The Internet, Freedom of Speech, and the CDA Mike Holmes CS 99 February 29, 2000

Introduction The Internet is a new medium, so few laws or ethical guidelines exist to control its content.The Internet is a new medium, so few laws or ethical guidelines exist to control its content. It is sufficiently different from other communication technologies that existing laws governing those mediums have been deemed inappropriate or inadequate for regulation of the Internet.It is sufficiently different from other communication technologies that existing laws governing those mediums have been deemed inappropriate or inadequate for regulation of the Internet.

The Internet is not like print because… Its content is rarely displayed out in the open, where it may be accidentally seen by those who do not wish to view it. (As opposed to in a bookstore window or at a newsstand.)Its content is rarely displayed out in the open, where it may be accidentally seen by those who do not wish to view it. (As opposed to in a bookstore window or at a newsstand.)

The Internet is not like a broadcast because… Its content is not broadcast over the airwaves, where one might accidentally “tune in” to it merely by turning on a device.Its content is not broadcast over the airwaves, where one might accidentally “tune in” to it merely by turning on a device. One cannot always specifically request to receive or not receive certain broadcasts. A radio or television antenna will pick up all available content.One cannot always specifically request to receive or not receive certain broadcasts. A radio or television antenna will pick up all available content.

The Internet is not like a telephone because… It is searchable.It is searchable. It is visual as well as aural.It is visual as well as aural. The content is generally stored instead of transitory.The content is generally stored instead of transitory. Communications are often open to the community.Communications are often open to the community.

A major attempt by the US Government to regulate Internet content: The Communications Decency Act (CDA) of 1996The Communications Decency Act (CDA) of 1996 Declared unconstitutional by a unanimous Supreme Court decision on June 26, 1997.Declared unconstitutional by a unanimous Supreme Court decision on June 26, 1997.

Questions Was the CDA ethical?Was the CDA ethical? Was it any more or less ethical than similar laws because of the nature of the Internet?Was it any more or less ethical than similar laws because of the nature of the Internet? Are any such laws ethical?Are any such laws ethical?

An example of some guidelines for content: “No…individual may use the Internet to harm national security, disclose state secrets, harm the interests of the State, of society or of a group, the legal rights of citizens or to take part in criminal activities.”“No…individual may use the Internet to harm national security, disclose state secrets, harm the interests of the State, of society or of a group, the legal rights of citizens or to take part in criminal activities.”

“No…individual may use the Internet to create, replicate, retrieve or transmit the following kinds of information:“No…individual may use the Internet to create, replicate, retrieve or transmit the following kinds of information: Inciting to resist or break the Constitution or laws or the implementation of administrative regulations;Inciting to resist or break the Constitution or laws or the implementation of administrative regulations; Inciting to overthrow the government…;Inciting to overthrow the government…; Inciting division of the country, harming national [unity];Inciting division of the country, harming national [unity]; Inciting hatred or discrimination…;Inciting hatred or discrimination…; Making falsehoods or distorting the truth, spreading rumors, destroying the order of society;Making falsehoods or distorting the truth, spreading rumors, destroying the order of society; Promoting…sexually suggestive material, gambling, violence, murder;”Promoting…sexually suggestive material, gambling, violence, murder;”

Terrorism or inciting others to criminal activity, openly insulting other people or distorting the truth to slander people;Terrorism or inciting others to criminal activity, openly insulting other people or distorting the truth to slander people; Injuring the reputation of state organs;Injuring the reputation of state organs; Other activities against the Constitution, laws, or administrative regulations.”Other activities against the Constitution, laws, or administrative regulations.”

The People’s Republic of China

Some controversial provisions of the CDA:

It is illegal to: “[initiate] the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication;”It is illegal to: “[initiate] the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication;”

It is illegal to: “[use] an interactive computer service to send to a specific person or persons under 18 years of age, or [use] any interactive computer service to display in a manner available to a person under 18 years of age, 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, regardless of whether the user of such service placed the call or initiated the communication”It is illegal to: “[use] an interactive computer service to send to a specific person or persons under 18 years of age, or [use] any interactive computer service to display in a manner available to a person under 18 years of age, 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, regardless of whether the user of such service placed the call or initiated the communication”

RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES UNION et al The Supreme Court case that decided that the CDA was unconstitutional.

The primary purpose of the CDA: To protect minors from viewing certain types of content which is legal for adults but which has been deemed harmful to children and teenagers.

Reasons why the CDA was struck down: The Internet is protected in a way that radio is not, because it is not considered “invasive.”The Internet is protected in a way that radio is not, because it is not considered “invasive.” It was vague, because “patently offensive” and “indecent” are subjective terms, and undefined in a legal sense. (Unlike “obscenity.”)It was vague, because “patently offensive” and “indecent” are subjective terms, and undefined in a legal sense. (Unlike “obscenity.”) Internet forums are so “open” that it is almost impossible for adults to avoid communicating in such a way that minors may see it. This would restrict adults’ ability to communicate.Internet forums are so “open” that it is almost impossible for adults to avoid communicating in such a way that minors may see it. This would restrict adults’ ability to communicate. Much useful and socially redeeming information would have been restricted.Much useful and socially redeeming information would have been restricted. Parents could not determine what their children may see.Parents could not determine what their children may see.

Ethical concerns of the CDA: The CDA presumes that being exposed to certain types of information is harmful.The CDA presumes that being exposed to certain types of information is harmful. It also presumes that certain types of information that are not harmful to adults are harmful to minors.It also presumes that certain types of information that are not harmful to adults are harmful to minors. Laws governing broadcast and print media presume that making it easy for people to accidentally come into contact with “harmful” information is unethical.Laws governing broadcast and print media presume that making it easy for people to accidentally come into contact with “harmful” information is unethical. The CDA presumes that it is easy to accidentally come into contact with “harmful” material on the Internet.The CDA presumes that it is easy to accidentally come into contact with “harmful” material on the Internet. The CDA also presumes that it is unethical for minors or their parents to be allowed to decide what information is harmful for them to intentionally view.The CDA also presumes that it is unethical for minors or their parents to be allowed to decide what information is harmful for them to intentionally view.

Also presumes that some information is harmful to all, and some is only harmful to minors.Also presumes that some information is harmful to all, and some is only harmful to minors. Presumes that the Internet is not a sufficiently invasive medium that the presence of material that is only “harmful to minors” is unethical due to the possibility of accidental exposure.Presumes that the Internet is not a sufficiently invasive medium that the presence of material that is only “harmful to minors” is unethical due to the possibility of accidental exposure. It is more unethical to restrict adults from communicating freely where minors may be present than it is to accidentally expose minors to material that may be harmful to them. It is more unethical to restrict adults from communicating freely where minors may be present than it is to accidentally expose minors to material that may be harmful to them. It is ethical to allow parents to decide what material is harmful to their children.It is ethical to allow parents to decide what material is harmful to their children. The Supreme Court/Constitution:

The CDA severely restricted adults’ ability to provide and to willingly and deliberately consume content that has been deemed not harmful to them. This was unethical because it greatly sacrificed the good of the individual to achieve a comparatively small (and debatable) gain in the good of society.The CDA severely restricted adults’ ability to provide and to willingly and deliberately consume content that has been deemed not harmful to them. This was unethical because it greatly sacrificed the good of the individual to achieve a comparatively small (and debatable) gain in the good of society. For a government to even define what information is inherently harmful or not harmful for people to expose themselves to is dangerous and unethical, because it presumes a monopoly on truth. It is a slippery slope from ruling that “it is harmful for you to view pornography” to ruling that “it is harmful for you to view criticism of the government.”For a government to even define what information is inherently harmful or not harmful for people to expose themselves to is dangerous and unethical, because it presumes a monopoly on truth. It is a slippery slope from ruling that “it is harmful for you to view pornography” to ruling that “it is harmful for you to view criticism of the government.” My Opinion:

It is ethical to restrict a few types of speech because they are materially harmful:It is ethical to restrict a few types of speech because they are materially harmful: Child PornographyChild Pornography LibelLibel Threats of violence, aka. “fighting words.”Threats of violence, aka. “fighting words.” Protected information (intellectual property, state secrets)Protected information (intellectual property, state secrets) “Indecent,” “patently offensive” and even “obscene” are subjective terms, and the ability to determine whether it is harmful for a person to view such material should lie solely with that person. To do otherwise is to restrict that person’s autonomy with no verifiable benefit to the person or to society.“Indecent,” “patently offensive” and even “obscene” are subjective terms, and the ability to determine whether it is harmful for a person to view such material should lie solely with that person. To do otherwise is to restrict that person’s autonomy with no verifiable benefit to the person or to society.

It is sometimes unethical to intentionally expose others to material that upsets (or “harms”) them against their will, but it should not be illegal, as no objective definition of what is upsetting or offensive can exist in a pluralistic society.It is sometimes unethical to intentionally expose others to material that upsets (or “harms”) them against their will, but it should not be illegal, as no objective definition of what is upsetting or offensive can exist in a pluralistic society. Even if it is illegal and/or unethical to expose others to such material against their will, the nature of the Internet is such that the vast majority of exposure to information is voluntary.Even if it is illegal and/or unethical to expose others to such material against their will, the nature of the Internet is such that the vast majority of exposure to information is voluntary.

In summary…

The CDA would have greatly restricted legal speech in its effort to restrict illegal speech. ( The Supreme Court struck down the CDA…in part due to the unique nature of the Internet. ( The CDA was not ethical because it greatly sacrificed the rights of the individual for no correspondingly great gain for society. Question if it is ethical for the government to determine that viewing certain material is somehow intrinsically harmful, even if the existence or distribution of the information is not materially harmful.