Evaluating the New Marketplace of Ideas
Evaluating the New Marketplace of Ideas: An Examination of Cyberspace, the CDA &
the Postmodern Condition
College of Communications
Penn State University
308 James Bldg.
University Park, PA 16802
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The reasoning and theory behind overturning the Communications Decency Act
(CDA) reflects a new potential marketplace of ideas. Nevertheless, the CDA is
an example illustrating the difficulties applying current law to the Internet, a
medium which creates its own virtual borders and standards. Despite the
liberating features of cyberspace questions remain as to how it will contribute
and shape the public sphere. If the Internet is a reflection of a postmodern
medium and era than one may question how modern methods of law and reason apply.
The inherent features of computer-mediated communication provide new legal
topics of debate whose subject matter outdate previous regulation. Such an
example, the Communications Decency Act (CDA) restricts the transmission of
pornography in cyberspace by outlawing obscenity and criminalizing indecent and
patently offensive communication to minors (those under 18 years of age). In
passing its legislation, Congress was trying to find a solution to the
prevalence of explicit sexual material, harmful content, and child
abductions resulting from the Internet. Upon review, a federal, three-judge
district court panel in Philadelphia found the indecency and patently offensive
provisions of the CDA to be unconstitutional. Last summer, the Supreme Court
endorsed the panel's decision, overwhelmingly striking down the CDA as an
infringement on the speech rights of adults.
The Supreme Court's backing of the district court's panel ruling in ACLU v.
Reno may potentially shape freedom of speech in cyberspace for years to come.
Currently, many users and commentators contend content on the Internet should be
regulated on more purist and traditional grounds of our First Amendment. In
particular, scholars believe we are at a time when it is conducive to resort to
traditional speech freedoms enjoyed by the press. To them, convergence and
cyberspace's liberating qualities more or less mandates the adoption of the
print model for regulating speech on the Internet.
Whether adopting old or creating new laws, one must be able to devise and apply
theory to the ever-expanding global village of cyberspace. Answers to the
larger sociological issues of privacy, encryption, free expression, community
and identity formation on the Internet require careful analysis and grounding.
Clues to answering the above issues, specifically with respect to freedom of
speech, lie in the legal assessment of the CDA and the Internet. This paper
discusses how the marketplace of ideas theory is applied to the Supreme Court's
Reno v. ACLU decision and the Internet.
Examining the judicial views of the marketplace of ideas in cyberspace offers
an insightful exploration of how unique the Internet as compared to traditional
media and lines of communication. After examining the background and provisions
of the CDA, marketplace of ideas first amendment theory, and incorporation of
this theory in CDA litigation, this paper will shift dramatically to discuss the
future of the marketplace of ideas in cyberspace. In the end, an argument will
be presented, contending that in order to achieve an ideal exchange of
information a whole new paradigm is needed that realizes the postmodern and
technological characteristics of cyberspace.
Background & Provisions of the Communications Decency Act
Although the CDA's creators may have had good intentions and aimed to provide
solutions to controversial debates over issues like pornography, the Act is
over broad and fails to pass constitutional muster. Section 502 of the
Telecommunications Act of 1996, the Communications Decency Act criminalizes
obscene and indecent communications on the Internet. The large bill, a rewrite
of the 1934 Communications Act, deregulates the telephone, cable television and
broadcasting industries, and regulates content in cyberspace. Senator
James Exon (D-Neb), co-sponsor of the bill, believes the CDA is necessary in
order to protect children from receiving "the worst, most vile, most perverse
pornography...only a few click, click, clicks away."
Exon isn't the only advocate coming to terms with pornography on the Internet.
Groups like the Christian Coalition and Enough is Enough have lobbied heavily to
crack down on proprietors of obscenity and indecency on computers. Enough is
Enough Leader Donna Hughes Rice explains her viewpoint, stating, "A lot of
people assume we are talking about pictures from Hustler or Penthouse. What
were talking about would make all that look like Donald Duck." Although its
validity has been completely disputed, the well-publicized Carnegie Mellon
University study of obscene, sex-related traffic also bolstered support for
Exon's legislation. Moreover, stories of child abductions through on-line
communications and related Justice Department crackdowns demonstrate further
dangers for children on the Internet.
Specifically, the Communications Decency Act amends Title 47, United States
Code, Section 223. This section prohibits obscene and harassing phone calls,
allows telephone services carrying indecent content to be regulated and
prohibits these same services from providing legally obscene content.
Although the term "telecommunication devices" is not clearly defined, the CDA
nevertheless changes the scope of current legislation from telephones to
"telecommunication devices," including computers and the Internet. It also
imposes a fine of up to $250,000 and a possible two-year jail term to anyone who
knowingly permits a "telecommunications facility" under his or her control to be
used for the transmission of obscene or indecent communications. The
prohibition of indecency only bars sending materials "to any person under 18
years of age." Historically, with regard to telephony, common carriers are
'neutral conduits' and are not responsible or liable for controlling content
over their phone lines. On the other hand, Internet service providers and
on-line services like Prodigy are not considered common carriers and therefore
may be held liable for content.
The CDA also imposes the same punishment on those individuals who use a
telecommunications device to harass another individual. Specifically, this
harassment may include the making, creating, soliciting or initiating of:
any comment request, suggestion, proposal, image, or other communication which
is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,
threaten or harass another person.
This provision covers not only harassment but also includes penalties if another
person annoys another individual. Overall, the CDA expands telephone coverage to
include computers, adds new provisions beyond harassment, and criminalizes
obscene and indecent communications (to those under 18 years of age).
Besides indecency and obscenity, the CDA also criminalizes speech found
"patently offensive." In order to fall under this categorization, the
communication must "in context, depict or describe, in terms patently offensive
as measured by contemporary community standards, sexual or excretory activities
or organs." This applies to individuals who knowingly use an interactive
computer service to send or display material to persons under 18 years of
age. It also applies to persons who knowingly permit a telecommunications
facility to be used to transmit or receive "patently offensive" material.
The CDA also contains special liability exemptions. First, Internet service
providers not involved in the creation of content may be excluded from liability
for indecent and obscene communication. Second, those who act in "good faith"
and demonstrate a reasonable effort to prevent indecent and obscene
communications may also be exempted from liability. This exemption more than
likely covers a system operator (SYSOP) on a Bulletin Board System (BBS) or an
on-line service like CompuServe. For instance, if an on-line service is
using blocking mechanisms like filters, screening software and/or monitors, the
service would probably be exempted under liability, as any indecent or obscene
material would be viewed as having been sent over its networks unknowingly.
Because most commercial services have the resources to provide a "good faith"
effort, they would most likely be exempted from liability. On the other hand, a
small, independent BBS SYSOP may have a tough time meeting the test of the "good
CDA faces litigation: ACLU v. Reno
Upon passage of the Telecommunications Act of 1996, two federal challenges
were filed to block the CDA. As a result of the first injunction, a
district court judge issued a temporary restraining order on the indecency and
patently offensive portions of the Act. The plaintiffs, led by the ACLU,
claimed the CDA unnecessarily restricted adult access to indecent speech -
speech that is protected under our First Amendment. After review, a
three-judge panel in Philadelphia ruled these portions unconstitutional and
blocked the law's enforcement. In the opinion, the panel adamantly supported
free speech in cyberspace. U.S. District Judge Stewart Dalzell writes, "as the
most participatory form of mass speech yet developed, the Internet deserves the
highest protection from governmental intrusion." Because of a special
appeal process written into the law, the Supreme Court reviewed the panel's
decision in ACLU v. Reno.
Supreme Court's Verdict on the CDA: Reno v. ACLU
In 1998, the Supreme Court found the indecency and patently offensive
provisions, 47 USC 223 (a)(1) and (d) respectively, to be unconstitutional, thus
affirming the holding of the federal panel. While creating criminal
liability for knowingly transmitting such content to minors, the Court
determined the above CDA provisions are not sufficiently tailored to meet the
First Amendment requirements of a content based law. In application, the basis
of having to know whether or not a recipient of material on the Internet is of
eighteen of years of age would severely restrict adult speech because full-proof
and efficient mechanism aren't widely available which may readily identify the
age of users. While credit card or adult identification may be used as
affirmative defenses, many users do not have the economic resources to implement
In addition, ambiguity surrounding what constitutes "indecency" and "patently
offensive" speech may in effect chill users from expression. The Court also was
unsatisfied with the CDA for its failure to: allow for parental consent, limit
the provision to only commercial transactions, and require patently
offensive material to lack socially redeeming value. The Court refused to
apply broadcast precedent because the Internet, unlike broadcasting, is not
spectrum constrained nor pervasive. However, because obscene speech is not
constitutionally protected, the Court severed the term "or indecent" from
Section 223(a), leaving the prohibition on obscenity intact.
First Amendment Theory Concerning the Classic Marketplace of Ideas
One of the challenges facing constitutional and freedom of speech scholars is
to define and interpret what is meant by our First Amendment - "Congress shall
make no law...abridging the freedom of speech." Unfortunately, there are no
clear cut answers to such a question, only a body of theory and jurisprudence
which has been developing for centuries. Although divergent beliefs exist, many
scholars agree that freedom of speech is an important underpinning and a vehicle
for decision making in the democratic political process. During the last
decade, the popularity of the classic marketplace of ideas theory has taken
center stage. The following pages provide discussion of this laissez-faire
approach to First Amendment theory and supply grounding to examine its presence
in CDA litagation.
Milton - "Self-Righting Principle" Against Licensing
In his 1644 work Aeropagitica, poet John Milton meticulously detailed why
the English government should not license the press or publishing. In essence,
Milton refuted the power of government officials to pre-approve all written
materials before they were published and disseminated to citizenry within the
borders of England.
Milton relied on two essential points against licensing. First, by making
material available to citizens, individuals can become more educated, and by
sorting out right and wrong in their own minds, they may ultimately find the
truth. However, this truth-seeking process may be severely impaired if citizens
are unable to hear all points of view - a likely outcome of any licensing or
censorship. Secondly, Milton believed that the most fundamental right we have
is liberty - "give me liberty to know, to utter, and to argue freely according
to my conscience, above all liberties."
Throughout his work, Milton explored the benefits of what is known today as
"the self-righting principle." Milton contended we must tolerate opposing
viewpoints even if it goes against the beliefs of our government. If we allow
false points of view, it only reaffirms the truth. Additionally, under a
licensing scheme, if we believe something is correct, when in reality it is
false, we may never know the actual truth. Milton sincerely believed that our
government and citizens are only more powerful if there is a healthy and
well-informed debate, something which would be impossible under licensing of the
Milton's views are well-illustrated. In one instance he proclaimed God
make man capable of his own decisions:
For those actions which enter into a man, rather than issue out of him, and
therefore defile not, God uses not to captivate under a perpetual childhood of
prescription, but trusts him with the gift of reason to be his own chooser.
As expressed above, Milton believed man possesses the liberty and intellectual
capacity to determine what is right and wrong and what course of action is
proper and improper. God does not hold a tight reign over man like a parent
holds over a child. In order to make well-reasoned decisions, man must be free
to discover the truth and receive all types of viewpoints on all types of
issues. Even if licensing were allowed to shape decisions for mankind, Milton
believed licensers themselves would probably be corrupt and err in their
judgments. Most of all, licensing itself would deprive the rest of the country
of individual liberty.
In summation, Milton has had a significant impact on the way we think about
freedom of speech and liberty. Ultimately, Milton contended man should have the
liberty to determine which speech is false and which speech is true. In his
eyes, truth is more likely to arise out of unfettered discussion than out of
repression. This "self-righting principle" and emphasis on truth is an
undercurrent to the marketplace of ideas theory that was advocated in a
dissenting opinion by Justice Holmes in Abrams v. United States.
Mill - Liberty of Thought, Opinion and Action
Political writer John Stuart Mill is best known for his work On Liberty,
in which he philosophically explored the liberty of individuals to have freedom
of thought, opinion and action in society. Mill expanded upon Milton's idea of
the importance for individuals to make their own decisions and search for truth
without governmental interference. However, this liberty for Mill reaches a
limit - that limit being when an individual jeopardizes others safety through
his or her action, inaction or opinion.
Mill attempted to discover the proper societal (collective) interests over the
individual as related to action. He purported a "very simple principle" of
self-protection as the determinant for the limit of government intervention.
Societal interference is justified in private, individual affairs to prevent
harm to others (the collective). In other words, when individual action
jeopardizes the safety and well-being of another citizen(s), government can
justifiably step-in and play referee. Although his argument, on the surface,
seemingly called for a paternal hand of strong guidance and oversight by
government, including that of the press, Mill believed strongly in the freedom
of thought and opinion of individuals. Nonetheless, government may impede
freedom when individual action is likely to result in harm to others.
To bolster his argument for freedom of thought and opinion, Mill sighted three
dangers to the suppression of opinion. First, suppression of opinion may blot
out the truth, even if the opinion in question is conventionally far-fetched.
Second, there is no harm in hearing and refuting a false opinion; instead, it
can only strengthen truth, convictions and conduct. Third, no opinion, no
matter how outrageous or correct, is completely true or false. Partial truths
from opinions may be useful to develop intellect, improve truth and,
consequently, individuals may make better decisions about their individual and
collective actions. Mill makes a compelling case for freedom of thought and
opinion when he writes:
Not the violent conflict between the parts of the truth, but the quiet
suppression of half of it, is the formidable evil; there is always hope when
people are forced to listen to both sides; it is when they attend to only one
that errors harden into prejudices, and truth itself ceases to have the effect
of truth by being exaggerated into falsehood.
Mill's point is that there is much to be valued and learned when citizens are
free to educate themselves and discover truth. The only way this is possible is
for government (the collective) to have no control on freedom of thought and
Although the above condition is desirable, Mill acknowledged that freedom of
opinion is not an absolute, because there are times when opinions are likely to
result in harm to others. Like freedom of opinion and thought, Mill believes
individual action is desirable. Yet, action, given the very simple principle
harm to others, should be more restricted than opinion. Mill called for a heavy
reliance on individuals to cultivate themselves - their personality,
decision-making skills, morals, diversity, etc.- because he saw this as an
important characteristic for the progress of the state.
Mill devised two maxims to apply his theories:
First, that the individual is not accountable to society for his actions in so
far these concern the interests of no person but himself. ... Secondly, that for
such actions as are prejudicial to the interests of others, the individual is
accountable and may be subjected either to social or to legal punishment.
Mill supplied three objections to governmental interference that fall outside of
liberty: individuals can do better than government; individuals might not make
the better decisions than government, but it is a valuable thought process and
educational experience for them; and lastly, perhaps the action to be taken will
only strengthen the already strong powers of government. In addition, Mill
thought that a government which does too much for its citizens is doing a
disservice, not a service, "the worth of a State in the long run, is the worth
of the individuals composing it."
Undoubtedly, Mill's work supports individual expression and freedom of thought
and opinion. Mill supported the notion that individuals should be allowed to
choose and process what they want to read and hear because it expands their own
capabilities and understanding of the world around them, thereby increasing
their decision-making skills and curiosity for truth. Like Milton, Mill's
endorsement and rationale for liberty of thought and discussion is similar to
Holmes's marketplace of ideas theory, whereby truth will prevail among
unfettered speech in the marketplace.
Holmes - Classic Marketplace of Ideas
Oliver Wendell Holmes, a Supreme Court justice, significantly influenced the
legal and theoretical shaping of our First Amendment in the 20th Century.
Holmes is the justice who brought us the "marketplace of ideas" theoretical
basis to the First Amendment in a dissenting opinion in Abrams v. United
States. Oddly enough, just months earlier, Holmes wrote the opinion for
the unanimous majority opinion in Schenck v. United States, introducing us
to, what would be used by the courts as justification for suppression of speech
and debated by scholars for sometime, the clear and present danger test. For
these two opinions, we owe Holmes a debt of gratitude, for he encouraged and
fostered the development of First Amendment theory, application and debate.
Legal scholar Jeremy Cohen provides analysis of Schenck and the clear and
present danger test. Although Cohen believes that the Schenck decision
had, at that time, more to do with legal jurisprudence and context than with
the First Amendment, he nonetheless acknowledged the applicability of the clear
and present danger test. The clear and present danger test provided courts with
guidelines that could be applied to free speech cases involving sedition,
something that was enforced heavily during WWI by the Espionage Act of 1917 and
Sedition Amendment of 1918.
An excerpt from Schenck illustrates the clear and present danger test:
The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. It does not even protect a man
from an injunction against uttering words that may have all the effect of force.
The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has the right to
The interpretation of this test is something that scholars, including Holmes,
Meiklejohn, Chafee and the courts would debate for sometime to come.
Courts have used the test to restrict speech that causes or may (have a tendency
to) cause a clear and present danger to the government's interest in prohibiting
After Schenck, the Court was presented with a line of sedition cases. As
Cohen contends, it was in Abrams that "Holmes began to consider and to discuss
the implications of the congressional legislation (of sedition)."
Additionally, Cohen suggests that Holmes's dissent was an expansion and
clarification of his clear and present danger test. Whatever his intentions,
Holmes's dissenting opinion demonstrates the classic marketplace of ideas
To allow opposition by speech seems to indicate that you think the speech
impotent ... When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached in the free
trade of ideas - that the best of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only
ground upon which their wishes safely can be carried out. That at any rate is
the theory of our Constitution. It is an experiment, as all life is an
experiment. ... I think we should be extremely vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught with
Thus, under the classic marketplace of ideas theory, the responsibility of
government is to keep its hands off speech, because the market of political
ideas and speech will self-correct and sustain itself. Holmes's theory is more
or less a laissez-faire idea. Only under a clear and present danger will
governmental intervention on freedom of speech and political thought be allowed,
and only to a minute degree.
Holmes's expression of the classic marketplace of ideas theory in Abrams is a
unique, historical timepiece of First Amendment theory. In his dissent and
clarification of the clear and present danger test, Holmes espoused that a free
exchange of ideas in the market will lead to truth (the self-righting
principle). Today, his theory is omnipresent, as citizens have plentiful sources
of outlets then ever before, including the Internet, through which unfettered
exchange of truth may take place. His clear and present danger test and
marketplace of ideas theory also led the way for new discussions,
interpretations and applications of First Amendment law and theory.
Barron's Right of Acess & Fiss's Public Debate Principle - Correcting Market
Legal scholars Jerome Barron and Owen Fiss contend that there is market failure
in Holmesian free exchange and trade of ideas. The term market failure
refers to an economic concept relating to outcomes of a market under a free
enterprise system. Governmental intervention is warranted only when the market
is unable to maximize public utility. In theory, markets in fact do not fail;
rather, people do not like the outcomes of a market (i.e., the problems which
may result from monopoly power and abuses). Today, it is a common
occurrence for government to regulate markets to protect the consumer and public
from undesirable market outcomes, even in matters relating to speech. Barron
and Fiss are concerned with correcting the inadequate outcomes that occur in an
unfettered marketplace of ideas.
Barron did not like the outcome of the mass media marketplace. He believed
newspapers failed to carry wide-ranging viewpoints and quality of debate on
political issues. Because not every citizen has the capital and resources to
own a printing press and compete with a major daily, Barron called for the First
Amendment to play an affirmative role, guaranteeing citizens and minorities a
right of access to city dailies. Barron was concerned not only with
newspapers, but also with the concentrated power that existed within the mass
media and advocated the practice of the fairness doctrine in broadcasting.
In Barron's view, the mass media had become usurped to influence and structure
narrow public debate. Case law, such as New York Times v. Sullivan  and
Holmes's marketplace of ideas offered the mass media powerful editorial control.
Barron explained the problem with public debate as disseminated by the mass
To those who can obtain access to the media of mass communications first
amendment case law furnishes considerable help. But what of those media whose
ideas are too unacceptable to secure access to the media? To them the mass
communications industry replies: The First Amendment guarantees our freedom to
do as we choose with our media. Thus the constitutional imperative of free
expression becomes a rationale for repressing competing ideas.
An overriding concern for Barron was the that fact the mass media were becoming
too influential in the lives of Americans and the marketplace of ideas. With
the shrinking number of competing dailies and the limited number of broadcast
stations, Barron believed mainstream ideas, not diversity, were well
Barron's right of access received affirmation and reached its high-water mark
with the Supreme Court's upholding of the fairness doctrine in Red Lion
Broadcasting v. FCC. Barron himself argued for access and right of reply
to newspapers in Miami Herald v. Tornillo. Despite his efforts, the Court
upheld the editorial control and discretion of the press by refusing to issue a
right of reply mandate in Tornillo. Over time, the FCC repealed the fairness
doctrine was for its lack of success in bring controversial issues to the table
and its confliction with the First Amendment and public interest. Despite
the repeal of the fairness doctrine, Barron's access theory - that our First
Amendment should take an active role in fostering the quality of public debate
in the mass media - remains a valuable contribution to First Amendment theory .
While Barron encouraged the First Amendment to be used as an access vehicle for
viewpoints in the mass media, Fiss advocated his "public debate principle."
Fiss was worried about the distortion of public debate that can occur when
social power is distributed unequally. Fiss recognized Harry Kalven's Free
Speech Tradition, whereby freedom of speech guaranteed by the First Amendment is
protection of autonomy, acting more or less like a shield around the street
corner speaker. This autonomy and purpose of free speech is to preserve
democracy and be "a means or instrument of collective self determination."
But Fiss saw the costs of upholding autonomy in the modern state of mass media
and society jeopardizing public debate because of the scarcity of outlets
I think it is fair to say that in a capitalist society, the protection of
autonomy will on the whole produce a public debate that is dominated by those
who are economically powerful. The market-even one that operates smoothly and
efficiently-does not assure that all relevant views will be heard, but only
those that are advocated by the rich, by those who can borrow from others, or by
those who can put together a product that will attract sufficient advertisers or
subscribers to sustain the enterprise.
To correct the marketplace of ideas, Fiss, like Barron, believed the government
should play an active role in ensuring that there would be robust public debate.
After all, Fiss believed editorial and programming decisions have "little to do
with the democratic needs of the electorate." For Fiss, this meant
organizations like CBS would have to give up part of their own autonomy. In
theory, Fiss contended that the laissez-faire market of speech was inconsistent
with government's role in regulating other economic markets. Not only was his
"public debate principle" a way to ensure public debate, but it also served to
abate another of Fiss's concerns - finding support to curtail the deregulatory
trend of the 1980s.
Together, Barron and Fiss advocated along similar lines by attempting to
correct the ill-fated outcome of the marketplace of ideas. Whether by
encouraging the press to provide a wider array of viewpoints, or by allowing the
government to decide what was missing on CBS, both believed in fostering public
debate. Their theories asked the First Amendment to take on an affirmative
role in public debate, something which was relevant and pertinent to the
increasing powers of the modern electronic mass media.
de Sola Pool - Electronic Communication Revert to Print Model Freedoms
Political science and legal theorist Ithiel de Sola Pool implicitly embraces
the marketplace of ideas theory when he advised us to revert to the print model
tradition when regulating new electronic media and technologies. In his book,
Technologies of Freedom, de Sola Pool provided a historical analysis of
media regulation, from the modern day press to the prospects of electronic
publishing. Although written nearly 15 years ago, de Sola Pool warned against
the dangers of resorting to broadcasting as the method and basis for governing
new electronic forms of communication:
The mere growth of new media will not reverse the precedents that were set and
frozen into law in the early years of radio communication. Indeed, there is a
strong tendency indeed to carry over to the new media, which do not suffer from
the special constraints of spectrum shortage, unnecessary and ill-considered
precedents of regulation that were set solely on illusory basis of a supposedly
exceptional scarcity for broadcasting.
If the new media are regulated in such a matter, de Sola Pool believed these
technologies will not be able to reach their full free speech-enhancing
Ithiel de Sola Pool was highly optimistic about the promise of new
technologies. He called networked computers the "printing presses of the
twenty-first century," contending that many forms of traditionally published
material would be disseminated digitally via computers and electronic networks.
Overall, he foresaw the potential and growth of new technologies:
The technologies used for self-expression, human intercourse, and recording of
knowledge are in unprecedented flux. A panoply of electronic devices puts at
everyone's hand capacities far beyond anything that the printing press could
offer. Machines that think, that bring great libraries into anybody's study, the
allow discourse among persons a half-world apart, are expanders of human
culture. They allow people to do anything that could be done with communications
tools of the past, and many more things too.
To de Sola Pool, electronic materials, such as newspapers, books and pamphlets,
were entitled to receive the same free-flow protections as they did in the print
arena, or alternatively, the free press tradition.
To liberate new digital frontiers, de Sola Pool outlined a set of principles
to instill the highest amount of freedom of speech for electronic communication
technologies. Fundamentally, he contended the "First Amendment applies fully to
all media (both electronic & print)." In addition, "anyone may publish at will"
without the threat of prior restraint. Regulation to curtail freedom of speech
should only be a "last recourse" because "in a free society the burden of proof
is on the least possible regulation of communication." Common carriers must be
required to interconnect and, like government, should not be concerned with what
content is carried on their networks. While advancing these principles for
freedom, de Sola Pool was also hopeful that these technologies would play their
own natural advocacy role:
They fit the free practices of print. The characteristics of media shape what is
done with them, so one might anticipate that these technologies of freedom will
overwhelm all attempts to control them.
Together, with future First Amendment principles and technologies, de Sola Pool
believed the free speech tradition of the press may be resurrected and applied
to future electronic communication. He firmly believed new technologies could
add robust debate to the marketplace of ideas, especially if incubated through
Marketplace of ideas theory apparent in CDA litigation
ACLU v. Reno
Before the panel could listen to arguments and properly evaluate the CDA, the
parties and judges agreed to extensive evidentiary hearings regarding the
evolving and expanding world of cyberspace. Besides testimony from various
experts and government officials, hearings included a live demonstration of the
Internet. Upon consideration of testimony and argument, the panel rendered
an extensive, detailed findings of fact in its opinion. Upon further analysis,
this finding of facts support many of the notions and elements of the
marketplace of ideas.
The panel suggests that cyberspace is a new beast, ready and ripe for two-way
communication of text, video and sound among its self-determining users. The
Internet governs itself, as control is decentralized among its users - "no
single entity - academic, corporate, government, or non-profit - administers the
Internet (fact 11)." The panel determined the World Wide Web (WWW) "was
created to serve as a platform for a global, on-line store of knowledge,
containing information from a diversity of sources and accessible to Internet
users around the world (fact 34)." Thus far, the WWW has become a popular
and successful vehicle for "research, education, and political activities (fact
48)" and to the panel's purpose of review, a vehicle as well for the
distribution of sexually explicit material (fact 82). Overall, the Internet
contains a myriad of viewpoints. "It is no exaggeration to conclude that the
content on the Internet is as diverse as human thought (fact 74)."
Because of the technology and decentralized control of the Internet and its
relatively low barriers to entry, diversity of content is promoted and
encouraged. The panel elaborates on this principle:
The start-up and operating costs entailed by communication on the Ineternet are
significantly lower than those associated with use of other forms of mass
communication, such as television radio, newspapers and magazines (fact 76).
The panel contends disseminating material on the Internet is an easy and
relatively inexpensive way for a speaker to reach large audiences. The panel
found "individuals have a wide variety of avenues to access cyberspace in
general, and the Internet in particular (fact 12)." Users may obtain access
to the Internet publicly through a library or school, or from home through their
own initiatives and resources. These low barriers to entry and ease of
access encourage non-profit organizations and citizens to communicate their
messages and add to public debate. By typing key words into search engines like
Altavista, and through the use of hypertext (point-and-click ability) on the
WWW, individuals may quickly locate public information from around the globe
(fact 44). In addition, the technological features of cyberspace, where
chat rooms, e-mail, and newsgroups are interactive and prevalent, provide
opportunities for individuals to speak and listen to one another (fact 79).
Thus, users may have discussions with other people and may even create
"'virtual communities' that stimulate social interaction (fact 74.)"
In addition to finding the Internet to be a diverse and democratic carrier of
information, the panel contends "communications over the Internet do not
'invade' an individual's home or appear on one's computer screen unbidden (fact
88)." In fact, rarely do images appear accidentally; rather, "the receipt
of information on the Internet requires a series of affirmative steps more
deliberate and directed than merely tuning the dial (fact 89)."
The panel's findings of fact contain significant threads of the marketplace
of ideas and access theories of the First Amendment. The panel is undoubtedly
impressed by the diversity of views and voices on the Internet. Individuals
don't have to own their own a printing press or station to disseminate and
publish information electronically. With comparative ease and access, a large
spectrum of issues and material is available on the Internet. In reality, the
marketplace of ideas and "self-righting principle" is fostered in cyberspace, as
truth will be found among diverse, competing viewpoints and ideas. Of course,
implicit in the assumption is that citizenry is well-represented on the
Internet. While adoption has not reached a consumer mass market (30%), the
Internet continues to grow and is, as stated above, relatively easy to access.
Thus, both Baker's and Fiss's conceptions of correcting market failure are
inapplicable in cyberspace. Stimulating access and public debate is not an issue
on the Internet as it is in the arena of traditional mass media. After all,
conglomerates do not own and control major newspaper dailies and broadcast
stations in cyberspace. Instead, the Internet is more or less controlled by
individual users who, in effect, tend to replicate an unfettered marketplace of
The panel's findings of fact also echo de Sola Pool's foresight and optimism of
the speech enhancing qualities of electronic computer networks. Like de Sola
Pool, the panel contends the technological features of cyberspace foster
democratic participation and diversity. Anyone who has the access and know-how
may publish material on the Internet. In addition, the technology allows
immediate interaction to occur. A library of information may be retrieved
quickly through search engines and hypertext. Individuals may interact with
one another using e-mail, Usenet, listservs and Internet Relay Chat (IRC) to
debate and discuss issues of public importance. Given their findings of the
Internet's relatively low barriers to entry and ease of access, the panel may
agree with de Sola Pool that networked computers (Internet) are "the printing
presses of the twenty-first century." More importantly, the panel's
findings of fact regarding the Internet suggest the new medium may be shaping
itself to allow for democratic participation and traditional free speech
qualities enjoyed by the press.
Many of the same aspects of marketplace of ideas theory evident in the findings
of fact repeat themselves in the opinion of ACLU v. Reno. Chief Judge Dolores
Sloviter and District Judges Ronald Buckwalter and Stewart Dalzell each write
their own opinions. Together, they unanimously find the CDA's indecency and
patently offensive provisions to be unconstitutional. The following pages
will discuss Judge Dalzell's excerpts from the district court's opinion in ACLU
v. Reno. Again, the analysis demonstrates notions of self-fulfillment, freedom,
access, technological optimism and democracy - all undercurrents in a modern
marketplace of ideas.
Dalzell's valuable insight on the state of the marketplace of ideas in
cyberspace contains elements of Holmes, Barron, Fiss and de Sola Pool. After
quoting Holmes's "free trade of ideas" theory in Abrams v. United States,
Dalzell explores the arguments that were raised by Baker in Miami Herald v.
Tornillo. In essence, Dalzell provides Baker's and Fiss's arguments of
market failure. The outcomes of the modern mass media market are dominated by
consolidation and a few deep-pocketed players, and, as a result, do not offer
diverse viewpoints. To correct the market and encourage a diversity of issues
and views, Barron believed it was necessary for the government to step in and
promote access; meanwhile Fiss advocated for government to play an editorial
role in determining the proper levels of public debate in the mass media.
Despite the market failure arguments being raised in Turner and Tornillo, the
Court upheld the First Amendment and editorial right of cable operators and
newspapers. Dalzell concludes these cases demonstrate "the cure for market
dysfunction (government-imposed, content-based speech restrictions) will almost
always be worse than the disease."
In fact, Dalzell suggests the answer to the failed outcomes of the marketplace
of ideas lies within the Internet. "The Internet has achieved the most
participatory marketplace of mass speech that this country - and indeed the
world - has yet seen." His uncompromising support for a Holmesian marketplace
is demonstrated by his striking assertion of government's mishandling of speech
The Government's asserted failure of the Internet rests on the implicit premise
that too much speech occurs in that medium, and that there is speech too
available to the participants. This is exactly the benefit of the Internet.
Dalzell suggests the Internet is the solution to the worries and harmful effects
of a commercialized mass media concerned with bottom lines and profit margins.
Barron's and Fiss's theories are thereby supplanted, as Dalzell offers the
Internet as a medium that can finally achieve a truly diverse marketplace of
Dalzell even uses the marketplace of ideas and de Sola Pool's theory to support
his belief that the print model should be implemented and applied to the
Internet. After all, print receives the most First Amendment protection despite
its unsuccessful achievement of fulfilling the goals of the marketplace of
ideas. Dalzell offers his contention:
If 'the First Amendment erects a virtually insurmountable barrier between
government and the print media,' (Tornillo, 418 U.S. at 259), even though the
print medium fails to achieve the hoped-for diversity in the marketplace of
ideas, then that 'insurmountable barrier' must also exist for a medium that
succeeds in achieving that diversity.
Because the Internet offers individuals the elements espoused by Holmes, it
should enjoy the First Amendment guarantees enjoyed by the press.
Collectively, the panel's opinion incorporates the marketplace of ideas
theory arguments while refuting the indecency and patently offensive provisions
of the CDA. Elements of democratic participation, marketplace of ideas, access,
liberty, self-fulfillment and free expression are prevalent throughout ACLU v.
Reno. In the panel's strongest endorsement of the Internet, Judge Stewart
Dalzell summaries the promise and guarantees of the First Amendment in
The Internet may be regarded as a never-ending worldwide conversation. The
Government may not, through the CDA, interrupt that conversation. As the most
participatory form of mass speech yet developed, the Internet deserves the
highest protection from governmental intrusion. ... Just as the strength of the
Internet is chaos, so the strength of our liberty depends upon the chaos and
cacophony of the unfettered speech the First Amendment protects.
Unanimously, the panel attempts to derail the CDA from ever becoming reality.
In the process, it discovered that there is something entirely different about
the Internet from other media. To the panel, that difference justifies granting
the greatest speech freedom of all.
Reno v. ACLU
In its seven to two defeat of the CDA, the Supreme Court echoed many of the
panel's sentiments on cybespace's unique ability to foster more speech. By
contending that the prevalence of pornography is steering citizens and their
children off of the information highway, the Court believed the government
failed to recognize the new opportunities the Internet affords. Justice
Stevens, with specific reference to the marketplace of ideas, elaborates on this
The dynamic expansion of this new marketplace of ideas contradicts the factual
basis of this contention. The record demonstrates that the growth of the
Internet has been and continues to be phenomenal. As a matter of
constitutional tradition, in the absence of evidence to the contrary, we
presume that governmental regulation of the content of speech is more likely
to interfere with the free exchange of ideas than to encourage it. The
interest in encouraging freedom of expression in a democratic society outweighs
any theoretical but unproven benefit of censorship.
In essence, because the CDA is not sufficiently tailored to meet a compelling
government interesting in shielding minors from indecent and patently offensive
speech, the Court found the provisions would unnecessarily hinder the Internet's
ability to expand the marketplace of ideas. If the CDA was left intact, adult
speech in this new medium would be restricted to what was deemed appropriate for
minors (those under 18 years of age). Such an effect would unduly take away the
liberty of adults to express themselves and reach individual self-fulfillment.
The free trade of ideas would be significantly constrained under the CDA,
potentially discouraging new and current users from experiencing portions of
Implicit references to the marketplace of ideas are also abound throughout Reno
v. ACLU. To establish grounding for their review, the Court summarizes and
quotes the District Court's findings of fact on Internet communications.
Without being entirely repetitive of the analysis in ACLU v. Reno, the initial
pages of the decision are still nonetheless worth highlighting. The court
explains the exponential growth of the Internet, both in terms of host computers
and users, and the various applications and characteristics of e-mail,
listservs, chat rooms, world wide web (WWW) and search engines. Impressed
especially with hypertext and the WWW, the court summarizes "the web is thus
comparable, from a reader's viewpoint, to both a vast library including millions
of readily available and indexed publications and a sprawling mall offering of
goods and services."
Reminiscent of de Sola Pool's prediction of electronic communications
technology to increase the diversity of the marketplace of ideas, the Court
expounds on the publishing opportunities of the Internet:
From the publishers' point of view, it constitutes a vast platform from which
to address and hear from a worldwide audience of millions of readers, viewers,
researchers, and buyers. Any person or organization with a computer connected
to the Internet can "publish" information. Publishers include government
agencies, educational institutions, commercial entities, advocacy groups and
individuals. Publishers may either make their material available to the entire
pool of Internet users, or confine access to a selected group, such as those
willing to pay.
As evident in their review of the findings of fact, the Court believes the
Internet's technological and usage characteristics will increase voices in the
free exchange of ideas. Citizens with access to the Internet have numerous
possibilities to retrieve and even publish information. Theoretically,
individuals may resort to their own liberty to sort out truth from the plethora
of information and material that exists in cyberspace.
The government argues the CDA is constitutional under three prior Supreme Court
rulings: Ginsberg v. New York, FCC v. Pacifica, and Renton v. Playtime
Theaters. The Court's discussion on the inapplicability of these cases
implicitly contain marketplace of ideas notions. In Ginsberg, the court upheld
a New York statute that restricted selling of material to minors under 17 years
of age if the matter could be deemed obscene to 17 year-olds but not adults.
Such a law was found to be in the best interest to the well-being of youth and a
mechanism to carry out an important parental objective of society. In Ginsberg,
parents still possessed the ability to purchase such material for their children
if they believed they were mature enough. In addition, the New York statute
only applied to commercial transactions. In comparison, the CDA applies to all
content and will penalize parents for knowingly distributing indecent or
patently offensive material to their children. Because of the more intrusive
infringement on speech than in Ginsberg, the CDA effectively tramples on
constitutional permissible freedoms and narrows the potential marketplace of
ideas for parents and children alike.
Meanwhile, the Court, in Renton, upheld a zoning ordinance designed to forbid
adult movie theaters in residential neighborhoods as a constitutionally
permissible time, place and manner regulation. The government contends the CDA
is also constitutional because it effect institutes "cyberzoning." Refuting
such an analogy, the Court rejects such a zoning ordinance because "the CDA
applies broadly to the universe of cyberspace." Imposing over-encompassing
zones such as the CDA would deter expression on the Internet, as adults would be
fearful of speaking prohibitively in a family-safe neighborhood. Such zones are
arguably based on physical, real world characteristics that aren't readily
transparent in cyberspace. Failure to know the age of all users would create
tremendous ambiguity and would result in the formation of restrictive zoning,
thereby delivering another blow to the free exchange of ideas.
The issue of cyberzones reappears in the dissent, written by Justice O'Connor.
While acknowledging "the electronic world is fundamentally different," the
dissent believes geographically based zoning laws are transferable to the
Internet. "Cyberspace undeniably reflects some form of geography; chat rooms,
and Web sites, for example, exist at "fixed" locations on the Internet."
The problem however is that users may disseminate and retrieve material in
cyberspace "without revealing anything about their identities or ages."
Unfortunately current technology is not able to effectively screen for age and
identity, including minors. In contending chat rooms and Web sites represent
different locations, the dissent forgets such locations exist in an a virtually
based world that as of yet has not developed clear signifiers and boundaries for
content. In reality, the establishment of zones, norms and self-regulated laws,
are still competing and forming in the vast virtual marketplace of ideas.
This point is once again ignored when the dissent explores another fundamental
difference of the Internet as compared to other traditional media. Writes
Cyberspace differs from the physical world in another basic way: Cyberspace is
malleable. Thus it is possible to construct barriers to cyberspace and use
them to screen for identity, making cyberspace more like the physical world,
and consequently, more amenable to zoning laws. ... Internet users who access
information have not attempted to zone cyberspace itself, but have tried to
limit their own power to access information in cyberspace.
Because users are able to create their own zones, the dissent believes such
actions are analogous to a parent installing a lock box to monitor their
children's television viewing. Eventually, through the use of gateway
technologies such as filtering and ratings software, age verification and
tagging, the "eventual zoning of the Internet appear promising." The
dissent refuses to acknowledge that users are taking advantage of their own
liberty to explore and create their own identities and rules in cyberspace.
Certainly, because of the abundance of user choice and interactivity on the
Internet, self-zoning of content is an option already available to users which
may aid in their own contribution to the reading and discussion of the
marketplace of ideas. While it may be in a parent's best interest to zone by
install filtering devices, the CDA places such a burden on all adult users,
thereby squelching freedom of expression. The creation of zones by individual
users is drastically different than the blanket prohibition on speech
represented by the CDA. Collectively, through eventual consensus, such virtual
zones may appear as a result of the free trade of ideas of individual users and
communities in cyberspace. Ironically, the dissent finds the CDA's patently
offensive and indecency provisions to be constitutional only in situations
involving one adult user and one or more users under the age of eighteen.
The majority of the Court also struck down the government's attempt to apply
Pacifica and broadcast regulation to cyberspace. In Pacifica, the Court
affirmed the FCC's authority to sanction stations for airing of indecent
material in order to protect children
Compared to other media, broadcasting "has received the most limited First
Amendment protection," under the premise that broadcasting uses a scarce,
public resource and is uniquely pervasive. In Red Lion Broadcasting Co. v. FCC,
the Supreme Court upheld the personal attack doctrine and determined "it is the
right of the viewers and listeners, not the right of the broadcasters, which is
paramount." Moreover, it recognized that the government's role in
allocating frequencies and content were justified under the scarcity of
broadcast frequencies because not everyone could afford to build a station and
obtain licensing. The Red Lion Court classified broadcasters as a "public
In Pacifica, the Supreme Court furthered the argument for more regulation by
backing the FCC in its decision to regulate indecency over the airwaves. The
Court found that broadcasting casts a pervasive presence onto the viewer or
listener. A New York radio station aired comedian George Carlin's
twelve-minute "Filthy Words" monologue at two in the afternoon. A man, who
had been driving with his son at the time of the airing, wrote a letter
complaining about the broadcast. Upon review, the FCC found Pacifica had aired
indecent language in violation of federal law. Even though the monologue was
part of a larger program about society's attitude toward language, the FCC was
concerned about the content and its possible exposure to children who were in
the audience. The Court upheld the FCC's determination that "Filthy Words"
was indecent and supported the FCC's sanctions on Pacifica and other licensees
who engaged in indecent broadcasting.
The Court justified its decision based on the fact that broadcasting provides
"a uniquely pervasive presence in the lives of all Americans." Material
sent over the airwaves "confronts the citizen" wherever the listener may be.
This confrontation should not include "patently offensive, indecent material,"
as it invades an individual's right to be left alone:
Because the broadcast audience is constantly tuning in and out, prior warnings
cannot completely protect the listener or viewer from unexpected program
content. To say that one may avoid further offense by turning off the radio
when he hears indecent language is like saying that the remedy for an assault
is to run away after the first blow.
The Court believed this pervasiveness is unavoidable for the listener or viewer,
as they may turn on the radio or turn the dial at any time without necessarily
knowing what may be presented. Critics have suggested people may simply avert
their eyes or ears to something else if they are offended by programming. The
Court, however, believed the damage would have already occurred from such
In Pacifica, the Court also found this type of damage potentially harmful
because "broadcasting is uniquely accessible to children" and could "enlarge a
child's vocabulary in an instant." Unlike materials at a bookstore or
movie theater, children have easy access to indecent materials if they turn on a
radio or television. Moreover, they may use a television or radio at home
without parental supervision. The Court turned to Ginsberg to support their
decision. The Court found the government's interest in the overall "well-being"
of children and its support of the parents' authority in their own homes
justified regulation of "otherwise protected expression." Therefore, given the
ease with which children may access broadcasting, and based on their findings in
Ginsberg, the Court found that sanctioning of indecent broadcasting could be
justified to protect children.
The majority in Reno v. ACLU believed the distinctions made regarding scarcity
and pervasiveness in Red Lion and Pacifica are significant points. Content
regulation of the Internet must show some degree of scarcity and pervasiveness
exist in order to uphold the CDA's prohibitions on indecent and patently
offensive material. Even in the most heavily regulated medium, the FCC created
a "safe harbor" for the viewing of indecent material on television. As
evident below, the Court found cyberspace to be fundamentally different than
broadcasting because it is not constrained by scarcity nor in need of taming
because of its alleged pervasiveness. Through its refusal of applying Pacifica,
the Court discovered cyberspace was instead a dramatic expansion to individual
self-fulfillment and free trade of idea.
The Court turned to Sable Communications v. FCC to help reject the
pervasiveness contention. In its prior review of Sable, the Supreme Court
examined the applicability of the statutory bans on dial-a-porn. The Court
upheld the obscenity ban but found the indecency ban unconstitutional. The
Court believed the amendment was not narrowly tailored to serve the government's
compelling interest in protecting children. The Court concluded dial-a-porn
service was not pervasive like a radio broadcast, stating that, "placing a
telephone call is not the same as turning on a radio and being taken by surprise
by an indecent message." Additionally, the Court pointed out that callers
having to call and take affirmative steps to access indecent messages, such as
dialing a credit card or access code, represented a feasible and effective way
to serve the government's compelling interest in protecting children. Thus,
in Sable, the Court concluded adults should have the freedom to hear indecent
messages by means of dial-a-porn. This decision is significant to regulating
cyberspace because most users have to take affirmative steps to access material,
including indecency. Sable makes a clear distinction between the
pervasiveness of broadcasting and telephony and more importantly, justifies
adult's rights to access indecent material when they take affirmative steps.
Besides upending pervasiveness, the Court in Reno v. ACLU also found the
scarcity rationale to be non existent in cyberspace. Justice Stevens expounds
on the unique application characteristics of cyberspace:
Unlike the conditions that prevailed when Congress first authorized regulation
of the broadcast spectrum, the Internet can hardly be considered a "scarce"
expressive commodity. It provides relatively unlimited, low-cost capacity for
communications of all kinds. ... This dynamic, multifaceted category of
communication includes not only traditional print and news services, but also
audio, video, and still images, as well as interactive, real- time dialogue.
Through the use of chat rooms, any person with a phone line can become a town
crier with a voice that resonates farther than it could from any soapbox.
Through the use of Web pages, mail exploders, and newsgroups, the same
individual can become a pamphleteer. As the District Court found, "the content
on the Internet is as diverse as human thought."
In its flat out denial of scarcity, the Court strongly endorsed the Internet's
democratic and speech enhancing qualities. Relatively low barriers exist to
participate in cyberspace, as citizens do not necessarily need to own or operate
a station or newspaper to make a contribution to the marketplace of ideas.
While not as easy "a phone line," the resources needed to become a voice in
cyberspace are comparatively small when compared to traditional media. Given
its strong endorsement of the Internet's ability to eradicate scarcity, the
Court would probably find Barron and Fiss's arguments of market failure to be
irrelevant in cyberspace. Instead, as alluded to earlier, the Court finds the
Internet as a "dynamic expansion" of "the marketplace of ideas."
The CDA litigation presented demonstrates an apparent endorsement of the
marketplace of ideas theory as applied to the new medium of the Internet. The
Court finds "the breadth of the CDA's coverage to be wholly unprecedented"
and a constitutional infringement on the rights of adults to access and
disseminate indecent and patently offensive material. Most of all, such
regulations impinge on individual liberty embedded in the Holmesian notion of
trading ideas in search of truths - even if those truths are related to
The Future of the Marketplace of Ideas in Cyberspace
Law & policy mucking up cyberspace's marketplace of ideas
While many free speech advocates, breathed a sigh of relief upon the Court's
striking down of the CDA, law and policies are in place or on the horizon which
may inhibit individual liberty and free trade of ideas in cyberspace.
Current obscenity law does not easily fit the virtual community characteristics
of cyberspace. In 1994, a federal jury in Memphis, Tennessee, found Carleen and
Robert Thomas guilty of disseminating obscene material by computer and
interstate telephone lines. The Thomases operated a private,
subscription-only BBS out of their home in Milpitas, California. The BBS,
called Amateur Action Bulletin Board, offered adult, sexually-oriented materials
to its subscribers. Subscribers were able download adult computer graphic
files to their computers and order photographs and videotapes on-line to be
mailed to their homes. The Thomases were indicted after a postal inspector, who
had subscribed to the BBS under an assumed name, was able to download graphic
sexual material and chat on-line with Robert Thomas about sending child
pornography. The charges included six counts of using a computer and
telephone system for the purpose of transporting obscene material. The
Thomases were also charged with three counts of using a common carrier (United
Parcel Service) for carrying obscene material and three other counts,
including one violating federal child pornography law. The Thomases failed
to move the trial to California where the material originated so that their
local community standards would apply. Instead, they were found guilty of the
obscenity charges based on the conservative standards of Memphis,
The Amateur Action and CDA cases demonstrate the potential ambiguity of current
law when applied to the Internet. With regard to obscenity, the Amateur Action
case doesn't clarify what local community standards apply to the Internet.
Although states may want to enact their own legislation to fight on-line
pornography, the CDA supersedes any potential state law. Therefore, states must
follow the Supreme Court's recent ruling to determine the constitutionality and
applicability of the CDA. In addition to defeat of the CDA, a federal district
judge struck down a Georgia statute criminalizing on-line anonymous speech and
the use of trademarked logos as links on the WWW. Simultaneously, another
federal district judge blocked the enforcement of a New York version of the
In response to the CDA's defeat, the Clinton Administration announced a
strategy for making the Internet "family friendly." The plan establishes a
resourceful website for parents (http//:www,netparents.org) that provides
information on blocking software and filter-supported ISPs. In addition, the
NetParents page contains helpful tips for child safety on the information
highway, including cites designed exclusively for children. In the latest
white paper detailing policy for the Internet, the Administration favors
technological filters and age verification systems to help steer objectionable
content away from children.
Congress has discussed and proposed new legislation aimed at curbing
pornography on the Internet. Sen. Dan Coasts (R-Ind.), one of the original
co-sponsors of the CDA, introduced S. 1482. The bill would amend the
Communications Act of 1934 to prohibit the commercial distribution of material
on the WWW that is "harmful to minors," including any matter that, taken as a
whole, appeals to a prurient interest in nudity, sex or excretion and depicts
actual or simulated sex acts in patently offensive ways. Criminal sanctions for
violating the provisions may range up to $50,000 and/or six months imprisonment.
The Family-Friendly Internet Access Act of 1997 requires Internet access
providers to supply screening software for parental control purposes. In
contrast, the Indecency on the Internet Act withholds any universal service
funds being administered by the FCC for schools and libraries who fail to
include filters and blocking devices as part of their Internet offerings.
Meanwhile, bills H.R. 2791 and S. 1356 amend the CDA to prohibit ISPs from
giving accounts to sexually violent predators. Another proposal suggests
creating a WWW adult addressing segment designed for sexually explicit
material. Free speech advocates and Internet users leery of such
regulation, are calling for further development and implementation a user-based
control mechanisms, such as software filters and the PICS content
International aspects of cyberspace simultaneously add diversity and regulatory
complexity to the marketplace of ideas
The global community is examining its own respective content policies for the
Internet. The Global Information Infrastructure (GII) initiative purports to
bring advanced information and telecommunications services to the world.
Nonetheless, despite the promise of the GII, nations and governmental bodies
have implemented or proposed various solutions to fight the prevalence of
pornography, hate speech and even political speech in cyberspace. In the
most extreme cases, government officials in China and Singapore have implemented
proxy servers and created firewalls designed to filter objectionable material to
and from its citizens. Because of the Internet's global capabilities, the
potential world marketplace of ideas will limited by restrictive nationalistic
approaches to regulating content.
Already there are scholars who recognize that content control on the Internet
presents a unique international regulatory dilemma. Much of their discussion
has centered on the belief that cyberspace knows no borders and, as a result,
often confuses and confounds jurisdictions. A. Michael Froomkin contends the
transnational nature and technological characteristics of the Internet creates
opportunities for regulatory arbitrage whereby persons may "arrange their
affairs so that they evade domestic regulations by structuring their
communications or transactions to take advantage of foreign regulatory
regimes." For instance, people living within borders without the
privileges of free speech may resort to communicating anonymously in a liberated
To remedy this jurisdictional phenomenon, David Johnson and David Post propose
the creation of a distinct set of laws be created in a new cyber forum. This
new cyberlaw would include self-regulating rules which would simplify current
legal problems stemming from defamation, obscenity and copyright violation. As
necessary consensus building among users will inevitably face challenges,
treating cyberspace as a separate space and the right to exit should play major
roles in cyberlaw. In effect, these two characteristics will allow for distinct
subsets of communities and the formation of internal, as opposed to
geographically borders. Post believes the treatment of cyberspace as a
distinct place and erosion of geographic boundaries on the Internet gives
"hierarchically organized non-government organizations" (i.e. individual
networks or Internet Service Providers (ISPs) ) a comparative advantage to
regulate the Internet.
While Johnson and Post suggest cyberspace sovereignty, Lawrence Lessig cautions
against such normative arguments. While new law will evolve, the separation
between real space law and cyberspace law will not be sustained, as the Internet
may be "regulated by real space regulation to the extent that it affects real
space life." Lessig contends zoning, the emergence of facilitating
boundaries, will eventually replace the wildness of cyberspace. In contrast,
Timothy S. Wu suggests a generative model of 'minimally' sovereign cyberspace.
Norms and rules of cyberspace may become recognized and respected by a
significant number of states/governments. It is minimal because only the norms
and rules likely to gain wide appeal will be those "individuals with wide
varying persuasions find acceptable." Nonetheless, the Internet will
likely remain independent because of government and public inertia.
Meanwhile Henry Perritt, suggests international arbitration for civil disputes
and a criminal international law court as solutions to reach consensus.
Ultimately, Perritt believes intermediaries like network operators offer better
alternatives than depending on traditional law that is tied to real-world,
geographic boundaries. Joanna Zakalik contends cyberspace has undermined
the application of geographically based jurisdiction and law. As a result, laws
must recognize cyberspace as having a distinct spatial jurisdiction. To remedy
the problem of jurisdiction, Zakalik proposes applying network-specific
(spatial) jurisdictions, existing international convention and treaties, and the
alternatives offered above by Perritt.
Despite the scholarly solutions to remedy the transnational border effect of
cyberspace, many nations are entangled in applying their own jurisdictional
law/policies and, as a result, deprive citizens' of access to information and
the marketplace of ideas. Karen Sorrenson of the Human Rights Watch warns of
these potential dangers:
on-line censorship laws, in addition to trampling on the free expression of
rights of a nation's own citizens, threaten to chill expression globally and to
impede the development of the Global Information Infrastructure (GII) before it
becomes a global phenomenon.
Sorrenson believes prior censorship and an explicit prohibition against
restrictions of free expression by indirect methods are two essential elements
to ensure freedom of speech survives in cyberspace. Sorrenson also contends
rights of freedom of expression, access, and privacy are supported by both
Article 19 of the Universal Declaration of Human Rights and Article 19 of the
International Covenant on Civil and Political Rights.
Marketplace of ideas on the Internet problematized by lack of access to public
Many believe new technologies have the potential, if regulated properly, to
bring new fruits and freedoms to our society. In order to attain greater
interactivity, choice and diversity in debate among citizens, specifically
Berman and Weitzner believe new media must exhibit a certain style of network
The scarcity that characterizes today's mass media will be fully replaced by
abundance only when a network with the following characteristics is in place:
(1) a decentralized, open-access architecture; and (2) open endpoints, providing
easy access for all potential content providers and content users.
Besides a decentralized architecture and open interfaces proliferating the
number of speakers, users must also rely upon themselves and one another for
self-sufficiency. New interactive media differ substantially from traditional
mass media because they provide users with greater control mechanisms and
choice. These mechanisms, such as filters and rating systems, will reduce the
rationale for the government to intervene and create intrusive content. In
addition, by placing the onus on the individual, users may feel more motivated
to become an active participant in an on-line environment. Nonetheless, if open
network architecture and user choice is not adopted to new media like
cyberspace, the potential bright future of First Amendment values, including
information diversity and public participation, will welter away.
If we are able to successfully implement Berman and Weitzner's suggestions, the
Internet may be analogous to the establishment of new public spheres. In short,
the public sphere refers to public life. Such life may include the involvement
and participation in matters outside the home and office, public discussion
about common concerns and even public spaces that provide congregation and
impetus for such activities to occur. In theory, more diversity and public
participation will result in cyberspace because of the characteristics of user
choice and interactivity, thus leading to the establishment of new virtual
spaces of discourse and public involvement.
While many people debate over the existence of the public sphere, Jurgen
Habermas believes the public sphere, specifically that of the classical
bourgeois, was most developed in eighteen-century Europe. Habermas
elaborates on the concept of a public sphere:
The bourgeois public sphere may be conceived above all as the sphere of private
people come together as a public; they soon claimed the public sphere
regulated from above against public authorities themselves, to engage them in a
debate over the general rules governing relations in the basically privatized
but publicly relevant sphere of commodity exchange and social labor.
During this period, the public sphere was based primarily on the quality of
argument and not on the status of participants. However, since this time, there
has been a continual withdrawal from public participation and discourse. To
Habermas, the quality of discourse and amount of participation help shape the
nature of a public sphere in democratic society. The public sphere may be
thought of as an arena essential to the vitality of a democracy. But even in
its supposed highpoint, the public sphere only served those who were literate,
that of the bourgeoisie and upper class. Illiterate members of society were not
able to participate in the public sphere because they lacked the effective means
Such a problem continues today in the realm of the Internet. The Internet
really only allows conversations to take place among a certain segment of the
population, namely those who may access the Internet through work and school and
those who have the financial resources to buy a computer, modem and monthly
Internet service subscription. Of course using the Internet requires literacy,
the ability to read and write, as well as the skills necessary to effectively
navigate and use a computer. Those without access, financial wherewithal and
literacy skills will be left out of any new public spheres that may occur on the
information highway. In fact, the increasing fear is that there will be a large
gap between those who are information poor and rich. This gap between the
information haves and have-nots may leave many without the necessary information
to participate as citizens in our democracy. By not implementing public
policy that provides access and accommodates abundant participation on the
information highway, the potential for new democratic discussions in public
spheres will not occur, and the marketplace of ideas will remain in the hands of
those who are wealthy.
Postmodernity and the need for a new paradigm to incubate the Internet's
marketplace of ideas
Internet as a postmodern medium
Postmodernism refers to the emergent historical epoch in opposition to
modernism, often characterized by such words as indeterminacy, dispersal,
combination, and anti-narrative. Central to the transformation from a
modern to postmodern condition, is the shift from the sovereign individual to a
fragmented or ever-emergent self. Given such trends it is not surprising that
postmodernity has witnessed a recognition and discovery of the Other, as
evidenced in the work of Foucault, as well as cultural studies scholars
concerned with gender and race representation in the media.
While the Other continues to chart new waters, another avenue worthy of
exploration in postmodernity lies within the ever expanding terrain of
technological convergence represented by cyberspace. Science fiction writer
William Gibson defines cyberspace as:
A consensual hallucination experienced daily by billions of legitimate
operators, in every nation. ... A graphic representation of data abstracted
from the banks of every computer in the human system. Unthinkable complexity.
Lines of light ranged in the non-space of the mind, clusters and constellations
Unthinkable complexity is one way of characterizing the Internet. Often seen as
encapsulating the platform and medium of the future, cyberspace is inherently
different from traditional forms of media - newspaper, broadcasting, and cable
television - media arguably products of modernity. After all, the Internet is
mutli-modal in nature, a combination of print, magazine, broadcasting, telephony
and data. Two-way communication and interactivity allow those with access the
ability to receive and publish material from their keyboards. The control of the
Internet is also decentralized, representing a shift from the traditional
hierarchical telephone network and information flow typologies of traditional
media. With such new characteristics abound, one may begin to realize the
symmetry which exists between the Internet and postmodernity. The potential
for a plethora of diverse voices exists in cyberspace. Because there is no
centralized control per se, these voices often express themselves, even
anonymously, through a number of representations, outlets and applications such
as e-mail, IRC (Internet Relay Chat), WWW (World Wide Web) pages, BBS (Bulletin
Boards), MUDs (Multi-user domains), and virtual reality.
In fact, the medium of the Internet manifests postmodernity. The discontinuity
and amount of information on the Internet provide new possibilities and
experiences which often result in empowering the self to become further
fragmented or ever-emergent. Likewise, the expression, and potential reception
of the Other increases.
In describing modernity, David Harvey refers to the words of Baudeliare,
writing it "is the transient, the fleeting, the contingent; it is the one half
of art, the other being the eternal and the immutable." To Harvey, such
principles shows modernism as relinquishing the past and finding meaning "within
the maelstrom of change." The Enlightenment period during the eighteenth
century welcomed such change and "saw the transitoriness, the fleeting and the
fragmentary as a necessary condition through which the modernizing project could
be achieved" Principles of liberty, equality, faith in human intelligence
and universal reason permeated society. Harvey saw the irony in the opposition
between the ephemeral and eternal through the interplay of creativity and
If the modernist has to destroy in order to create, then the only way to
represent eternal truths is through a process of destruction that is liable, in
the end, to be itself destructive of those truths. Yet we are forced, if we
strive for the eternal and immutable, to try to put our stamp on the chaotic,
the ephemeral, and the fragmentary. The Neitzschian image of creative
destruction and destructive creation bridges the sides of Baudelaire's
formulation in a new way.
This 'creative destruction' was a tool used by artists to help make sense of the
chaos characteristic of during the period of modernism. Interestingly enough,
the idea of creative destruction/destructive creation may be seen as potential
method to make sense of and create order for the Internet. The Internet,
because of globalness, digitization and packet switching characteristics, more
or less erodes physical real world boundaries, making it extremely difficult to
apply any existing legal jurisdiction. While virtual communities have found it
necessary to create their own rules so far the government, artists, and
media have been unable to put a stamp on the Internet through creative
destruction. So long as control remains widely dispersed, the Internet's
postmodern tendencies suggest it may be resist such a creative destruction from
Harvey believes we have transited from a modern to postmodern condition.
While modernism attempted to transcend and counteract the 'eternal and
immutable' elements of the ephermerality and fragmentation, "postmodern swims,
even wallows, in the fragmentary and the chaotic currents of change as if that
is all that there is.". In addition, "the idea that all groups have a
right to speak for themselves, in their own voice, and have that voice accepted
as authentic and legitimate is essential to the pluralistic stance of
postmodernism." In many ways, the number of webpages and e-mail addresses
in cyberspace continue to expand and grow in connected, yet fragmented segments,
as it is increasingly harder to catalog and local information on search engines.
With the outgrowth of ISPs (Internet service providers) and new access
initiatives in schools and libraries, more voices are gaining a presence on the
Internet (although there is a long way to go to achieving equitable access, both
domestically and globally). Thus, the Internet may be seen as swimming in
fragmentary change while providing new opportunities for groups organizations
and individuals to express themselves.
Concerned with notions of order and representation, Foucault warns against the
limitations of language and culture. Before the 17th Century, order was
constructed through resemblance - convenience, emulation, analogy, sympathy -
all of which were grounded upon signatures. Semiology and hermenuetics were
interwoven into the resemblances of objects are they are perceived; however this
interwoveness disappeared after the Classical Age. The role of language changed
from describing what is before you to handling concepts as if they were neutral
and transparent. Referring to classification methods of science, Foucault
elaborates on the transformation:
Every being bore a mark, and the species was measured by the extent of a common
emblem. So that each species identified itself by itself, expressed its
individuality independently of all others...but, from the seventeenth century,
there can no longer be any signs except in the analysis of representations
according to identities and differences. That is, all designation must be
accomplished by means of a central relation to all other possible designations.
To know what properly appertains to one individual is to have before one the
classification - or the possibility of classifying - all others.
Disheartening to Foucault is what happens when something doesn't fit neatly into
any of the classifying criteria. The Other, may become lost or misrepresented
because language has become transparent and lost its descriptive role. Thus,
discourses or discursive practices may set rules as to what is legitimized and
what is cast into the eclipse. Foucault, saw the postmodernism movement as a
realization of how modern notions of reason, as evidenced by law, science and
philosophy, may by there very nature, ignore the Other. While no longer alive
today, Foucault would be encouraged by the Otherness that is represented on the
Internet. The diversity of content available is far beyond the limiting
discourses of the enlightenment and science. Moreover, the lack of order in
general displayed in cyberspace lends even greater support to Foucault's overall
implicit argument that we take order for granted as a given; instead each
culture may create its own order. Netizens in cyberspace are engaged in
constructing and sorting out order through an abundance of information and
voices. What's unique about the new order however is that many of the modern
and land-based elements of law and reason aren't transparent nor applicable in
Paradigm shift to buttress the democratic notions embedded in cyberspace's
marketplace of ideas
If the Internet is a reflection of a postmodern medium and era than one may
question how modern methods of law and reason apply. The Communications Decency
Act is one among many examples of the difficulties applying current law to a
international medium which creates its own virtual borders. Law and policy
concerning such issues as privacy, access, copyright, and
defamation and libel, continue to surface and remain unresolved in
cyberspace. The First Amendment itself, a byproduct of the enlightenment,
may be used to combat these legal dilemmas to ensure democratic expression.
Participation can occur in numerous marketplaces of ideas, and individuals and
communities can attain their own ever-emergence.
The consequences for realizing the Internet is a manifestation of postmodernity
are staggering, Modern notions of law and freedom of expression jurisprudence
are being applied with tremendous resistance from users throughout the
cyberspace community. Even without this resistance, many legal experts contend
physical, real world law do not easily apply to a medium which knows no bounds
or borders. One may attempt to rely on the use of filtering, privacy and
encryption software as technological saviors to the postmodern condition of
cyberspace. Alternatively, one may apply cumbersome, outdated modernist laws
and norms to a postmodern medium. But such solutions seem to miss the point
entirely. It is evident that a whole new paradigm shift may be needed to
reconceptualize how laws and rules may apply to a postmodern, virtual world of
Instead of trying to supplant modern, land-based principles to the Internet, a
whole new paradigm is needed to account for the postmodern condition which is
manifested in cyberspace. We must shift our thinking and create new malleable
parameters for policy and thought that recognize users and borders are
ever-emergent. Terms to characterize the new "Internet as paradigm" may
include: network of networks, infostructure, multimedia, access, amplify,
accelerate, empower, distribute, connectivity, disintermediate, incubation,
possibilities, resilience, adaptive, robust, open, decentralized, participatory,
pluralism, diversity, interactive, personalized, self-organizing, 
ever-emergent and marketplace(s) of ideas.
Because of its decentralized control, two-way interactivity, low barriers to
entry, ability to eradicate physical borders and tendency to simulate
participation among persons with diverse opinions, the Internet may be seen as
the embodiment of the fragmented or ever-emergent self and the marketplace of
ideas. As the terrain and scope of cyberspace increases-some portend it to be
the 'killer application' or 'medium of the future'-representation of the Other
should rise significantly. With greater representation of the Other, a dynamic
expansion of the marketplace of ideas may occur, especially if citizens are
afforded access opportunities. The First Amendment should be utilized to
maintain this ideal prognosis and consequently must be at the forefront of the
paradigm shift to capture the potential of cyberspace.
 Communications Decency Act of 1996 as contained in Title V, Sec. 502 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-35.
See Rimm, Marketing Pornography on the Information Superhighway , 83
GEORGETOWN LAW JOUR. 1849 (1995). Rimm's study claimed that of the top forty
Usenet boards accessed by students and staff at Carnegie Mellon University
nearly 33% focused on sexually explicit imagery. During a four month period,
83.5% of Usenet postings were sexually explicit.; The study was well-publicized
in the mainstream press. Phillip Elmer Dewitt, Hannah Block, Wendy Cole and
Sharon E. Epperson, On A Screen Near You: It's Popular, Pervasive and
Surprisingly Perverse According to the First Survey of Online Erotica. And
There's No Easy Way to Stamp It Out, TIME July 3, 1995 at 38-44; Nonetheless,
Rimm's study has been criticized by researchers and academics. Bill Schakner and
Dennis B. Roddy,Internet Brouhaha Entangles Researcher, PITTSBURGH POST-GAZETTE
July 24, 1995 at A1.
Focus - Sex in Cyberspace , The MacNeil/Lehrer NewsHour, June 22 1995; Edwin
Diamond and Stephen Bates Law and Order Comes to Cyberspace, TECH. REV.
October, 1995 at 7.
David Johnston, Use of Computer Network For Child Sex Sets Off Raids, NEW YORK
TIMES September 14, 1995 at A1, A18. Justice Department arrested twelve people
allegedly involved in distributing child pornography and luring minors into sex
while using American Online.
ACLU v. Reno, 929 F.Supp 824 (E.D. Pa. 1996), also available on the Internet at
http://www.aclu.org/court/cdadec.html.; Another case, heard after ACLU v. Reno,
challanging the CDA's indecency provisions was found to be unconstitutionally
overbroad. Shea v. Reno, 930 F. Supp. 916 (S.D. N.Y., 1996)
Reno v. ACLU, 25 Med L. Rptr. 1833 (1997).
See generally Lively,The Information Superhighway: A First Amendment Roadmap,
55 BOSTON COLLEGE L.REV. 1067 (1994); Krattenmaker and Powe, Jr., Converging
First Amendment Principles for Converging Communications Media, 104 YALE LAW
JOUR. 1719 (1995); Berman and Weitzner, Abundance and User Control: Renewing the
Democratic Heart of the First Amendment in the Age of Interactive Media , 104
YALE LAW JOUR 1619 (1995).
For an overview on the history of the Communications Decency Act, see Robert
Cannon, The Legislative History of Senator Exon's Communications Decency Act:
Regulating Barbarians on the Information Superhighway 49 FED. COMM. L.J. 51
Telecommunications Act of 1996 (S. 652): 104th Congress.; See generally
Christopher Stern, New Law of the Land, BROADCASTING & CABLE, February 5, 1996
at 8, 12.; Clinton Signs Revolutionary Bill Into Law at a Ceremony Packed with
Symbolism, WASH. POST, February 9, 1996 at C1.
Communications Decency Act of 1996 as contained in Title V, Sec. 502 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-35.
See Focus - Sex in Cyberspace, THE MACNEIL/LEHRER NEWSHOUR, June 22, 1995.
Edmund Andrews, A Crusader Against Cyberporn Who Was Once Involved in a Sex
Scandal, N.Y. TIMES, November 27, 1995 at A10.
See Cannon, supra note 1, at 53-57; See also Bill Schakner and Dennis Roddy,
Internet Brouhaha Entangles Researcher, PITTSBURGH POST-GAZETTE, July 24, 1995
at A1; Donna L. Hoffman & Thomas P. Novak, A Detailed Analysis of the
Conceptual, Logical, and Methodological Flaws in the Article: " Marketing
Pornography on the Information Superhighway" (March 31, 1997)
<http://www2000.ogsm.vanderbilt.edu/rimm.cgi>. The validity and ethics of Rimm's
research have been questioned by academics and the industry. Rimm was allegedly
able to obtain detailed customer files from BBS operators, including phone
numbers and addresses. Rimm also obtained computer usage habits on as many as
89 percent of students. Critics say pornography is limited to less than
one-half of 1 percent of all traffic on the computer network and have thus
questioned his research methods and conclusions.
 See Marty Rimm, Marketing Pornography on the Information Superhighway, 83
GEO. L.J. 1849 (1995). The study claimed that of the top forty Usenet boards
accessed by students and staff at CMU nearly 33% focused on sexually explicit
imagery. During a four month period, 83.5% of Usenet postings were also found
to be sexually explicit.; The study was well-publicized in the mainstream press.
See Phillip Elmer Dewitt, Hannah Block, Wendy Cole and Sharon E. Epperson, On A
Screen Near You: It's Popular, Pervasive and Surprisingly Perverse According to
the First Survey of Online Erotica. And There's No Easy Way to Stamp It Out,
TIME, July 3, 1995 at 38-44.
David Johnston, Use of Computer Network For Child Sex Sets Off Raids, N.Y.
TIMES, September 14, 1995 at A1, A18. The Justice Department arrested twelve
people allegedly involved in distributing child pornography and luring minors
into sex via American Online.
47 U.S.C S 223 (1992).; See generally Electronic Frontier Foundation,
Constitutional Problems with the Communications Decency Amendment: A Legislative
Analysis, June 16, 1995.
Communications Decency Act of 1996 as contained in Title V, Sec. 502 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-35.
 Historically, common carriers must provide non-discriminatory service to
customers and have been under heavy economics regulatory oversight. Meanwhile,
Internet service providers and on-line services would like to be classified as
common carriers so they are held unliable for content, but don't meet the
traditional common carrier qualifications or want its accompanying
Communications Decency Act of 1996 as contained in Title V, Sec. 502 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-35.; See
also ACLU v. Reno, 929 F. Supp 824 (E.D. Pa. 1996)
<http://www.aclu.org/court/cdadec.html>. In arguing the case, government
attorneys suggested that Congress intended to use "patently offensive"
interchangeably with the terms "indecent" and as such, "indecent" was the same
as "patently offensive." In his opinion, Judge Buckwalter did not agree that
these words were equal in meaning and found fault with what the term"indecent"
meant. According to Buckwalter, "The CDA does not define the term "indecent,"
and the FCC has not promulgated regulations defining indecency in the medium of
cyberspace. If "indecent" and "patently offensive" were intended to have the
same meaning, surely section (a) could have mirrored section (d)'s language."
 An interactive computer servuce is defined in Section 230(e)(2) of the
Telecommunicaitons Act of 1996 as "any information service, system, or access
software provider that provides or enables computer access by multiple users to
a computer server, including specifically a service or system that provides
access to the Internet and such systems operated or services offered by
libraries or educational institutions."
Communications Decency Act of 1996 as contained in Title V, Sec. 502 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-35.
 The first injunction was sought by a coalition led by the ACLU. The ACLU
filed the order the same day President Clinton signed the telecommunications
bill into law. For ACLU's arguments see ACLU Plaintiffs Motion of Law in Support
of a Motion For a Temporary Restraining Order and Preliminary Injunction (re
ACLU v. Janet Reno Civ. A.No. 96-963 (E.D.Penn)) <http://www.aclu.com/>.; In a
separate attempt, Citizens Internet Empowerment Coalition (CIEC), led by the
Center for Democracy and Technology (CDT) and comprised of American Online,
American Library Association, Wired Magazine and other heavy online users, filed
suit seeking to overturn the CDA on constitutional grounds. Center for Democracy
and Technology, CDT Policy Post, February 26, 1996, Vol 2, No. 7.
<http:www.cdt.org>.; For government arguments see U.S. Department of Justice
(Janet Reno), Defendant's Opposition to Plaintiffs' Motion for a Temporary
Restraining Order (re ACLU v. Janet Reno Civ. A.No. 96-963 (E.D.Penn))
ACLU, et al. v. Janet Reno. Order. Civ. A. No 96-963 (E.D.Penn)
<http://www/aclu.org> The order pertains to only the indecency portions of the
Communications Decency Act. The judge granted a temporary restraining order
enjoining the federal government from prosecuting "indecency" on the Net.; See
also Federal Judge Issues Temporary Restraining Order on Indecency Law, WASH.
TELECOM NEWS, February 26, 1996; After the temporary restraining order, the
ACLU's coalition and CDT's coalition combined efforts. Peter Lewis, On-line
Services Join Indecency Law Suit, N.Y. TIMES, February 26, 1996 at D2.;
Arguments began in front of a three-judge U.S. District Court panel with a
demonstration of the Internet. Amy Harmon, Landmark Online Decency Hearing
Begins, L.A. TIMES, March 22, 1996 at D1.
ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996).; See generally Peter
Lewis, Judges Turn Back Law to Regulate Indecency, N.Y. TIMES, June 13, 1996 at
A1; Amy Harmon, Court Bars Law Blocking Indecent Material, L.A. TIMES, June
13, 1996 at A1; Christopher Stern, Court Bars Internet Indecency Rule,
BROADCASTING & CABLE, June 17, 1996; Thomas DeLoughry and Jeffrey Young,
Internet Restrictions Ruled Unconstitutional, CHRON. OF HIGHER EDUC., June
21, 1996 at A17-20.
The Supreme Court rwill render a decision on the fate of the CDA sometime this
summer. See Linda Greenhouse, Justices Weigh Decency Rules For the Internet,
N.Y. TIMES, March 20, 1997 at A1.; For transcript of the oral arguments see
(visited March 20, 1997) <http://www.aclu.org/issues/cyber/trial/sctran.html/>.
 Reno v. ACLU 25 Med. L. Rptr. 1835 (1997).
Id. at 1847.
Id. at 1842.
 Id. at 1846.
Id. at 1844.
 Id. at 1850.
 LEONARD LEVY, EMERGENCE OF A FREE PRESS (1985). No one really knows for
sure what the writers of the First Amendment intended. According to Levy, our
founding fathers did not have such an embracing acceptance of speech as often
touted by scholars and theorists. Instead, Levy believes libertarian thought
and the practice of freedom of expression did not occur until after the Sedition
Act of 1798.
JOHN MILTON, AEROPAGITICA (1644), reprinted (1895).
Id. at 73.
Id. at 44.
Abrams v. United States, 250 U.S. 616 (1919).
JOHN STUART MILL, ON LIBERTY (1859), reprinted (1956).
Id. at 13.
Id. at 63-64.
Id. at 114.
Id. at 140.
Abrams, 250 U.S. 616 (1919).
Schenck, 249 U.S. 47 (1919).
JEREMY COHEN, CONGRESS SHALL MAKE NO LAW: OLIVER WENDELL HOLMES, THE FIRST
AMENDMENT, AND JUDICIAL DECISION MAKING 94-120 (1989).
Schenck, 249 U.S. 47, 52 (1919).
See generally Alexander Meiklejohn, The First Amendment is Absolute, 1961 SUP.
CT. REV. 245 (1961).
See generally ZECHARIAH CHAFEE, FREE SPEECH IN THE UNITED STATES (1941);
Zechariah Chafee, Book Reivew: Alexander Meiklejohn's Free Speech: And Its
Relation to Self Government, 62 HARV. L. REV. 891 (1949).
The clear and present danger test actually replaced the bad tendency test which
was dervied from English common law. Nonetheless, the clear and present danger
test was applied in the 1950's, although under the vail of the bad tendency
test. Dennis v. U.S., 341 U.S. 494 (1951).
See COHEN, supra note 46, at 116.
Abrams, 250 U.S. 616, 630-31 (1919).
ADAM SMITH, WEALTH OF NATIONS (1776). Smith provides an explaination of
laissez-faire and the "invisible hand" theory supporting capitalism and free
See Lucas Powe, Scholarship and Markets, 56 GEO. WASH. L. REV. 172 (1987).
Powe provides an interesting overview of First Amendment theory as it relates to
the markets while simultaneously supplying a critique of Owen Fiss and Jerome
TONY McADAMS, LAW, BUSINESS & SOCIETY 264-65 (1995).
See Powe supra note 54, at 172. As Powe points out, many academics agree that
laissez-faire approach properly reigns in the marketplace of ideas.
See Jerome Barron, Access to the Press - A New First Amendment Right, 80 HARV.
L. REV. 1641 (1967).
See Jerome Barron, In Defense of Fairness: A First Amendment Rationale for
Broadcasting's 'Fairness' Doctrine, 37 U. COLO. L. REV. 31 (1964); See also
Jerome Barron, The Federal Communications Commission's Fairness Doctrine: An
Evaluation, 30 GEO. WASH. L. REV. 1 (1961).
New York Times v. Sullivan, 376 U.S. 254 (1964).
See Barron, supra note 48, at 1641-42.
See Powe, supra note 54, at 177. The fairness doctrine required broadcasters to
"(1) present controversial issues of public importance to their audiences and
(2) ensure that both sides of the issues are available."
Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969).
See Powe, supra note 54, at 178; Miami Herald v. Tornillo, 418 U.S. 241 (1974).
For a critical assessment of the shortcomings of the fairness doctrine, see
1985 FCC Fairness Doctrine Report, 102 F.C.C.2d 145 (1985).; Congress did not
legislate the doctrine. Telecommunications Research & Action Center v. FCC, 806
F.2d 1115 (D.C. Cir. 1986).; The FCC decided the fate of the fairness doctrine,
Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987).; The FCC finally repealed
the doctrine, Syracuse Peace Council, 2 FCC Rcd 5043 (1987).; U.S. District
court legally affirmed the FCC's repeal, Syracuse Peace Council v. FCC, 867
F.2d 654 (D.C. Cir. 1989).; For further review of the fairness doctrine, see
generally SCOTT POWE, AMERICAN BROADCASTING AND THE FIRST AMENDMENT (1987).
See Owen Fiss, Why the State?, 100 HARV. L. REV. 781 (1987).
See Owen Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986).
Id. at 1410.
Id. at 1412-13.
See McADAMS, supra note 55, at 788.
See Powe, supra note 54, at 180.
I. DE SOLA POOL, TECHNOLOGIES OF FREEDOM (1983).
Id. at 150.
Id. at 224.
Id. at 226.
Id. at 246-48.
Id. at 251.
A. Harmon, Landmark Online Decency Hearing Begins, LOS ANGELES TIMES, March 22,
1996 at D1.; L. Miller, Internet Indecency Act Goes to Court, USA TODAY, March
21, 1996 at 1D.
ACLU v. Reno, 929 F. Supp 824, 832 (E.D. Pa. 1996).
Id. at 836.
Id at 838.
Id. at 844.
Id. at 842.
Id at 843. The creation of a Web site would cost between $1,000-$15,000, with
monthly operating costs depending on one's goals and the Web site's traffic.
Commercial online services such as American Online allow subscribers to create
Web pages free of charge (fact 76)."
 Id at 832.
Of course, costs for a computer, modem, software and internet access account
must be absorbed for a user(s) to be a participant in cyberspace.
Id at 837.
Id at 843.
Id at 842.
Id at 844-45.
Id at 845.
See de Sola Pool supra note 71 at 224.
ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996). The federal district court panel
ruled on the "indecency" and "patently offensive" provisions of the
Communications Decency Act of 1996, Sec. 223(a) and Sec. 223(d), as contained in
the Telecommunications Act of 1996, Pub. L. No. 104-104, Sec. 502, 110 Stat. 56,
Abrams, 250 U.S. 616, 630 (1919).
Tornillo, 418 U.S. 241, 248-50 (1974).
ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996)
Id. at 883.
 Reno v. ACLU, 25 Med. L. Rptr. 1835 (1997).
 Id. at 1851.
 Id. at 1836. "The number of host computers...increased from about 300 in
1981 to 9,400,000 by the time of the trial in 1996. Roughly 60& of these hosts
are located in the United States. About 40 million people used the Internet at
the time of the trial, a number that is expected to mushroom to 200 million by
 Id. at 1837.
 Id at 1842 (citing Ginsberg v. New York, 390 U.S. 629 (1968) )
Id (citing FCC v. Pacifica Foundation, 438 U.S. 726 (1978) )
 Id (citing Renton v. Playtime Theaters, Inc. 475 U.S. 41 (1986) )
Id. at 1842, 1848.
Id at 1843.
Id at 1853.
 Id at 1854.
 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
Id. at 390. It should be noted that some believe that the scarcity rationale
may not be justifiable given the growth in the alternatives available to the
average viewer. See generally The Message in the Medium: The First Amendment on
the Information Superhighway, 107 HARV. L. REV. 1062, 1070-1077 (1994).;
Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied 493
U.S. 1019 (1990). The FCC repealed the fairness doctrine in 1987 on the basis
that the scarcity rationale was obsolete.
Red Lion, 395 US 367.
Pacifica, at 748. 18 U.S.C Section 1464 (federal law has prohibited the
broadcasting of indecent material since the Radio Act of 1927).
Id. at 729, 751-55. The seven dirty words in Carlin's monologue are the
following: "shit, piss, fuck, cunt, cocksucker, motherfucker and tits."
Id. at 730-33.; See also In re Citizen's Complaint Against Pacifica
Foundation, 56 F.C.C. 2d 94.
Id. at 750-51.
Id. at 748.
Id. at 748-49.
Id. at 749.
See Action for Children's Television v FCC (ACT III), 11 F.3d 170. A brief
history of the FCC's indecency and "safe harbor" regulation is provided at
172-173.; See also Action for Children's Television v. FCC (ACT III), 58 F.3d
654 (CA DC 1995).; Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.
Cir. 1988) ("ACT I"); Action for Children's Television v. FCC, 932 F.2d 1504
(D.C. Cir. 1991, cert. denied 112 S. Ct. 1281 (1992) ("ACT II"); Two years ago,
the Supreme Court refused to review the constitutionality of ACT III and the
safe harbor ban. Supreme Court Will Not Hear Indecent BroadcastingCases, BNA
WASH. INSIDER, January 10, 1996. Currently the safe harbor is from 10 p.m to 6
Sable Communications of Calif., Inc. v. FCC, 492 U.S. 115 (1989).
Id. at 131.
Id. at 122.
See Jerry Berman and Daniel Weitzner, Abundance and User Control: Renewing the
Democratic Heart of the First Amendment in the Age of Interactive Media, 104
YALE L.J. 1619, 32-35 (1995). Users take more steps to access material on the
Internet than in broadcasting. Current affirmative steps are already available
to help control objectionable material from the users standpoint.
Reno v. ACLU, 25 Med. L. Rptr. 1844 (1997).
Id at 1851.
Id at 1849.
United States v. Thomas, CR-94-20019-G (W.D. Tenn. Dec. 13, 1994) (conviction
and foreiture order).; See also William S. Byassee, Jurisdiction of Cyberspace:
Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV.
197, 208-09 (1995). The Thomases were convicted on 11 counts of transporting
obscenity. Robert Thomas was sentenced to three years and one month in prison,
while Carleen received a two-and-a half years.
Id. Subscribers to the Thomases adult BBS were required to use a credit card
and consent. Amateur Action BBS had been operating since 1991.
Id. The images included depictions of incest, oral sex, sadism and bestiality.
Postal Inspector David H Dirmeyer asked Robert Thomas if he would like to have
child pornography sent to him in California. Video tapes were also received in
the mail from Thomas to Dirmeyer in Tennessee containing sexually explicit
pornography. The case therefore involves two types of obscenity: that which was
obtained in the mail, the other which was received electronically by means of
Id. (18 U.S.C. Section 1465.)
Id. (18 U.S.C. Section 1462.)
Id. The Thomases were acquitted by the jury of violating child pornography
law. The other indictments included conspiracy (18 U.S.C. Section 371) and
forfeiture of the BBS computer equipment (18 U.S.C Section 1467.)
David Loundy, Whose Standards? Whose Community? CHICAGO DAILY LAW BULLETIN,
August 1, 1994 at 5. Oddly enough the Thomases were previously raided by the San
Jose Police Department, but the material on the BBS wasn't sufficient to produce
any indictments. Given the earlier raid, the Thomases were surprised by being
hauled into a Memphis Court.
ACLU v. Miller, 977 F. Supp 1228 (N.D.G.A., 1997)
ALA v. Pataki, 969 F. Supp. 160 (S.D.N.Y., 1997).; The Georgia and New York
rulings, realesed before the Supreme Court's decision on the CDA, were issued
on the same day. See Robert Mcfadden, Internet Laws Overturned in Two States,
NEW YORK TIMES, June 21, 1997 at 23.
A Family Friendly Internet, (visited 3/10/98)
Clinton Administration, A Framework for Global Electronic Commerce, (visited
Ronald J. Palenski, Tech-Related Bills Pile Up in Congress, NATIONAL LAW JOUR,
February 2, 1998 at C1.; Meddling with the Internet: Senate Bills Raise New
Censorship Issues, ON-LINE NEWSLETTER, March 1, 1998 (available on LEXIS).
S. 1482, 105th Congress (introduced by Sen. Dan Coats (R-Ind.), November 8,
H.R. 1180, 105th Congress (introduced by Rep. Joseph McDade (R-Pa), March 20,
S. 1619, 105th Congress (introduced by Sen John McCain, November 8, 1997)
H.R. 2791, 105th Congress (introduced by Rep. Marge Roukema (R-N.J.), October
31, 1997); S. 1356, 105th Congress (introduced by Sen Lauch Faircloth (D-N.C.)
Leading Internet Erotic Content Provider Proposes New ".Adult" Section of World
Wide Web, BUSINESS WIRE, Febraury 10, 1998 (available on LEXIS); See also April
Mara Major, Internet Red Light Districts: A Domain Name Proposal for Regulatory
Zoning of Obscene Content, JOHN MARSHALL JOUR OF COMP & INFO LAW 21 (1997).
See Berman and Weitzner supra note 129.
 See Andrew Rozmiarek Smut Blocker WIRED October, 1995 at 165. SurfWatch
is a filtering software program that blocks access to any Web files or sites
containing pornographic material. A team of college students search for this
material, relay the information to the editors of the software who will update
their list of objectionable sites. Editors try to block material that "parents
and educators" would not want their 14 year-old to see. Updates can be obtained
monthly at an ftp site for $6 a month. Customizing versions of the software,
giving parents further content control, won't be available until next year. The
filter is not a perfect censoring device, and can be turned off by parents
wishing to access adult material.; ACLU v. Reno, 929 F.Supp 824 (E.D. Pa. 1996).
In its opinion, the three-judge panel describes a few of the growing number of
software technology and filtering services like Cyber Patrol and Net Blocker
Plus that are available in the marketplace.
See Steve Lohr Industry Seeks Means to Filter Internet Content NEW YORK TIMES
September 11, 1995 at D1. Members of the group include Microsoft, IBM, Apple
Computer, Netscape Communications, AT&T, MCI Communications, America On-line,
Prodigy, CompuServe and others. The consortium would create standards called
Platform for Internet Content Selection (PICS). PICS would include devising a
system that could rate materials, allowing parents to select what would be
appropriate. "Parents could determine what Internet sites their children could
tap into or they could adopt the rated lists that are expected to be supplied by
outside groups, possibly ranging from the American Civil Liberties Union to the
See generally Justin Brown, International Attempts to Curb Content in
Cyberspace, paper presented at the "New Media, Free Speech: Challenges for the
Future Conference," co-sponsored by the Mass Communication & Society Division of
AEJMC and the School of Communications, University of South Florida, April
2-4th, 1998.; See also Karen Sorrenson Silencing the Net - The Threat to Freedom
of Expression On-line, 1 MONITORS 1 (1997) (visitied March 10, 1998)
<http://www.cwrl.utexas.edu/~monitors/1.1/index.html/>; A. Michael Froomkin
,The Internet as a Source of Regulatory Arbitrage, in BRIAN KAHIN & CHARLES
NESSON, BORDERS IN CYBERSPACE (1997).; John T. Delacourt, Recent Development:
The International Impact of Internet Regulation, 38 HARV. INT'L L.J. 207 (1997);
Censorship on the 'Net; The View from Overseas, NETWORK WORLD, October 27, 1997
at 54.; See Robyn Forman Pollack, Creating the Standards of a Global Community:
Regulating Pornography on the Internet - An International Concern, 10 TEMP.
INT'L & COMP L.J. 467 (1996); Amy Kroll, Any Which Way But Loose: Nations
Regulate the Internet, 4 TUL. J. INT'L & COMP L. 275 (1996); Chris Nerney, Net
Freedom Limited Abroad, NETWORK WORLD, July 1, 1996 at 1.; Censorship Issues on
the Internet Continue to Confuse Governments NEW MEDIA AGE, January 12, 1996 at
 See A. Michael Froomkin supra note 153.
 See David R. Johnson and David Post, Law and Borders - The Rise of Law
in Cyberspace, 48 STANFORD L. REV. 1367 (1996).
See David Post, Anarchy, State and the Internet: An Essay on Law Making in
Cyberspace, JOURNAL OF ON-LINE LAW (1995), (visited Sept. 3,
See Lawrence Lessig, The Zones of Cyberspace, 48 STANFORD L. REV 1403, 1406
See Timothy Wu, Cyberspace Soveirngty? - The Internet and the International
System, 10 HARV. J. LAW & TECH 647, 665 (1997).
Henry H. Perritt, Jr., Jurisdiction in Cyberspace: The Role of Intermediaries,
(visited Oct. 4, 1996) <http://www.law.vill.edu/harvard/article/harv96k.htm>.
Joanna Zakalik, International Jurisdiction and Conflict of Laws in Cyberspace,
(visited Feb. 20, 1997), <http://www.libraries.wayne.edu/~jliman/pzakalik.html>.
See Sorrenson supra note 153.
 See generally Berman and Weitzner supra note 129; Anne Wells Branscomb,
Anonymity, Autonomy, Accountability, Challenges to the First Amendment in
Cyberspace, 104 YALE L. REV. 1619 (1995).; BILL GATES, THE ROAD AHEAD (1995),
STEPHEN JONES, CYBERSOCIETY: COMPUTER-MEDIATED COMMUNICATION AND COMMUNITY
(1995); JONATHAN WALLACE & MARK MANGAN, SEX, LAWS AND CYBERSPACE (1996); Reno v.
ACLU, 25 Med. L. Rptr. 1833 (1997).
 See Berman and Weitzner supra note 129 at 1622.
JURGEN HARBERMAS, THE STRUCTURAL TRANSORMATION OF THE PUBLIC SPHERE (1992).
Id at 27.
See Fred Williams, On Prospects for Citizens' Information Services, in THE
PEOPLE'S RIGHT TO KNOW: MEDIA, DEMOCRACY, AND THE INFORMATION HIGHWAY, 1-24
(1994).; Sen. Pressler and Schieffer, A Proposal for Universal
Telecommunications Service, 40 FED. COMM. L. JOUR. 351 (1988).
See U.S. Dept. of Commerce, Falling Through the Net II: A Survey of the "Have
Nots" in Rural and Urban America (1998).; U.S. Dept. of Commerce, Falling
Through the Net: A Survey of the "Have Nots" in Rural and Urban America (1995).;
National Telecommunications and Information Administration, Connecting the
Nation: Classrooms, Libraries, and Health Care Organizations in the Information
Age (1995).; RAND, Universal Access to E-mail (last visited on 4/26/96)
See generally DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
See generally MICHEL FOUCAULT, THE ORDER OF THINGS (Vintage Books ed. 1994)
 See Richard Dyer, White, 29 SCREEN 44-64 (1988); Richard Dyer,
Introduction, in THE MATTER OF IMAGE: ESSAYS ON REPRESENTATION 1-5 (1993).; Bell
Hooks, Eating the Other: Desire and Resistance, in BLACK LOOKS: RACE AND
REPRESENTATION 21-39 (1992).; Cameron Bailey, Nigger/Lover: The Thin Sheen of
Race in 'Something Wild' 29 SCREEN 28-40 (1988).
 WILLIAM GIBSON, NEUROMANCER (1984).
 See Harvey note 169 at 10.
Id. at 11.
 Id. at 13.
Id. at 16-17.
See Elizabeth Reid, Virtual Worlds: Culture and Imagination, in CYBERSOCIETY:
COMPUTER-MEDIATED COMMUNICATION AND COMMUNITY (1995).
See Harvey note 169 at 44.
Id at 48.
See Foucault note 170 at 144.
See generally Stephen Cooper, Common Law and Privacy in Computer-Mediated
Environments 5 NEW JERSEY JOUR OF COMM. 167 (1997).
See generally Benjamin Compaine and Mitchell Weinraub, Universal Access to
Online Services: An Examination of the Issue, 21 TELECOMMUNICATIONS POLICY 15
(1997).; Marlin Blizinski and Jorge Reina Schement, Rethinking Universal
Service: What's on the Menu?, paper presented at the Telecommunications Policy
Research Conference, Solomons, Maryland, October 5-7, 1996.
See generally, Karen Rupp-Serrano, Copyright and Fair Use: A Policy Analysis,
14 GOV. INFO. QUARTERLY 155 (1997).; Matt Jackson, Linking Copyright to Home
Pages, 49 FED COMM L. JOUR. (1997).
See generally R. Michael Hoefges, A Survey of State Retraction Statutes: Would
they Apply in Defamation Action Against Online News Service?, paper presented at
the AEJMC Convention, Anaheim, CA, August 10-13, 1996.; Kimberly Dalianis,
Internet Access Providers and Defamation: Who Foots the Bill When Users Misuse?,
paper presented at the ICA Convention, Montreal, Que., May 22-27, 1997.
 For excellent overviews of the Internet's affects on telecommunications
law and policy see generally, Kevin Werbach, Digital Tornado: The Internet and
Telecommunications Policy, (last visited April 12, 1997)
TELECOMMUNICATIONS UNION, CHALLENGES TO THE NETWORK: TELECOMMUNICATIONS AND THE
See generally ASPEN INSTITUTE, INTERNET AS PARADIGM (1997).