Celebrating Twenty Years of Free Speech Online

Written by Emma Llansó

Twenty years ago today, the Supreme Court announced its decision in Reno v ACLU, the first case in which the court considered the relationship between the First Amendment and the untested medium of the Internet. This was a pivotal case that required the court to grapple with the technical characteristics of this new communications medium and to consider how decades of First Amendment doctrine should apply to a technology beyond the Founders’ wildest dreams.

(Clips from the media coverage of the case, and links to writing by our colleagues across the web, can be easily found here.)

The court realized that the Internet was fundamentally a different kind of technology than radio or television: rather than requiring a scarce resource — spectrum — that could support a necessarily finite number of channels, the Internet “provides relatively unlimited, low-cost capacity for communication of all kinds.” The rationale for stricter government regulation of the speech on radio and broadcast TV didn’t apply when “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.” Thus, when the Court evaluated the Communications Decency Act (which prohibited the knowing transmission of “indecent” material to minors) in Reno, it applied the highest level of First Amendment protection to online speech and struck down the CDA as overbroad.

Not surprisingly, such wholesale transformation is giving rise to challenging issues of personal privacy, national security, and stability of our institutions. As we confront these challenges… we must not forget the promise that this open, borderless, abundant, and decentralized technology still bears.

Moreover, the court noted that parents could use tools that enabled them to block or restrict access to certain sites and material that they deemed inappropriate for their children. The Internet provides an experience more akin to going to a library or bookstore than the take-it-or-leave-it options on broadcast, and user-defined filtering is by definition a less restrictive approach than a top-down regulation of speech by the government.

This point would be developed over a number of cases dealing with subsequent online child protection laws, including the Child Online Protection Act (passed in 1998, permanently enjoined in 2009) and the Children’s Internet Protection Act (mandating filters in federally funded public libraries, upheld in 2003). CDT founders Jerry Berman and Danny Weitzner first outlined this argument in their 1995 article “Abundance and User Control;” John Morris and Cynthia Wong described how this argument was developed over 15 years of doctrine in their 2009 article “Revisiting User Control.”

Over the last 20 years, the Internet has enabled billions of people around the world to access an enormous wealth of information and ideas. It is transforming every aspect of our societies, large and small, from how our economies function and our elected officials govern, to how we acquire information about deeply sensitive issues and express our most intimate thoughts. Not surprisingly, such wholesale transformation is giving rise to challenging issues of personal privacy, national security, and stability of our institutions.

As we confront these challenges in the US and around the world, we must not forget the promise that this open, borderless, abundant, and decentralized technology still bears. Twenty years on from Reno, the Supreme Court is clearly still cognizant of this, with Justice Kennedy writing just last week, in the decision in Packingham v. North Carolina:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far-reaching that courts must be conscious that what they say today might be obsolete tomorrow.

Throughout its history, CDT has been fighting to ensure that law and policy are aimed at maintaining the Internet as an open, innovative technology that promotes civil liberties and human rights. We’re looking forward to the next 20 years of working to safeguard everyone’s ability to enjoy their right to free expression online.

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