Please Take A Moment To Celebrate How A Very Different Supreme Court Saved The Internet 25 Years Ago

from the can-we-please-not-have-to-do-this-again dept

The terrible, awful, no good, horrible plans to regulate the internet keep coming faster and furiouser these days. So, it’s worth remembering a time back when Congress passed one of the worst laws about the internet: the Communications Decency Act. Yes, these days we talk about the CDA more reverently, but that’s only because we’re talking about the one part of it that wasn’t declared unconstitutional: Section 230. Section 230, of course, was never even supposed to be a part of the CDA in the first place. It was crafted by then Representatives Chris Cox and Ron Wyden as an alternative approach to the ridiculousness that was coming out of Senator James Exon in the Senate.

But, you know, this is Congress, and rather than just do the right thing, it mashed the two approaches together in one bill and figured God or the courts would sort it out. And, thankfully, the courts did sort it out. Twenty-five years ago this week, the court decided Reno v. ACLU, dumped the entire CDA (minus Section 230) as blatantly unconstitutional, and, in effect, saved the internet.

Jared Schroeder and Jeff Kosseff wrote up a nice article about the 25th anniversary of the Reno decision that is well worth reading.

When faced with the first significant case about online expression, justices went in a completely different direction than Congress, using the Reno case to confer the highest level of protections on online expression.

The case started when a broad coalition of civil liberties groups, business interests, and others, including the American Civil Liberties Union, American Library Association, Planned Parenthood Federation of America, and Microsoft, sued. A three-judge panel in Philadelphia struck down much of the law, and the case quickly moved to the Supreme Court.

The federal government tried to justify these restrictions partly by pointing to a 1978 opinion in which the court allowed the FCC to sanction a radio station that broadcast George Carlin’s “seven dirty words.” Justices dismissed these arguments. They saw something different in the internet and rejected attempts to apply weaker First Amendment protections to the internet. Justices reasoned the new medium was fundamentally different from the scarce broadcast spectrum.

“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,” Justice John Paul Stevens wrote. “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.”

The article has a lot more details about the case, and why it’s still relevant. Also, how the messages from that ruling are still useful today as we are, once again, facing many attempts to regulate the internet.

The precedent’s relevance isn’t in the case’s dated facts or romanticized predictions. Its enduring value is in the idea the internet should generally be protected from government control. Without the Supreme Court’s lucid and fervent defense of online free speech, regulators, legislators, and judges could have more easily imposed their values on the internet.

There’s a lot more in that article, but go read it… on this very internet that would have been a very, very different place without that ruling.

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Comments on “Please Take A Moment To Celebrate How A Very Different Supreme Court Saved The Internet 25 Years Ago”

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45 Comments
Anonymous Coward says:

The court made a great decision allow the Web to grow as the most important communication medium since tv was invented that allows people to read talk to each other especially diverse minoritys and groups from all over the world.
Trying to treat it like radio cable TV would have been a disaster it’s more like a bookshop online library
Where anyone can write read and publish and maybe find an audience
People can make podcasts or YouTube videos that would never find an audience on tv
20 years ago no one thought People would pay or donate via patreon to watch people play video games
Or talk about politics and sport on audio podcasts
TV is broadcast for a general audience I think many video audio content on the Web is narrow cast eg it can reach a small audience interested in niche subjects 10 of 1000d of creators can live on donations from a few 1000 fans who
pay subs or watch ads on twitch or YouTube

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Anonymous Coward says:

The Supreme Court has made shitty decisions most of the time and the good they’ve done does not outweigh the bad. Section 230, Brown v. Board Of Education, Obergefell v. Hodges, Row v. Wade, were all good decisions in a wash of shitty ones.

The natural state of the Supreme Court is emblematic in decisions such as Dred Scott, demolishing Roe v. Wade last week, gutting the EPA’s ability to enforce environmental protection, fucking over First Nations and tribal lands, and continuing their gutting of voting rights by giving racist voting districts the go-ahead.

It’s an illegitimate institution made up of unelected aristocrats with life appointments. I’d love to see the the thing abolished.

Anonymous Coward says:

I do expect the states that ban abortion to make a push to outlaw bitcoins, Tor, and the dark web.

For states that intended to prosecute women who go out of state for an abortion, abortion clinics could have a presence on the dark web, and then use bitcoin, so your activities cannot be traced by law enforcement.

With Yor, and the darkweb, one who access an abortion clinic site, and their actiivities not visible to law enforcement.

I could well see some Congressperson or Senator from the South introduing a ban on VPNs, Tor, and Bitcoin.

Certain kinds of jammers that are legal, for now, I expect the states that ban abortion to push the FCC, when the next Republican administration comes into power to ban then, and I think some clinics are using them now.

Some places I drive in town now, I notice that my callular data dies, and my GPS app on my phone crashed.

ABortion clinics in California doing this to throw off law enforcement from other states are breaking FCC rules, as of right now, using such jammers to foil location tracking.

I could see anortion-illegal states, such as Arkansas, prosecuting them in their states for obstruction of justice, but FCC rules, at this time, do not make it illegal for abortion providers in California to use such jammers.

Obstruction of justice – Yes
Violation of FCC rules – No

Anonymous Coward says:

Re:

Jamming voice is illegal, but jamming it not, under current laws.

That is why I expect the FCC, during the Republican aministration, to change that.

If the Republicans take Congress and the Senate, which they are expected to do, I would not be surprised if Congress passes a bill, under pressure from states where abortion is illegal, to make it illegal to jam wireless data so they can have location tracking of women who go to abortion clinics in abortion-legal states.

Abortion clinics in California are not breaking either California law, or federal law, by deploying such jammers to foil location tracking.

Lostinlodos (profile) says:

And then…

The more you regulate, the more people bypass.

Regulate the internet? Sure. And onion pops up. Infiltrate that? Garlic pops up. Infiltrate that? Strawberry launches.

Regulation, like censorship, is routed around. I’d say take a street poll in any city and ask how many out of 1000 know what the “dark” web is and get 750 yeses. Ask if they’ve used it and get 250-500 yeses.

People will do what they do. Good luck to any government on stopping the flow of information.

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