By Stuart N. Brotman and Shiela Hawkins…

Over 20 years ago, the U.S. Supreme Court unanimously decided Reno v. American Civil Liberties Union (ACLU), which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying a strict scrutiny judicial review standard under the First Amendment, the Supreme Court concluded that unlike broadcasting (where the FCC’s “indecency” content regulation consistently has been upheld due to the unique characteristics of that medium), no government regulation would be constitutionally permissible – even for online child protection. This means that there continues to be no content restrictions (aside from child pornography) on what Internet users in the United States can send or receive online.

Justice John Paul Stevens, who wrote the opinion, presented historical and technical aspects of Internet development to illustrate its expansive nature and popularity. His explanation may seem a bit elementary, but the basic framework of the Internet remains the same today:

“Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services … ‘newsgroups,’ ‘chat rooms,’ and the ‘World Wide Web.’ All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium – known to its users as ‘cyberspace’ – located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”

The Court was especially impressed by the “extraordinary growth” that the Internet had achieved as of two decades ago. About 40 million people used the Internet at the time a lower court enjoined the Department of Justice from enforcing any of the law’s criminal penalties against indecent online content. Justice Stevens wrote that this number “is expected to mushroom to 200 million by 1999”; there now are over 275 million U.S. Internet users.

A Different Medium

Clearly, the Supreme Court understood that the Internet had unique characteristics that made it far different than the medium of broadcasting. Its opinion argued that the Internet, unlike earlier mass media, was not geographically constrained by spectrum limitations or local/national physical boundaries. The uniqueness of cyberspace meant that online access could be available to anyone, anywhere in the world, with an available Internet connection.

The Court also highlighted that the Internet, unlike broadcasting, was not freely accessible to all, since an Internet access fee must be paid by individuals to utilize an online connection. And the opinion noted that, “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 all kinds.”

Nevertheless, some have argued that the Court’s reasoning in Reno was based on a view of the Internet that only was in its nascent stages of development back then. Norton and Citron (2010), for example, assert that as the applications of the Internet continue to change, the Court’s prior understanding of the Internet may no longer be applicable. Snyder and White (2018) argue that the Court was using the wrong paradigm when hearing the facts of the case because regulation of Internet content is not the regulation of speech, but rather the regulation of the communications transport system. To them, the Reno interpretation of the Internet as a medium for speech is an oversimplification; with modern technological advances, they believe it has become archaic.

We strongly disagree. Admittedly, the Internet has developed in many unanticipated ways since Reno v. ACLU. The speed of transmission has dramatically increased through various broadband networks. Users also now access the Internet through both paid access and free WiFi connections, including numerous hotspots that are available both in private businesses and public locations. Content that is accessible on apps rather than websites now is more popular. Multiple devices provide online access today, from desktops to mobile laptops, tablets, and smartphones.

The more recent Supreme Court decision in Packingham v. North Carolina clearly underscores and updates the Court’s Reno assessment about the ongoing dynamics of Internet development. As Justice Anthony Kennedy, the author of this 2017 opinion, noted:

“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.”

A Pervasive Medium

The pervasiveness of the Internet in American life now is universally recognized; if anything, the passage of time has only underscored why the Internet remains as a mass medium unlike any of its predecessors. The constitutional analysis the Court applied in Reno, which found that the First Amendment prohibited the regulation of “indecent” online content, remains fully applicable today and in the foreseeable future.

This notable decision represents a stark contrast to another landmark case that dealt with “indecent” content available through a different form of mass media – broadcasting.  In Federal Communications Commission v. Pacifica Foundation, the Supreme Court dealt with “indecent” content played during a mid-afternoon radio broadcast. A complaint to the FCC alleged that a recorded monologue by comedian George Carlin that aired on New York City radio station WBAI-FM in the afternoon was “indecent.” The FCC subsequently sent a letter of reprimand to the station, censuring it for allegedly violating broadcast regulations that prohibited airing indecent material.

Although the U.S. Court of Appeals for the District of Columbia Circuit reversed the FCC’s assertion of this regulatory authority as an unconstitutional violation of the First Amendment, the Supreme Court overturned that decision and decided in favor of the FCC. In a 5-4 decision, the Court found that restricting broadcasting content deemed by the FCC to be indecent was constitutionally permissible because of the unique nature of the broadcast medium.

The majority opinion, like Reno also written by Justice John Paul Stevens, stated that the Court had “long recognized that each medium of expression presents special First Amendment problems.” The Court must consider “the intrusive nature of radio and the presence of children in the listening audience.” It reasoned that the scarcity of broadcasting spectrum, the unique accessibility of broadcasting to children, and its availability without payment made radio an “undeniably public medium,” and as such, subject to government sanctions.

As World Wide Web inventor Tim Berners-Lee notes, “the web has become a public square, a library, a doctor’s office, a shop, a school, a design studio, an office, a cinema, a bank, and so much more.” Given the Internet’s emergence as the dominant streaming mass medium, it should reshape our notions of governmental authority over broadcast content, as well. Since identical broadcast content now travels ubiquitously over both traditional spectrum-based radio and television stations and through live-streamed online transmission, the conventional First Amendment lines that the Supreme Court has used to distinguish broadcast and Internet content now seems permanently blurred, perhaps fully indistinguishable. At a practical level, identical “indecent” content now may receive a different level of First Amendment protection by courts depending on how it is transmitted and received. This is certainly problematical.

Given the Internet’s now-clear dominance, it would be sensible to have broadcasting brought under its more robust constitutional protection rather than maintain a two-tier system under the First Amendment that is difficult to rationalize. So perhaps we are nearing a time when the Supreme Court will have to reconcile the Reno and Pacifica cases in a new case that illustrates this reality.

But in any event, time and technological changes have demonstrated that the Reno decision continues as a critical element in explosive Internet development. An open terrain for content, with a First Amendment firewall from government intrusion in place, contributes greatly to the powerful forces of its online supply and demand. The Reno precedent represents a free speech legacy for all those using the Internet as a vital source of news, information, and entertainment.

Guest Authors: Stuart N. Brotman is the Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. Shiela Hawkins is a doctoral candidate in the College of Communication and Information at the University of Tennessee, Knoxville. This article appeared here in the April 11, 2019, edition of Journalism History.

Works Cited

Berners-Lee, T. (2019, March 11). The World Wide Web turns 30. Where does it go from here? Wired.

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

Norton, H., & Citron, D. K. (2010). Government Speech 2.0. Denver University Law Review, 87(4), 899-943.

Packingham v. North Carolina, 582 U.S. ___ , 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017).

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

Snyder, W. C., & White, R. D. (2018). The nature of the revolution: Rethinking Reno to reflect the reality that the internet is part of the physical world. Albany Law Journal of Science Technology, 28(3), 45-78.