ACLU v. Reno: First Amendment Victory for Internet Free Speech

The First Amendment to the United States Constitution is perhaps the hallmark of what Americans often describe as their fundamental freedom. It represents a defining difference between the United States and many other countries that do not grant their citizens the rights of freedom of speech, religion, and the press.

Specifically, the First Amendment guarantees the right to freedom of religion and freedom of expression without government interference. Within that guarantee, freedom of expression encompasses the rights to freedom of speech, press, and assembly; the right 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 as applying to the entire federal government, even though it is only expressly applicable to Congress. Additionally, the Supreme Court has interpreted the due process clause of the Fourteenth Amendment as protecting First Amendment rights from interference by state governments. See U.S. Const. amend. XIV. (Legal Information Institute, 2005)

The most fundamental component of freedom of expression is the right to freedom of speech. This right permits people to express themselves largely without interference or constraint by government entities. These protections are not without limits: the Supreme Court requires the government — whether federal, state, or local — to provide substantial justification before interfering with speech based on its content.

A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may restrict speech that is likely to cause a breach of the peace or incite violence. The right to free speech extends to other mediums of expression that communicate a message.

That is where the internet comes in. Until relatively recently, freedom of speech concerns focused on oral speech and the written word. With the advent of the internet, however, an entirely new medium of expression emerged — one that had not been addressed in prior case law.

One of the first cases to address freedom of speech as it applies to the internet was ACLU v. Reno. Striking a resounding victory for the future of the First Amendment online, 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's initial attempt to regulate online speech, was passed in February 1996. By imposing content regulations across the internet — much as it had been done in broadcast television and radio — the CDA threatened the existence of the internet as a free medium of expression. In striking down this law, the ACLU helped preserve the internet as a free forum for ideas and commerce well into the 21st century.

To understand the full significance of the ruling, it is important to examine the individual opinions of the three judges on the lower court panel.

Chief Judge Sloviter wrote:

"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 began 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 suggests that Dalzell viewed cyberspace as analogous to print media — which, until that point, had received the most comprehensive, unmitigated First Amendment protection of any medium. When Dalzell arrived at his controlling metaphor for the case, he wrote:

"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 straightforward analogy to an existing medium, Dalzell went further, arguing that the internet possesses unique qualities not shared by 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." (pp. 191–192)

Dalzell argued that print media accomplishes none of these goals. Rather than treating print as an ideal, he warned that a harmful 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 concern was reinforced in another passage from Dalzell's opinion:

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

In Dalzell's estimation, cyberspace is superior to print precisely because it functions as print media with far fewer barriers to entry and a genuinely democratic diversity of voices — one in which powerful corporations and wealthy individuals hold no distinct advantage.

In a landmark 7-2 decision, 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, joined by Chief Justice Rehnquist, concurred with the overall judgment while dissenting in part on narrower grounds.

ACLU Executive Director Ira Glasser praised the ruling as an unprecedented breakthrough in the fight to protect free speech into the next century, speaking at a live "cyber-cast" news conference at the ACLU's national offices in New York.

"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)