IP: When Uncle Sam Gets Out of Line, Good Lawyers Are the Best

[Dave Farber <farber () central cis upenn edu>]

WHY WE'LL WIN


When Uncle Sam Gets Out of Line, Good Lawyers Are the Best Revenge


by Mike Godwin


We lawyers don't usually like to talk about ongoing cases. But when it
comes to our legal challenges to the Communications Decency Act (CDA), I'm
not my usual shy and retiring self. I think we're going to win this battle,
largely because of three killer arguments that show how this Net censorship
legislation is unconstitutional.


Our first argument is grounded in the liturgy of the First Amendment:
"Congress shall make no law ... abridging the freedom of speech, or of the
press...." Net.libertarians sometimes forget that those gospel words have a
few narrow exceptions - fraudulent speech is not protected, for example,
and neither is perjury. Likewise, "obscene" speech enjoys no First
Amendment protection, since its "prurient" sexual content lacks "serious"
literary, artistic, political, or scientific value.


But the CDA doesn't target arguably obscene items like Dirty Debutantes or
even Debbie Does Dallas. Instead, it effectively bans a broad class of
fully protected speech from public forums on the Net.


By criminalizing "indecent" and "patently offensive" speech in cyberspace,
Senator James Exon and the Christian Coalition's self-serving censors waded
into a constitutional swamp. Unlike "obscene" material, content that is
merely "indecent" or "patently offensive" is protected by the First
Amendment. Of course, the Supreme Court has held that "indecent" speech can
be regulated (but not banned altogether) in the broadcasting arena. Even
so, the Feds have constitutional authority to regulate broadcast content
only because of what the court calls the "scarcity" of broadcast
frequencies and the "pervasiveness" of broadcast media. To prove that Uncle
Sam has no general authority to regulate protected content in cyberspace,
we'll argue that the Net has no problem with either "scarcity" or
"pervasiveness."


That's easy to show. After all, the Net doesn't suffer from "scarcity" in
the sense in which the court uses that term. Add an Internet node, and -
boom! - you've just increased the capacity of the Internet. Similarly,
"pervasiveness" has a special meaning in the context of broadcasting that
doesn't apply to the Net. A "pervasive" medium pushes content at passive
recipients, but net.users actively make choices to pull content into their
computers. In short, net.users may be geeks, but they're not couch
potatoes.


Secondly, we'll argue that the terms for the types of speech criminalized
by the CDA are unconstitutionally vague and overbroad. Here, the focus will
be on two categories of material prohibited by the legislation: 1)
"indecent" content and 2) "any comment, request, suggestion, proposal,
image, or other communication that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs." That wordy second category
sounds more specific - and far more pornographic - than it really is; in
fact, it's just a regurgitation of the FCC's current definition of
"indecent" content.


When the Family Research Council's Minister of Truth, Cathy Cleaver,
pretends that these prohibited categories of speech are synonymous with
pornography, she's telling the Big Lie. Nearly two decades ago, the Supreme
Court acknowledged that "indecent" content need not include elements that
are intended to be sexually arousing. This is why comic material such as
the monologs of Lenny Bruce and George Carlin, or even Allen Ginsberg's
poem "Howl," can be regulated on TV and radio. "Indecent" or "patently
offensive" speech is often crude and perhaps inappropriate for some kids,
but a potentially "indecent" political statement like "Fuck censorship!"
hardly qualifies as smut.


Should such statements be banned from public spaces of the Net? If Janet
Reno believes that they should, then the CDA is "unconstitutionally
overbroad." And our mere uncertainty about her answer to that question
demonstrates that the boundaries of these prohibited categories of speech
are, in and of themselves, "unconstitutionally vague."


Third, we'll try to prove that the CDA flunks the "least restrictive means"
test imposed by longstanding First Amendment precedent. Suppose the
government wins the other two challenges: It still can't prove that the
criminal prohibitions mandated by the CDA are the "least restrictive" way
to prevent inappropriate content from reaching children. We'll show that
software filters such as SurfWatch, parental-control features such as those
offered by America Online, and content-labeling schemes such as PICS are
easily implemented alternatives to the CDA that don't turn the Internet
into a paradise of the lowest common denominator by dumbing the level of
discourse down to what's acceptable for children.


All three of these First Amendment arguments boil down to one simple
proposition: that anything legal in a Barnes & Noble bookstore or the New
York City Public Library should also be legal in the public spaces of the
Net. Even the CDA's strongest champions stumble when trying to refute this
statement.


And that, in a nutshell, is why I believe we will win.


###


AUTHOR'S BIO: Mike Godwin is a lawyer for the Electronic Frontier
Foundation, which is  a plaintiff in the first lawsuit to challenge the
Communications Decency Act. His book, "Cyber Rights: Free Speech in the
Digital Age," will be  published by Random House this fall.




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