ACLU v Reno: A definitive victory for free speech

The First Amendment in the United States of America's Constitution is perhaps the hallmark of what current President Bush refers to continually as our "freedom." It represents the fundamental difference between America and so many other countries that do not offer their citizens rights to freedom of speech, religion and the press.

Specifically, the First Amendment of the United States Constitution guarantees the right to freedom of religion and freedom of expression without government interference. See U.S. Const. amend. I. Within that, the concept of freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court and the lower courts interpret the extent of the protection afforded to these rights. The Supreme Court has interpreted the First Amendment to the Constitution as applying to the entire federal government even though it is only expressly applicable to Congress. Also, the Supreme Court has interpreted the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by any of the state governments. See U.S. Const. amend. XIV. (Legal Information Institute, 2005)

And indeed, the most fundamental component of freedom of expression is the right of freedom of speech. The right to freedom of speech permits people to express their thoughts largely without interference or constraint by government entities. Of course, these protections are not without limits: The Supreme Court forces the government -- whether federal or state or local -- to attach substantial justification for the interference with the right of free speech where it actually attempts to regulate the content of the speech.

However, a less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may preclude some speech that may cause a breach of the peace or cause violence. The right to free speech includes other mediums of expression that communicates a message.

And that is where the internet comes in. Until recently, the freedom of speech was concerned only with actual oral speech and written word. Today, however, with the advent of the internet, there is a whole different medium of expression that has not been accounted for in case law.

One of the first cases to address the freedom of speech as it applies to the internet was ACLU v. Reno. The decision of the three judge panel in ACLU v. Reno, issued June 11, 1996, grants the most complete First Amendment protection to the Internet imaginable. The three judges, Dolores K. Sloviter, Ronald L. Buckwalter and Stewart Dalzell, performed their functions to the fullest: These judges stayed away from political considerations, internalized the technical details of a new unfamiliar medium, searched successfully for the right judicial metaphor, and issued a decision which will serve to protect our freedom of speech well into the next century.

Since courts considering a new communications medium typically botch it on the first attempt, according to legal experts, the ACLU v. Reno ruling is especially remarkable.

Striking a gigantic and resounding victory for the future of the First Amendment on the Internet, the Supreme Court ruled in Reno v. ACLU that the federal Communications Decency Act (CDA) is an unconstitutional restriction on free speech, affirming a lower court decision.

The CDA, Congress' initial attempt to regulate the freedom of speech online, was passed in February 1996. In imposing content regulations throughout the Internet, much as in broadcast television and radio, the CDA intended to threaten the very existence of the Internet as a means of free expression. In striking down this oppressive law, the ACLU has helped maintain the Internet as a free forum for ideas and commerce well into the 21st century.

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As for the case itself, it is critical to view the three judges in the lower court's individual opinions were.

Chief Judge Sloviter said:

"Internet communication, while unique, is more akin to telephone communication...than to broadcasting...because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online." (p. 96)

Judge Dalzell begins his opinion with the statement that "the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only render the Act unconstitutional but also would render unconstitutional any regulation of protected speech on this new medium."

This statement hints that Dalzell may agree that cyberspace is similar to print media; only print heretofore received the comprehensive, unmitigated First Amendment...

However, when Dalzell, on the next to last page of his opinion, finally utters his idea of the controlling metaphor for the case, here is what he says:
"The Internet may fairly 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." (p. 215)

Rather than relying on a safe, literal minded analogy to an existing medium of the press and speech, Dalzell goes far beyond. He opines that the internet is a unique medium not subject to some of the failings of print:

"First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers." (191-192)

Dalzell opines that print media, in comparison, accomplish absolutely none of these goals. Rather than glorifying print, Dalzell feels that an unfortunate side effect of the CDA would be to reduce cyberspace to the level of print media:

"In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country." (pp. 196-197)

This belief is also belied in the following statement by Dalzell:

"This change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence." (p. 197)

As a result, cyberspace, in Dalzell's estimation, is better than print; this is because it can be construed as print with no or few barriers to entry, and a completely democratic diversity of voices, where powerful corporations and wealthy individuals have no distinct advantage.

Now, of course, we must examine the Supreme Court decision on the same case on appeal. In a landmark 7-2 decision written by Justice Stevens, the Supreme Court ruled that the CDA places an "unacceptably heavy burden on protected speech," and one that "threatens to torch a large segment of the Internet community." Justice O'Connor, with Chief Justice Rehnquist, concurred with the overall judgment while dissenting in part along more narrow lines.

American Civil Liberties Union Executive Director Ira Glasser praised the ruling as an unprecedented breakthrough in the fight to determine the future of free speech into the next century at a live "cyber-cast" news conference at the American Civil Liberties Union's national offices in New York.

According to Glasser, "This is why independent courts are required to protect liberty. Everyone knew the CDA was unconstitutional, but Congress passed the law and the President signed it. Today's historic decision affirms what we knew all along: cyberspace must be free." (ACLU, 1996)

The ACLU's lawsuit, launched on February 8, 1996, calls into legal question censorship provisions of the CDA law focused on protecting minors by criminalizing so-called "indecency" on the Internet.

The government appealed the case to the Supreme Court after a federal three-judge panel ruled unanimously in June of 1995 that the law unconstitutionally restricts free speech. (See above) A later suit, filed by the American Library Association (ALA v. DOJ), was consolidated with Reno v. ACLU in the lower court.

"The Court's decision was clearly heavily influenced by the wide range of socially valuable speech at risk under this law," said Chris Hansen, the ACLU's lead attorney in the case. "The ACLU brought forth witnesses in the lower court who testified that their speech about prisoner rape, abortion, safer sex practices, and a host of other sexually related topics of importance to minors and adults alike would be criminalized under the CDA." (ACLU, 1996)

In the opinion of the case, the Supreme Court said that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

"This decision is a ringing endorsement of free speech that was joined by Justices who range across the full spectrum of the Court," Hansen added, noting that the Supreme Court most definitely agreed with the ACLU's theory that the internet is analogous to the print, rather than broadcast medium, and as a result should be given full First Amendment protections. (ACLU, 1996)

The Supreme Court also mentioned the amazing speech-enhancing qualities of the internet, opining that "the growth of the Internet has been and continues to be phenomenal.…