Free Speech on the Internet
We got it! Now what?
- by David Matthews 2
On Thursday, June 26th 1997, the US Supreme Court gave the Internet the fullest possible protection of free speech against government censorship. In its support of a combined lawsuit against the Communication Decency Act, the justices rejected arguments from the Clinton Administration that the Internet was similar to television or radio. Instead, they said that the Internet was a public forum for the exchange of ideas and information that deserved as much First Amendment protection as print media, if not more.
As one of those who have been fighting the CDA since the moment retired Senator James Exxon introduced it back in 1994, I am ecstatic in knowing that even the highest court in America found it to be the wrong approach, and to do so with a decisive 7-2 majority.
So the CDA is dead. It’s stuffed in a coffin and buried. The government was spanked for violating the First Amendment. It’s done. Gone. History.
So what now?
Let’s be brutally honest here. The CDA may be dead, but the battle for free speech is just beginning. The focus now needs to be on the alternatives to legislation. We have the software, but all the programs in the world won’t stop legislators on a censorship tear. Sen. Rick Wyden in Oregon has been the biggest supporter of getting legislators aware on how the Internet works and getting them online. He believes that information will ensure legislators don’t come up with another CDA. I agree with his efforts in the Cyber Caucus, but it’s more than just making them aware on how the Internet works.
The CDA didn’t just pop out of the mind of the dishonorable former senator of Nebraska and come to life on it’s own. It got help from religious activists such as the Christian Coalition and "Enough is Enough" spokeswoman/lobbyist Donna Rice-Hughes. Not only do these folks know how the Internet works, but frankly THEY DON’T CARE! They don’t give a rat’s ass about your rights or if their standards will disrupt the Internet. They’d much rather see you in prison or in hell (or both in the case of the Christian Coalition). Worse yet, they have both money and connections in Washington. There is no doubt that after a "cooling off" period they’ll come up with CDA version 2.0 that will be just as bad as the original CDA if not worse because now they have an idea of what the justices consider to be a greater issue.
In addition, there are also more struggles yet to come. The US government may have been told "hands off" but there are still plenty of states that have passed laws similar to the CDA. And while some of them have already been successfully challenged in the courts, it’s uncertain how the Justices will respond to this challenge as well.
The news media, another enemy of the Internet, has already put their negative spin on the decision. According to the major news agencies this wasn’t a victory for cyberspace rights, but rather a defeat of the government in "protecting kids from pornography." They have bought into the spin of the moralists hook, line, and sinker. You couldn’t find better PR for the moralists if you PAID them! They forget that "indecency" and "patently offensive material" - which was how the unconstitutional law was WRITTEN - can include much more than just what some call "smut." This means discussions of homosexual issues, sexually-transmitted diseases, and breast cancer would also have been on the censorship chopping block. Anyone with a site that discussed those issues were also facing a felony conviction! Gee, I wonder why they didn’t mention that little tidbit? (If you’ve read my earlier articles, you know better than to answer that question.)
The way the media painted the CDA battle, they made it appear that it was "the ACLU and the porn industry" vs. the federal government. HARDLY! Here’s the short list of major players who went to bat against the CDA:
- American Civil Liberties Union
- Center for Democracy and Technology
- Voter Telecommunication Watch
- America Online
- Libertarian Party
- Wired Magazine
- American Library Association
In addition there were dozens of smaller businesses as well as the 50,000 plus individual members of the Citizens Internet Empowerment Coalition (including myself, one of the earlier members) who were also on the list of plaintiffs. In all three lawsuits were filed, two were merged and the third was heard separately in New York - which matched the Philadelphia decision almost word for word. This was essentially the whole Internet community versus the federal government! And much to the disappointment of the moralists and the media, WE KICKED ASS!
Remember, the news media REVEL in being able to trash the Internet. They are deftly afraid of ANY kind of medium that can compete with them that isn’t burdened as they are by regulators. To make matters worse, the Supreme Court gave the Internet FULL First Amendment protection - something that television has never been able to enjoy since it’s inception!
Now let’s go back to those programs for a minute. President Clinton, in responding to the CDA decision, said that now he’ll encourage software companies to develop filtering programs. Excuse me Bubba, but you apparently haven’t been keeping track of the Internet you claim to love! There have been numerous filtering programs available from SurfWatch to Cyber-Sitter to Net Nanny to Cyber Patrol. They’ve been around since 1994, when this whole issue first started! There is even a ratings system already in place! And even more precise forms of filtering software are in the works.
Anybody got Microsoft’s Internet Explorer? Do you know there’s filtering software ALREADY INSTALLED there? Click on "Options" in the menu to see what I’m talking about. And like Microsoft’s browser, you can get some of the filtering software FREE OF CHARGE depending on your Internet Service Provider. So Bubba, the technology has BEEN there. Even the Supreme Court - whom USA Today considered to be the most techno-phobic branch of government - recognized that. Where have YOU been?
Ironically, there has been some good to come out of the CDA battle. For starters, the Internet community banded together for the first time to counter essentially an outside threat: the federal government. This was actually the first time online rivals Netscape and Microsoft worked together! They were also forced to confront the serious issue of keeping kids out of adult sites. Alternatives to legislation, the filter programs, were introduced and developed. Judges were given a real education as to how the Internet works, even being given full access to the Internet so they can try it out themselves before making their decision. We have a witness for the Justice Department admit UNDER OATH that the filtering software works! And we have the highest court in the land granting the Internet the full protection of the First Amendment!
In short, the struggle for free speech is not a one-time affair. Even when we have First Amendment protection, we aren’t completely safe from censorship and those who are masters of censorship. We have the means, and for now we even have the courts on our side, but this can change at a drop of a hat. But we need to make sure that government doesn’t repeat these mistakes either through ignorance or for more tyrannical purposes. We need to say to ourselves and out loud the two words the Jewish people have been saying since the end of World War II : NEVER AGAIN!