Internet and Freedom of Speech

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The Internet is a worldwide network of networks that allows individuals to communicate in ways previously unimaginable. The two most popular forms of communication on the Internet are electronic mail and the World Wide Web. Through electronic mail, an individual can send a message—traditionally text but increasingly multimedia—to another individual, group of individuals, or to public forums. Through the World Wide Web, an individual can browse millions of pages of multimedia content that individuals, businesses, and other institutions have made available for public access. Individuals can also publish their own thoughts, complete orders and forms, and engage in commercial transactions.

The physical technology of the Internet comprises communication lines (imagine them as telephone lines), routers (specially designated computers that send packets of information to their proper addresses), and computers (which send, receive, and process the information transmitted). No single person or entity owns all this equipment. And no single national or international body governs the Internet. To understand this decentralized network, it is best to view the Internet as physical hardware, owned by myriad persons, both public and private, who all speak the same language of information exchange. That language, or protocol, is called TCP/IP (Transmission Control Protocol/Internet Protocol).

As individuals harness the Internet to expand their ability to speak and listen, they sometimes do so in harmful ways. Examples include anonymous defamation, e-mail death threats, and pornography accessible to children. When the state responds, it confronts the freedom of speech guarantee of the first amendment. But the scope of constitutionally protected freedom of expression differs among various communication technologies. As Justice robert h. jackson wrote in kovacs v. cooper (1949), "[t]he moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself."

The First Amendment has been most protective of the printing press; it has been least protective of television and radio broadcasting on the grounds of spectrum scarcity and intrusiveness. In red lion broadcasting co. v. fcc (1969), the Supreme Court upheld the Federal Communication Commission's fairness doctrine, which required a broadcast licensee to grant a right of reply to any individual or group that was personally attacked, and to any political candidate editorialized against. Although this requirement would not be tolerated in newsprint, as would be made clear in miami herald publishing co. v. tornillo (1974), it was accepted in broadcasting. The principal justification was that broadcasting employs the electromagnetic spectrum, which is a scarce resource, subject to easy interference by competing users. The use of this spectrum must therefore be licensed by the state and managed to ensure that the public receive "suitable access to social, political, esthetic, moral, and other ideas and experiences."

In addition to scarcity, the Court has emphasized the intrusiveness and pervasiveness of broadcasting. For example, in federal communications commission v. pacifica foundation (1978), the Court upheld regulations that channeled profanity on the radio to those hours when children were not likely to listen. According to the Court, the broadcast media had a "uniquely pervasive presence" in our lives, in which airwaves confronted us not only in public but also in the privacy of the home. Further, such broadcasting was uniquely accessible to children. These characteristics required tolerating more regulation.

Thus, traditional print and broadcasting mark the two extremes on an axis of First Amendment protection. The central question for governing any new communication technology has been its placement on that axis. Recently, the Court has struggled with the proper positioning of telephone communications in the context of dial-a-porn, as well as cable systems in the context of " must carry " laws (which force cable operators to carry certain speakers). The Internet's place on that axis was addressed for the first time in American Civil Liberties Union v. Reno (1997).

As part of the Telecommunications Act of 1996, Congress enacted the communications decency act. This act criminalized the knowing transmission of "obscene or indecent" messages to any minor through a telecommunications device. It also prohibited the knowing sending or displaying to a minor, through an interactive computer service, of any message "patently offensive as measured by contemporary community standards."

The Court rejected the broadcasting analogy. First, the spectrum scarcity rationale simply did not apply to the Internet, which "provides relatively unlimited, low-cost capacity for communication of all kinds." Second, information on the Internet was not so "invasive" as broadcast information. In contrast to broadcast profanity, which might shock an unexpecting listener changing radio stations, indecent content on the Internet does not generally arrive unexpectedly on one's computer screen. Instead, it must be more actively sought out. Finally, the Internet lacked the history of extensive government regulation that broadcasting had, and the Court was uninterested in starting one now. Having rejected the broadcasting analogy, the Court applied the rigorous standard for regulating the content of traditional print. Under this strict scrutiny, the indecency provisions were struck down as unconstitutional.

Jerry Kang


Thorne, John; Huber, Peter W.; and Kellogg, Michael K. 1995 Federal Broadband Law. Boston: Little, Brown.

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Internet and Freedom of Speech

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Internet and Freedom of Speech