likely to be found unconstitutionally
overbroad
because of its similarity to the CDA. However, there is an important difference
between the two
statutes that may allow the New York statute to pass constitutional muster. In
particular, the
statute states that
[I]t is an affirmative defense that the persons to whom allegedly obscene
or
indecent material was disseminated . . . consisted of persons or
institutions having
scientific, educational, governmental or other similar justification for
possessing,
disseminating, or viewing the same.
The Oklahoma statute, however, takes a much narrower view of "harmful to
minors."
Therefore, it is narrowly tailored, but as mentioned previously, it may
duplicate existing laws.
The Virginia statute uses the broad term "sexually explicit material." It
is likely to
encompass a great deal of material with educational, scientific, and literary
value, but this
overbreadth is tempered somewhat by the law's limitation to state employees
using state-owned
computers. The Virginia law may, however, constitute an unconstitutional prior
restraint which
would result in chilling speech by certain state employees, including university
professors,
researchers, and social workers. The ACLU of Virginia plans to challenge this
law as a prior
restraint on protected speech and an impermissible restriction of First
Amendment rights. The
ACLU is preparing to file federal and state lawsuits against the Virginia
statute on behalf of six
plaintiffs who are university researchers.
LEGAL FRAMEWORK OF INTERNET CONTENT REGULATION
Although the electronic media enjoy First Amendment protection, they are
subject to
content-based restrictions that would be unconstitutional if applied to the
print media. Not all
restrictions on the electronic media, however, can pass constitutional muster.
In the early stages
of the development of cyberspace law, legislators have tended to apply the
broadcast framework
to cyberspace. At the same time, the courts have been less sanguine about
simply transferring
this framework to the new medium. This section examines the rationales for
applying the
broadcast model of indecency regulation to the Internet by tracing a series of
indecency
regulation cases, analyzing the legal reasoning underlying the courts'
decisions, and discussing
in what ways these decisions are relevant to cyberspace regulation.
In FCC v. Pacifica Foundation, a landmark media regulation case based on a
radio
listener's complaint about a broadcast of George Carlin's "Filthy Words"
monologue, the
Supreme Court ruled for the first time that the government has the power to
regulate indecent
speech without impinging on First Amendment rights. In its decision, the Court
acknowledged
the differential constitutional protection granted to the various media, stating
that "it is
broadcasting that has received the most limited First Amendment protection."
The Court cited
two characteristics of broadcast media that made it more susceptible to
government regulation:
(1) its "uniquely pervasive presence" and; (2) its unique accessibility to
children, "even those too
young to read." Writing for the Court, Justice Stevens implicitly recognized
the limitations of
government regulation of indecency. Stating that "context is all-important" in
the decision to
regulate, Stevens listed several variables that may influence the decision,
including the time of day,
the context of the program in which the "indecent" speech is used, and
differences between radio,
television, and other media. The Court's reasoning in Pacifica can be summed up
as the
"nuisance rationale" in which the context of the speech is an essential element
in determining
government's power to regulate.
Attempting to apply the Pacifica rationale to cyberspace, as the drafters
of the CDA
did, reveals serious differences between the two media. The two characteristics
of broadcasting
used by the Court to justify its regulation of radio and television simply do
not exist in cyberspace,
at least not to the extent that they do in broadcasting. The broadcast media
were viewed by Court
as pervasive because
indecent material presented over the airwaves confronts the citizen, not
only in
public, but also in the privacy of the home, where the individual's right
to be let
alone plainly outweighs the First Amendment rights of the intruder.
In the view of the Court, radio and television broadcasts are pervasive and
intrusive. Unlike
broadcast media, however, the Internet currently has a more limited presence in
private homes,
and the individual user has a high degree of control over the content that he or
she views. The
second characteristic, accessibility to young children, though present, is
tempered by the fact that
the Internet is an interactive medium, unlike radio and television. It is
difficult to navigate
cyberspace without some reading ability and basic computer skills.
Consequently, cyberspace
cannot intrude on the youngest children in the ways that television and radio
can.
The CDA's drafters were also guided by another Supreme Court case, Sable
Communications v. FCC, in writing the federal ban on indecency in cyberspace.
Although the
Court ruled against the FCC in this dial-a-porn case, it affirmed that the
government has a
legitimate interest in shielding minors from indecent material. The government
may ban indecency
provided it does so "by narrowly drawn regulations designed to serve those
interests without
unnecessarily interfering with First Amendment freedoms."
In the end, Sable did not bode well for the CDA proponents. Judge Dalzell
in ACLU v.
Reno interpreted the Sable decision that the dial-a-porn ban was
unconstitutional as a narrowing
of Pacifica. Dalzell pointed out that the Sable Court found Pacifica an
"emphatically narrow"
holding arising out of the "unique attributes of broadcasting." Such a reading
of Pacifica
clearly suggests that the government's justification for regulating the
broadcast media does not
necessarily translate into a justification for regulating other media.
Also, Sable ruled that to be found constitutional, indecency regulations
must: (1) be
narrowly drawn and; (2) not limit adults to speech that is only suitable for
children. The Court
concluded that:
Because the statute's denial of adult access to telephone messages which
are
indecent but not obscene far exceeds that which is necessary to limit the
access of
minors to such messages, we hold that the ban does not survive
constitutional
scrutiny.
In Sable, the Supreme Court asserted that the government could not limit adults
to material that is
fit only for children, when other solutions exist for keeping the material out
of the reach of
children.
The Supreme Court in Turner Broadcasting System, Inc. v. FCC declined to
adopt the
broadcast rationale for cable television, in effect implicitly limiting further
the reach of the
Pacifica decision. In Turner the Court ruled that cable television possessed
the same First
Amendment shield as print media. Judge Dalzell interpreted the Turner decision
as both an
indication of the erosion of Pacifica's reach and a confirmation that "the
analysis of a particular
medium of mass communication must focus on the underlying technology that brings
the
information to the user." John Zelezny noted that the Supreme Court's ruling in
Turner
"suggests that full First Amendment protection against regulation should apply
to the Internet."
Also useful in defining the framework of Internet regulation is a Court of
Appeals case in
which the court said the Pacifica case is not applicable to cable television
because of significant
differences between cable and over-the-air broadcasting. The court ruled that
cable television is
not pervasive and does not intrude into the home; rather, the subscriber must
make an affirmative
decision to receive cable. Also, cable television is not as accessible to
children as broadcast
television because parental controls are available (such as a choice of cable
services and
lockboxes). The Internet is arguably even less pervasive and less accessible to
children than
cable television. Therefore, it cannot constitutionally be subject to
governmental indecency
prohibition.
The years since Pacifica have witnessed a series of cases in which the
courts interpreted
Pacifica narrowly and in effect strengthened First Amendment protection for
cable television and
other non-broadcast media. Sable Communications v. FCC established that the
government can
only regulate indecent "dial-a-porn" communications "by narrowly drawn
regulations designed to
serve those interests without unnecessarily interfering with First Amendment
freedoms."
Turner demonstrated the Court's refusal to apply the rules of broadcast to cable
television,
indicating that the nature of the medium is of primary importance in determining
the
constitutionality of indecency regulation. Similarly, Cruz established that the
broadcast model
of regulation does not apply to cable because of significant technological
differences.
Cumulatively, these cases suggest that government attempts to regulate the
Internet based on the
Pacifica model will likely be found unconstitutional.
SUMMARY AND CONCLUSIONS
To summarize, statutory analyses of legislation in New York, Oklahoma, and
Virginia
reveal that legislators have taken a wide range of approaches to regulating
indecency in
cyberspace. The New York statute closely resembles the CDA, except that it
adopted the
narrower "harmful to minors" standard and included some additional defenses.
The Oklahoma
law also uses the "harmful to minors" standard, but defines it narrowly, in the
same terms used in
the Miller definition of obscenity. Virginia's statute covers the broadest
range of material
("sexually explicit"), but is limited to state employees using state-owned
computers.
The constitutional issues raised by the state legislation reflect the
divergent language and
scope of the laws. Because the Oklahoma law regulates obscenity, it does not
pose constitutional
problems. The New York and Virginia laws, however, attempt to regulate speech
protected by
the First Amendment. To be constitutional, these statutes must serve a
compelling government
interest and they must be narrowly tailored. The constitutionality of the New
York statute may
rest on the court's interpretation of the "harmful to minors" standard, which is
generally regarded
as narrower than the indecency standard. Specifically, is "harmful to minors"
unconstitutionally
vague? If not, is it too broad? If the courts answer in the affirmative to
either of these questions,
the statute is likely to be struck down. In addition to these types of issues,
the Virginia law raises
the question of the constitutionality of prior restraints.
The CDA and the state legislation examined in this paper represent
governments' first
efforts to regulate content in this new and changing medium. Congress and the
state legislatures
have attempted to apply the broadcast model of regulation to cyberspace. Such
attempts are
perhaps an inevitable stage in the growth of the Internet. In the three years
since the advent of the
World Wide Web made cyberspace widely available to the public, the Internet has
rapidly
developed into a communications medium with widespread political, social,
economic, and
educational impact. Cyberspace law, however, is in its infancy and struggling
to keep up with the
burgeoning communications technology.
The new technology promises to converge the separate media of cable
television,
telephone, and computer to deliver personalized, interactive, multimedia
communications
services. Such a convergence has far-reaching, perhaps revolutionary,
implications for media
law. One possible outcome of this media convergence is a rethinking of the
prevailing model of
content regulation in which the print media enjoys greater First Amendment
protection than the
electronic media. However, in the present regulatory climate, it is difficult
to predict whether the
Internet will be given the full First Amendment protection it deserves.
Although the Supreme
Court has refused to apply the broadcast model of content regulation to
nonbroadcast media,
Congress and some state legislatures are eager to regulate indecency, not just
obscenity, on the
Internet.
Congress and the legislatures of New York, Oklahoma, and Virginia are the
first
governing bodies to actually pass such regulation. The Congressional effort was
found
unconstitutional by two panels of federal judges, and enforcement of parts of
the Communications
Decency Act was enjoined. In March, the Supreme Court heard oral arguments in
the appeal of
the preliminary injunction in ACLU v. Reno. Thus, the Supreme Court has its
first opportunity to
consider how traditional free speech principles should be applied to the
Internet. Meanwhile,
states like New York, Oklahoma, and Virginia are proceeding with their own
attempts to regulate
the Internet with statutes similar to the CDA. Whether the differences between
the CDA and
these efforts will convince the courts that these statutes are constitutional
remains to be seen.
The future of indecency in cyberspace will be determined largely by the
Supreme Court's
ruling in Reno v. ACLU. CDA opponents were optimistic after oral arguments in
March, when
the justices' questions indicated an appreciation of the Internet's distinctive
qualities as a medium,
qualities that separate it from broadcast and cable where the government is
allowed to restrict
some speech. One of the most compelling advocates of the Internet to emerge
from the CDA
litigation has been Judge Dalzell, who called the Internet "the most
participatory form of mass
speech yet developed." As such, it deserves the same freedom enjoyed by the
print media.
Extending full First Amendment protection to the Internet will not only protect
free speech in
cyberspace, but will also help to diversify and democratize the "marketplace of
ideas," giving this
longstanding ideal of First Amendment theory the chance to become a reality.
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