Reno vs.
ACLU remains the most important case
where the Supreme Court has had the occasion to give an opinion on the extent
to which the First Amendment right to free speech can be restricted in
controlling expressions through the cyberspace. The court, in a 7-2 decision, upheld
an earlier unconstitutionality determination of the anti-indecency provision of
the Telecommunications Act of 1996. The significance of Reno warrants a closer
analysis.
Commentaries
on Reno have since concentrated on rightness of the Supreme Court decision with
proponents of regulation charging that the court was wrong even as their
anti-regulation counterparts finding no fault with the Supreme Court. The
position taken by those against a regulated cyberspace seems to be the most
plausible for several reasons. First, by refusing to rely on earlier prior
precedents that affirmed the prohibition of pornographic materials directed at
children, the court was acknowledging the novelty of the internet as a
phenomenon. It is an acknowledgement that, in a way, called for a new approach
to this new phenomenon. In supporting its position, the government had relied on
the previous cases of Ginsberg v. New York,
FCC v Pacifica Foundation and Renton v Playtime Theatres Inc. All three
cases had upheld the various laws and others that were challenged. Nevertheless,
the Supreme Court chose to distinguish all those cases from Reno. The message
was further reinforced when the court rejected the government’s argument that
the CDA should be upheld on the basis that there was a long history of
regulating broadcast media. Even more
justifying of the decision of the court is the insistence that the CDA had to
be subject to the First Amendment strict scrutiny test. The rights that the
legislation sought to prohibit is so important to the American constitutional
system and any analysis below the strict scrutiny adopted by the Supreme Court
would not have sufficed.
A
closer reading of the court’s opinion reveals that it was only banning
obscenity and not adult pornography. The ban on obscenity is informed by recognition
that there is a compelling interest for the government to protect the physical
as well as the psychological wellbeing of minors. Thus, a ban on obscenity is
way of preventing those minors from accessing the material. The court was
relying on its decision in FCC v Pacifica to justify this position. The
same decision invalidated a ban on indecent messages among which one can find
adult pornography. The court even went further to find a justification for their
differential treatment of obscenity and adult pornography on the First
Amendment. To this end, it noted that the former does not receive the
protection of the First Amendment while the latter does. The specific paragraph
where the court analyzed this issue begins by signaling that it is evaluating free
speech rights. One can safely assume that adult pornography clearly falls
within that category. Being merely offensive, the First Amendment still allows
adults to use adult pornography. The court’s attitude towards a differential
treatment of the two kinds of speech is also evident in its discussion of Ginsberg case where the government was
said to have an interest in protecting children from harmful material. The
court in Ginsberg did not see that interest as extending to materials addressed
to adults given that there is a difference in what would be fit for either of
the two.
Both
the opinion of the Supreme Court and its narration of the decisions of the
lower courts point to the fact that indecency as a term was such an important
issue in the case. The question arises as to whether there was any need for the
term to be an issue at all. The answer to such a question is obviously in the affirmative.
For one, the statute that was the subject of the case was itself titled to
relate to the term. By identifying as the Communications
Decency Act (CDA), it would only be natural that decency as a term is
likely to become an issue in any case arising from the statute. In fact, one of
the challenged provisions in the case was informally referred to as the indecency
provision further justifying the focus on the term. Indecency also became an
issue for because there was a possibility that the case would turn either way
depending on how the term was defined. The Supreme Court noted this by
emphasizing the First Amendment requirement that content based regulations as
well as criminal statutes should be clear. The court had to grapple with the
issue of defining the term to the extent that it noted that the statute did not
provide a definition. Instead, it saw the approach taken by the statute in
defining indecency as capable of provoking uncertainty. It was, however, Judge
Buckwalter who was the first to raise express the opinion that it would be
difficult to enforce the statute as a criminal law given vagueness of the
important terms such as indecency.
Although
Reno is arguably one of the first legal and ethical dilemmas to reach the
courts in the U.S, it is incorrect to say that no other ethical dilemma
regarding the internet has arisen since then. One area in which many of these
dilemmas occur regards the challenges that internet poses to the privacy of individuals
(Garlinger, 2009). The World Wide Web
makes it possible to monitor the internet activities of individuals without out
them ever knowing about it. These tools for monitoring have become very popular
with organizations because they can now target their offerings based on the
information gathered without the consent of the concerned individuals. Cookies,
web bugs and spyware are just some of the surveillance tools that organizations
use in the internet. The internet has also created ethical dilemmas in the area
of intellectual property. The ease with which the medium of communication
allows for the free distribution of information means that it does not
discriminate between copyrighted and other information. For instance, the recording industry has been
complaining about the illegal copying of their music over the internet. It is
also incorrect to say that the Supreme Court has not acted on some of the
ethical dilemmas since 1997. In A & M
Records v Napster Inc., the Court
of Appeals for the Ninth Circuit held that Napster had contributed in
infringing copyrights. People await the verdict of courts because they tend to
clarify the position of the law.
Were
John Stuart Mill to have been the one deciding on the Reno case, he would
probably have come to the same decision as the Supreme Court. This conclusion
stems from the fact that Mill was one the initial proponents of utilitarianism
as a way of looking at ethical issues (Jacobson, 2008). Mill’s decision criterion
involves a series of steps. Echoing throughout those steps is the assumption
that ethical decisions are made by rational human beings. It is from this
theory that Mill identifies the first step as entailing the identification of
an ethical goal. For him, that goal should be the maximization of the goal that
is best to pursue (Jacobson, 2008). That goal is happiness. Thus, one can say
that Congress was moved by the need to pursue happiness when it set out to
enact the Telecommunications Act. The type of happiness that Mill cares about
is the aggregate happiness of all individuals. It is obtained by adding the
happiness of each individual. It does not matter whether so individuals are
unhappy so long as America as a country is. Since most individuals in America
will be happy in a situation where all laws governing their lives are clear,
they would be happy striking down the Communications Decency Act which is
overly vague in many of its definitions.
Much
as Mill’s resolution of the issue may look plausible, it scarcely appeals to me
as a decision criterion. For one, adopting Mill’s ideas in the practical world
would be next to impossible. The kind of hypothetical calculations that the
theory demands would really delay any decision as agents have to be sure of the
possible consequences of all alternative courses of action. As applied to Reno,
it means that the Supreme Court must have considered the both the consequences
of upholding the statute on the one hand and striking it down on the other. It
is after such a calculation that the court was to proceed ensuring to pick only
the alternative that maximizes the greatest good. The truth is that the Supreme
Court never engaged in that kind of analysis and it is doubtful whether there
is any court with the capability to carry the analysis to its logical
conclusion. In addition, the kind of moral heroism that Mill advocates is not
tenable in a country founded on individual liberty like America. The government
does not have the right to decide the best way to rear children for American parents
who are adults with their individual notions of how to do that task.
As
the discussion comes to an end, it would be necessary to reflect on Reno as it
relates to a number of issues. Regarding the mass media, the evolutionary
nature of its various forms is the most visible aspect from the case. One of
the government’s arguments to uphold the statute was that the internet was not
very different from other forms of mass media whose regulations have remained
valid over the years. In response, the court embarked on a brief recitation of
some of the cases where statutes restricting First Amendment rights on earlier
forms of mass media have been upheld. It came out from that recitation that
starting from the print media, radio and television broadcasts, telephone
communications and now the internet, the level of First Amendment protection
for each depend on the peculiar characteristics of the given medium. Aside from
the legal aspects, the case also reveals that media ethics should always
develop faster than the law. The court took time to explain the other
technological ways in which children can be protected from harmful content in
the internet. It only teaches that ethics should never wait for the law to
catch up with technology. Reno remains important both for historical purposes
and because no law has since taken the place of the one it struck down.
References
Garlinger,P.P. (2009).Privacy,
Free Speech and the Patriot Act: First and Fourth Amendment Limits on National Security Letters. New York University Law Review, 84,
1105-1148.
Jacobson, D. (2008).Utilitarianism
Without Consequentialism: The Case of John Stuart Mill. Philosophical Review,
117(2), 159-191.
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