Date: Fri, 14 Jun 1996 11:02:26 -0700
Subject: ANALYSIS: "Sweet Words of Freedom"
THE CDA DISASTER NETWORK
June 14, 1996
I send apologies for my silence amid all the CDA euphoria, but I've been a
busy boy of late, with lots of articles to write, and so on.
I spent most of the day on Wednesday digesting the 200 pages of the
Philadelphia decision, and yesterday, I wrote an analysis of the ruling for
HotWired. I'm passing it along here for your reading pleasure.
(HotWired has prepared a Special Report on the CDA decision, including
Louis Rossetto's "Victory!" editorial, Declan McCullagh's preview of
"What's next," and a section of shrill reaction comments from free speech
opponents. You can check it all out at http://www.hotwired.com/)
If you have ANY further questions or comments about the Philadelphia
decision, PLEASE pass them along to me via email. I'll compile your
questions in hopes of answering them for all to see in the days ahead.
These are happy days...
Hope you're enjoying them.
Work the network!
Sweet Words of Freedom --
The CDA Decision: A prose poem in praise of free speech on the Net.
CDA Special - HotWired
by Todd Lappin
In the end, the CDA decision wasn't just a victory for free speech
- it was also a crushing rout of the self-righteous moralists who have
argued that the First Amendment doesn't extend into cyberspace.
When the trial began in March, Judges Dolores Sloviter, Ronald
Buckwalter, and Stewart Dalzell were online newbies. But by the time
they handed down their unanimous decision on 12 June, the judges
showed that they had figured out what the Internet is all about, and
why it deserves the broadest free speech protection possible.
Almost a third of the nearly 200-page decision - roughly 300 kilobytes
in electronic form - is devoted to "findings of fact," the basic facts
of the case as affirmed by the judges. Many of these findings seem
mundane to seasoned netizens, but bear in mind that when this case
moves to the Supreme Court, the justices will adopt the findings of
fact from the Philadelphia ruling in their entirety. Thus, while the
Supremes may differ in their interpretation of the facts, they won't
dispute the facts themselves.
In this respect, we made out pretty damn well. The findings of fact
paint an accurate picture of what the Net is, how it works, and why
it's both impractical and unnecessary for the government to regulate
what Internet users say to one another.
"Unlike traditional media, the barriers to entry as a speaker on the
Internet do not differ significantly from the barriers to entry as a
listener," the judges wrote. "In the argot of the medium, the speaker
can and does become the content provider, and vice-versa. The Internet
is therefore a unique and wholly new medium of worldwide human
From those sweet words, the judges go on to establish more crucial
facts in the case.
Rejecting the cyberporn scare-mongering of the traditional media, the
court determined that "there is no evidence that sexually oriented
material is the primary type of content on this new medium."
Defying the government's argument that the Internet should be
regulated like a broadcast medium, the court found that
"communications over the Internet do not 'invade' an individual's home
or appear on one's computer screen unbidden. Users seldom encounter
content 'by accident.'"
The judges recognized that "perhaps 40 percent or more of content on
the Internet originates outside the United States," and thus is not
subject to American jurisdiction. And finally, in a refreshing
acknowledgement of the damage that would be caused by the CDA's
stifling of free speech on the Internet, the court determined, as a
matter of fact, that "many speakers who display arguably indecent
content on the Internet must choose between silence and the risk of
prosecution. The CDA's defenses - credit card verification, adult
access codes, and adult personal identification numbers - are
effectively unavailable for noncommercial, not-for-profit entities."
In subsequent portions of the decision, each judge was given the
opportunity to present an individual analysis of why the CDA doesn't
pass constitutional muster.
Chief Judge Sloviter argued that the CDA's use of the terms "indecent"
and "patently offensive" are "inherently vague, particularly in light
of the Government's inability to identify the relevant community by
whose standards the material will be judged." Taking a withering swipe
at the "ban it all, then let the judges and prosecutors sort it out"
attitude of politicians on Capitol Hill, Sloviter adds:
"Whether Congress's decision [in adopting the language of the CDA] was
a wise one is not at issue here. It was unquestionably a decision that
placed the CDA in serious conflict with our most cherished protection
- the right to choose the material to which we would have access.... "
Judge Buckwalter, who issued an initial temporary restraining order
against enforcement of the CDA back in February, stated: "The CDA
attempts to regulate protected speech through criminal sanctions, thus
implicating not only the First but also the Fifth Amendment of our
Constitution." He then added, "The concept of due process is every bit
as important to our form of government as is free speech...."
Finally, there was Judge Stewart Dalzell, who displayed an admirable
ability to grok how the Internet functions as a tool for promoting the
democratic exchange of ideas. Say what you want about lawyers and
their tendency to speak in arcane doubletalk, Dalzell's analysis is a
model of plain-spoken praise of free speech on the Net:
"It is no exaggeration to conclude that the Internet has achieved, and
continues to achieve, the most participatory marketplace of mass
speech that this country - and indeed the world - has yet seen. The
plaintiffs in these actions correctly describe the 'democratizing'
effects of Internet communication: individual citizens of limited
means can speak to a worldwide audience on issues of concern to
them.... The Government ... implicitly asks this court to limit both
the amount of speech on the Internet and the availability of that
speech. This argument is profoundly repugnant to First Amendment
Dalzell concluded that "the Internet deserves the broadest possible
protection from government-imposed, content-based regulation" because,
as he puts it (paraphrasing a famous line of Justice Felix
Frankfurter's), "Any content-based regulation of the Internet, no
matter how benign the purpose, could burn the global village to roast
Judges Sloviter, Buckwalter, and Dalzell didn't conclude that the CDA
is "flawed." They didn't conclude that it can be fixed through minor
reworking of the statute's language. Instead, they concluded that its
prohibitions on free speech are unconstitutional "on their face." And
in the words of the court, "no party has any interest in the
enforcement of an unconstitutional law."
The judges in Philly figured out what the Internet is, how it works,
and what makes it unique. Their decision has been handed down, and the
word is out:
Fuck off, Uncle Sam. Cyberspace is where democracy lives.
Copyright © 1996 HotWired, Inc. All rights reserved.
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