This module explores the First Amendment freedoms of speech and press as applied to the Internet. The module consists of six units, each containing a principal case or cases, as well as related questions, notes and note cases. All cases have been severely edited to enable the students to focus on First Amendment doctrine, but students are urged to read the cases in their entirety when time permits.
With pornographic speech providing the context, the first three units discuss the position of "cyberspeech" on the continuum that runs from a nearly total absence of government regulation (the print model) to nearly unfettered governmental discretion to regulate (the broadcast model). They also illustrate the courts' application of various First Amendment doctrines - prior restraint, overbreadth, public forum, etc. - to on-line speech. Two subsequent units consider limitations on the First Amendment's power to protect speech-acts, including threats, trespass, and restraint of trade. The module concludes with a unit on libel, focusing on the changing view of Internet Service Provider liability.
A story is told about three blind men and an elephant. In attempting to describe the elephant, one blind man embraced the elephant's leg. "It's just like a tree," said the first blind man to his colleagues. "Nonsense," said the second blind man, who was caressing the elephant's trunk. "It's like a great, thick snake." "You are both wrong," exclaimed the third blind man, assaying the elephant's broad flank with both hands. "This elephant is like nothing so much as a huge wall."
The story is relevant to getting a handle on the First Amendment in Cyberspace because we are all somewhat blinded by our ignorance of the future of this wondrous technology. We can only guess where it is going and where it will take us. Like the blind men, we necessarily lack the full context in which the words of the First Amendment(1) will be brought to life by judicial application to various factual circumstances. And without that context, we are at something of a loss. As Professor Katsch has written, "the First Amendment is not simply a doctrine or set of rules, but a system which interacts with the communications environment of which it is a part."(2)
To strain our metaphor still further, one elephant is pretty much like any other. If you've seen - not merely felt - one elephant, you've seen them all. (Not really, but close enough.) One cannot say the same for the First Amendment, in Cyberspace or anywhere else. Complicating our task is the absence of a single, coherent First Amendment doctrine.
We have, for instance, no one Free Speech Clause test. We have different tests for content-based speech restrictions, for content-neutral speech restrictions, for restrictions imposed by the government acting as employer, for restrictions in nonpublic fora, and so on. This simply reflects the necessary recognition that the interests relevant to the Free Speech Clause inquiry - personal liberty, an informed citizenry, government efficiency, public order, and so on - are present in different degrees in each context.(3)
Nor is the Supreme Court in any great rush to clarify the situation. As Justice Breyer said in a case involving cable television, "[N]o definitive choice among competing analogies (broadcast, common carrier, bookstore) allows us to declare a rigid single standard, good for now and for all future media and purposes. ... [A]ware as we are of the changes taking place in the law, the technology, and the industrial structure related to telecommunications, ...we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now."(4)
In this module, we will first explore where cyberspeech lies in the continuum of communications media - what has been called the "battle of analogies"(5) - in an effort to find an appropriate context for First Amendment analysis. The U.S. Supreme Court has spoken only once on that issue, in Reno v. ACLU,(6) when it struck down Congress's first attempt to regulate "indecent" speech on the Internet.
Thus, our inquiry will not be limited to a theoretical characterization of the medium, but must also deal with the doctrine arising from the value of the message. The very word "indecent" embodies both; it first acquired legal meaning in the broadcasting context, and it refers to speech of inferior First Amendment value because of its sexual content.
Like the disfavored speech of "old leftists," Jehovah's Witnesses, and anti-Vietnam War protesters in times past,(7) pornography has become the lightening rod for First Amendment litigation in our era. A court's perception of the value of this speech will inevitably influence its judgment as to the appropriate analytical context. We look to scholars to draw the abstract distinctions that our "case or controversy" doctrine denies judges.
Considering how much law students enjoy reading erudite law review articles, however, this module will try to keep such readings to a minimum. Instead, we'll ask you to read the cases with a keener eye than you might otherwise do, beginning with the lower court opinions in ACLU v. Reno.
1. Congress shall make no law... abridging the freedom of speech, or of the press.... U.S. Const. amend. I.
2. M. Ethan Katsh, Software Worlds and the First Amendment: Virtual Doorkeepers in
Cyberspace, 1996 U. Chi. Legal F. 335, 338.
3. Village of Kiryas Joel v. Bd. of Ed. of Monroe County, 512 U.S. 687, 718 (1994)(O'Connor, J., concurring).
4. Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 742 (1996). See also Mark S. Kende, The Impact of Cyberspace on the First Amendment, 1 Va. J.L. & Tech. 7 (1997).
5. See Kende, supra note 4, ¶ 2.
6. 521 U.S. 844 (1997).
7. See, e.g., Schenck v. United States, 249 U.S. 47 (1919), Lovell v. Griffin, 303 U.S. 444 (1938), and United States v. O'Brien, 391 U.S. 367 (1968).