By Eric Schlachter and Wendy R. Leibowitz
THE COMMUNICATIONS Decency Act is history, but the Supreme Court's decision in Reno v. ACLU, 96-511 (June 27, 1997) which struck down the statute, will live on in a few important ways. Here's a nutshell summary of what anyone who distributes content on the Internet -- whether by e-mail, Usenet, listservs, the Web or other means -- should know about the decision:
* The Internet is a different medium from radio or TV, and therefore, government regulation of the Internet will be subject to a different standard of scrutiny in the courts. Television and radio are heavily regulated, and the constitutionality of those regulations has been consistently upheld. In contrast, Reno v. ACLU shows that the courts are likely to apply strict scrutiny to Internet regulation, leaving a heavy burden on the government to defend any regulation.
Why This Matters: Some were concerned that the standard in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) would apply to the Internet, because the Pacifica case, which dealt with dirty words on the radio, justified government regulation of radio, in part based on the intrusiveness of the medium into the home. Despite the potential conclusion that the Internet similarly intrudes into the home, the Reno Court indicated that the affirmative steps required to access the Internet differentiate it from radio or television. It will be interesting to see how that concept fares as push technologies spread.
* Despite the foregoing, regulation of commercial speech or commercial entities on the Internet might be upheld.
Why This Matters: The opinion suggests that, if the statute were directed or limited to commercial speech or commercial entities on the Internet, it might have been upheld. By making such a statement, the Court appeared to be inviting Congress to redraft a statute that takes aim "only" at commercial speech or commercial entities. In that event, the Court might analyze the regulations under its commercial speech doctrines, in which intermediate scrutiny is applied -- meaning that such a regulation might be upheld.
* Internet speakers are not required to determine in advance who their audience is.
Why This Matters: The elimination of the burden for Internet speakers is very important to speakers in chat rooms and listservs, who never know who is on-line or who might be reading previous postings. Under the CDA as passed by Congress, a content provider had to assume the worst -- that a minor was going to be reading the material -- but under Reno v. ACLU, Internet speakers can assume the best: that only adults are reading the material. The Court expressly rejected the notion of a "heckler's veto" -- meaning that a person uncomfortable with the discourse could not induce self-censorship merely by asserting that a minor might be on-line.
* The opinion suggests that the "community standards" test may be problematic when applied to the Internet. On the Internet, "community standards" could mean that any communication available to a nationwide audience might not be judged by the standards of the community most likely to be offended by the message.
Why This Matters: The "most restrictive" community standard approach was applied in U.S. v. Thomas, 1996 Fed. App. 0032P (6th Cir. 1996), where California bulletin board operators were convicted of distributing obscene materials under Tennessee community standards.
In Sable Communications of Cal. Inc. v. FCC, 492 U.S. 115 (1989), the Court placed the burden on dial-a-porn operators to take whatever steps were necessary to comply with the community standards of each jurisdiction where the prerecorded message was made available. The Reno Court appears to suggest a deviation from the holdings in Sable and Thomas, away from applying the most restrictive standards to applying a more tolerant approach to community standards.
* The Reno Court (relying heavily on the district court's findings [at 929 F. Supp. 824 (E.D. Pa. 1996)]) defined the Internet for the first time. The definition of the Internet, particularly at the district court level, was clear and will serve as a resource for all future courts to cite. However, despite the excellent summary of the Internet made by the district court, Justice John Paul Stevens' opinion grouped disparate aspects of the Internet together, largely failing to distinguish between the technological differences in e-mail, newsgroups, listservs, chat rooms and the World Wide Web.
Why This Matters: Justice Stevens' opinion, by obscuring the technological differences in the ways people can be speakers on the Internet in the definition of the Internet, does not distinguish between situations in which the speaker knows the identity, age and other demographics of the listener and where the speaker has no knowledge of the potential listener's demographics. Rather than trying to craft different rules that would apply to different technologies, the Court treated all circumstances of speaking as being directed toward effectively anonymous listeners --a conclusion that, as it turns out, is most favorable to all Internet speakers.
Eric Schlachter is an attorney at Cooley Godward LLP in Palo Alto, Calif., and an adjunct professor of cyberspace law at Santa Clara University School of Law.
Wendy R. Leibowitz is the Technology Editor of The National Law Journal.