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But
as technology has revolutionized the way information -- “content” in
today’s dismissive jargon -- is transmitted and received, there has been a
generally reassuring willingness of the courts to afford First Amendment
protection to the newer forms of technology.
The Internet has fared particularly well, with rulings such as Reno v. ACLU, 521 U.S. 844
(1997), providing broad First Amendment protection against politically popular
efforts to shield children -- and, inevitably, adults as well -- from certain
materials carried on the Internet. In
that case, the U.S. Supreme Court refused to subordinate the constitutionally
protected interests of adults to the asserted interest of protecting children
from available material on the Internet. In its most significant judicial ruling involving the First Amendment in
2000, the Supreme Court once again vindicated First Amendment interests in a
case involving a clash between the constitutionally protected right of adults
and the protection of children. In
striking down Section 505 of the Telecommunications Act of 1996 in United
States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000), the
Supreme Court not only protected First Amendment interests against serious
competing values, but did so in an opinion likely to be cited in First Amendment
cases well outside the telecommunications area. The facts of the Playboy case
are set forth in Robert Corn-Revere’s summary in this volume.
The case involved a challenge to Section 505 of the Communications
Decency Act, relating to “signal bleeding.”
An earlier provision of the Act required cable operators, without charge,
to “fully scramble” or otherwise “fully block the audio and video
programming” of any channel on the request of a customer who did not subscribe
to the channel. Section 505
went a step further. Targeting adult cable networks only, the section imposed a scrambling
requirement in advance for all households regarding “sexually explicit adult
programming or other programming that is indecent” transmitted on channels
“primarily dedicated to sexually oriented programming.”
Any such channel was obliged to be fully scrambled without any request by
a customer for blocking. If unable
to comply with the full scrambling requirements, cable operators were required
to cease transmitting such channels “during the hours of the day ... when a
significant number of children are likely to view it” -- a time period
later determined by the Federal Communications Commission to be between 6 a.m.
and 10 p.m. The only safe-harbor
hours for transmission were thus between 10 p.m. and 6 a.m. The majority of the Court, in an opinion of Justice Kennedy, concluded
that since “the only reasonable way for a substantial number of cable
operators to comply” with the statute was to mute the affected channel “for
two-thirds of the day in every home in a cable service area, regardless of the
presence or likely presence of children or the wishes of the viewers,” the
statute was subject to “rigorous scrutiny.”
Taking a markedly different approach to the burden of proof to be applied
in such a case than the Court had recently done in City
of Erie v. Pap’s A.M., 120 S.
Ct. 1382 (2000), the Court required the government to make a serious in-court
showing of the magnitude of the signal bleed problem.
If, as the government claimed, millions of children were being exposed to
signal bleeding, the Court concluded that “[w]e, like the district court,
would have expected to be directed to more than a handful of complaints.”
Concluding that “anecdote and supposition” could not suffice to meet
the government’s burden, the Court held that the government had failed to
persuade it that the statute could stand.
That this analysis should have been offered in the same term of the Court
as its ruling in the City of Erie case
makes it all the more striking. There,
in affirming the constitutionality of a statute banning nude dancing, the Court
peremptorily dismissed the claim
that the government had failed to demonstrate that a statutory requirement that
dancers wear pasties and a G-string would have any effect of a sort to justify
the legislation. In language
similar to some of the Court’s more woeful commercial speech cases that
deferred, as if by rote, to the
“common sense” judgment of state legislatures, the Court in City
of Erie deferred to “the City's expert judgment ... in the absence of
any reason to doubt it.” It may well be that the Court’s decision in the City
of Erie case simply reflects its judgment that the speech there was of such
low value that the proprietors of nude dancing establishments should, after all,
be grateful that such activity receives any First Amendment protection at all.
Since nude dancing, Justice O’Connor said, “falls only within the
outer ambit of the First Amendment’s protection,” the Court was unwilling to
view seriously the constitutional challenge.
The Playboy decision, however,
comes directly to grips with that approach, concluding: We
cannot be influenced ... by the perception that the regulation in question
is not a major one because the speech is not very important.
The history of the law of free expression is one of vindication in cases
involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must
give us more than a moment’s pause. If
television broadcasts can expose children to the real risk of harmful exposure
to indecent materials, even in their own home and without parental consent, that
is a problem the Government can address. It
must do so, however, in a way consistent with First Amendment principles.
Playboy Entertainment Group, 120
S. Ct. at 1893. A
few pages later in the opinion, Justice Kennedy deals with the same subject in
language likely to be quoted in many briefs (and, one hopes, opinions) in the
future. Writing for the Court, he
states that:
Perhaps as important as the Court’s rejection of the notion that “low
value” speech should receive less constitutional protection is the
majority’s rejection of the notion that the mere incantation of a legislative
desire to protect children can overcome the constitutional rights of adults.
It has long since become routine for congressional efforts to restrict
what appears on television to then be justified as a required protection for
children. The perennial efforts of Sen. Fritz Hollings (D-S.C.) in that
regard offer only one example. The
Court offers a powerful reply in Playboy
when it concludes: “Even upon the assumption that the Government has an
interest in substituting itself for informed and empowered parents,” that
interest “is not sufficiently compelling to justify [a] widespread restriction
on speech.” The Playboy opinion offers yet
another piece of good news to First Amendment defenders.
The government had based its argument on the determination of the Court
in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), a case that egregiously
held that a zoning law barring adult motion picture theaters from certain areas
was not content based because it sought to avoid the “secondary effects” of
the presence of such theaters in residential areas.
Accordingly, the government sought a lower level of First Amendment
scrutiny to be applied in such cases. In
Playboy, the Court rejected that
approach, concluding that Section 505 was “the essence of content-based
regulation.” Given the Court’s ruling in Playboy,
how much further down the same road is it likely prepared to go?
In 2000, the U.S. Court of Appeals for the Third Circuit addressed the
constitutionality of the amendments adopted to the Communications Decency Act
known as the Child Online Protection Act (COPA).
Seeking to overcome the objections to the CDA that had led the Court to
hold that Act unconstitutional in its 1997 Reno
opinion, the Congress in COPA sought to criminalize “any communication for
commercial purposes” over the World Wide Web that is “available to any minor
and that includes any material that is harmful to minors.” The statute basically applies the three-part test for
obscenity set forth in Miller v.
California, 413 U.S. 15 (1973), as applied to minors.
In one of the more interesting opinions of the year, the Third Circuit in
ACLU v.
Reno II, 217 F.3d 162 (3rd Cir. 2000),
held the new statute unconstitutional. The
reasoning of the court is far-reaching. The
court concluded that since the Internet is “fundamentally and profoundly
anti-spatial” and a Web publisher cannot “even know the geographic location
of visitors to its site,” then any application of a First Amendment standard
based in Miller-like fashion upon
community standards could not stand.
Indeed, the court went so far as to say that Miller
itself “has no applicability to the Internet and the Web, where Web
publishers are currently without the ability to control the geographic scope of
the recipients of their communications.”
This ruling is obviously sweeping in its nature.
That is its attractiveness from a First Amendment perspective.
It is also its danger.
It is difficult to envisage this Supreme Court ruling that all obscenity
is immune from regulation because it appears on the Internet. Indeed, even if the Miller
test must be revised in some fashion to deal with the peculiar qualities of the
Internet, it seems unlikely -- I would say unthinkable -- that the
Court would conclude that Congress is completely without power to deal with
obscenity on the Internet.
The pages that follow describe a myriad of other judicial and legislative
forays into First Amendment terrain. Some
are yet to be decided. The conflict
in the circuits about the constitutionality of the Child Pornography Prevention
Act of 1996 discussed in the text will shortly have a Supreme Court resolution.
Other battles seem, at long last, to be ending.
The 20-year battle over the constitutionality of the FCC’s personal
attack and political editorializing rules seems, finally, to be over -- with the
U.S. Court of Appeals for the District of Columbia Circuit, in evident and
much-deserved disgust with the Commission’s unwillingness or inability to
decide the matter, finally ordering the FCC to abandon doctrines it could no
longer bring itself to defend.
And then there were some significant victories -- the reversal by
the U.S. Court of Appeals for the Fourth Circuit, for example, of two contempt
findings against a North Carolina newspaper and two of its journalists --
and some potentially serious defeats, including a ruling by the U.S. Court of
Appeals for the First Circuit against NBC with disturbing potential
ramifications. There is far more
contained in what follows, some promising, some less so.
But, in the end, the Playboy
case was the case of the year. It
was a First Amendment triumph.
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