Why filtering is Unconstitutional

From Findlaw.com

The current filtering debate reminded me of the CDA debate from a few years ago, so I thought I would let the supreme court speak for me. The following paragraphs are taken from the Supreme Court Ruling on the CDA. While they did not rule on filtering perse, the text of the decision may apply to filtering. States that force libraries into filtering may find these laws ruled unconstitutional.

 


We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

Read on to make your own decision...

The special factors recognized in some of the Court\'s cases as justifying regulation of the broadcast media--the history of extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638; and its \"invasive\" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128--are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp. 22-24.


Although the Government has an interest in protecting children from potentially harmful materials, see, e.g., Ginsberg, 390 U.S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, supra, at 126. Its breadth is wholly unprecedented. The CDA\'s burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act\'s legitimate purposes.

On the other hand, the District Court found that currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available.

 


Second, the assertion that the CDA\'s \"knowledge\" and \"specific person\" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the \"specific person\" requirement would confer broad powers of censorship, in the form of a \"heckler\'s veto,\" upon any opponent of indecent speech.


(g)

The §223(e)(5) defenses do not constitute the sort of \"narrow tailoring\" that would save the CDA. The Government\'s argument that transmitters may take protective \"good faith actio[n]\" by \"tagging\" their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be \"effective\": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that §223(b)(5)\'s verification defense would significantly reduce the CDA\'s heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court\'s findings indicate that it is not economically feasible for most noncommercial speakers. Pp. 35-37.

\"[e]ach medium of expression . . . may present its own problems.\" Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers,

 


Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. 33 Moreover, the Internet is not as \"invasive\" as radio or television. The District Court specifically found that \"[c]ommunications over the Internet do not `invade\' an individual\'s home or appear on one\'s computer screen unbidden. Users seldom encounter content `by accident.\' \" 929 F. Supp., at844 (finding 88). It also found that \"[a]lmost all sexually explicit images are preceded by warnings as to the content,\" and cited testimony that \" `odds are slim\' that a user would come across a sexually explicit sight by accident.\" Ibid.

 


Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a \"scarce\" expressive commodity. It provides relatively unlimited, low cost capacity for communication of allkinds. The Government estimates that \"[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.\" 34 This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, \"the content on the Internet is as diverse as human thought.\" 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.


 


 


Having struggled for some time to establish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day:

\"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.\" Id., at 24 (internal quotation marks and citations omitted).

 

In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute\'s scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA\'s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.

 


 


We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

 


 


It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U.S., at 639; Pacifica, 438 U.S., at 749. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not \"reduc[e] the adult population . . . to . . . only what is fit for children.\" Denver, 518 U. S., at ___ (slip op., at 29) (internal quotation marks omitted) (quoting Sable, 492 U.S., at 128). 40 \"[R]egardless of the strength of the government\'s interest\" in protecting children, \"[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.\" Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983).

In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult to adult communication. The findings of the District Court make clear that this premise is untenable.

 


 


43 These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that \"[d]espite its limitations, currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available.\" Id., at 842 (finding 73) (emphases added).

 


 


. 45 The regulated subject matter includes any of the seven \"dirty words\" used in the Pacifica monologue, the use of which the Government\'s expert acknowledged could constitute a felony. See Olsen Test., Tr. Vol. V, 53:16-54:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.

 


 


The Government first contends that, even though the CDA effectively censors discourse on many of the Internet\'s modalities--such as chat groups, newsgroups, and mail exploders--it is nonetheless constitutional because it provides a \"reasonable opportunity\" for speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A \"time, place, and manner\" analysis is therefore inapplicable. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm\'n of N. Y., 447 U.S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government\'s own expert acknowledged, would cost up to $10,000 if the speaker\'s interests were not accommodated by an existing Web site, not including costs for database management and age verification). The Government\'s position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content--we explained that \"one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.\" Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939).

 


This argument ignores the fact that most Internet fora--including chat rooms, newsgroups, mail exploders, and the Web--are open to all comers. The Government\'s assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the \"specific person\" requirement of §223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a \"heckler\'s veto,\" upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child--a \"specific person . . . under 18 years of age,\" 47 U. S. C. A. §223(d)(1)(A) (Supp. 1997)--would be present.

 


 


The Government\'s three remaining arguments focus on the defenses provided in §223(e)(5). 46 First, relying on the \"good faith, reasonable, effective, and appropriate actions\" provision, the Government suggests that \"tagging\" provides a defense that saves the constitutionality of the Act. The suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriatesoftware. It is the requirement that the good faith action must be \"effective\" that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the \"tag,\" the transmitter could not reasonably rely on its action to be \"effective.\"

 


 


We agree with the District Court\'s conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of \"narrow tailoring\" that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U.S., at 127, we remarked that the speech restriction at issue there amounted to \" `burn[ing] the house to roast the pig.\' \" The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.

 


 


We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

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