Mass Media Ethics

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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