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.