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Writing for the Court, Justice Stevens determined that Sections 223 (a) (1) and 223 (d) were unconstitutionally overbroad under the First Amendment.
"The breadth of the CDA's coverage is unprecedented," Stevens wrote. "...The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value...[such as] discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library." Reno v. ACLU, 1997 U.S. Lexis 4037 (June 26, 1997).
While this decision has been hailed in most quarters as an eminently sound and reasonable adjudication of these issues, an analysis of recent developments in this regard leads to the conclusion that the Internet regulation battle is only just beginning.
For example, state legislatures have entered the fray, seeking to regulate the online world at a local level. Two of these statutory schemes have been challenged in federal court, and recent decisions have shed light on some of the debates that may continue to arise in this context.
In New York, a highly publicized state statute that closely resembled the CDA (N.Y. Penal Law Section 235.21 (3)) was challenged by a coalition of library groups, publishers, and Internet companies. Plaintiffs argued that the law violated both the First Amendment and the Commerce Clause. American Library Association v. Pataki, 1997 U.S. Dist. Lexis 8793 (S.D.N.Y. 1997).
Without reaching the First Amendment issue, the court on June 20th found the New York statute violative of the Commerce Clause. "New York has overreached," Judge Loretta A. Preska wrote, "by enacting a law that seeks to regulate conduct occurring outside its borders."
In an important exploration of state jurisdiction in this regard, the court explained that "typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet. The menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution, because that clause represented the framers' reaction to overreaching by the individual states that might jeopardize the growth of the nation -- and in particular, the national infrastructure of communications and trade -- as a whole."
Judge Preska concluded that while "[t]he protection of children from pedophilia is an entirely valid and laudable goal," the Act's attempts to effectuate that goal "results in the extraterritorial application of New York law to transactions involving citizens of other states and is therefore per se violative of the Commerce Clause." And she ended the opinion with a declaration that may prove to be very important over time: "[T]he unique nature of cyberspace necessitates uniform national treatment and bars the states from enacting inconsistent regulatory schemes."
In Georgia, a coalition led by the ACLU had challenged a statute that criminalized "the transmission of data through a computer network" (a) "if such data uses any individual name...to falsely identify the person," or (b) "if such data uses any...trade name, registered trademark, logo, legal or official seal, or copyrighted symbol...which would falsely state or imply that such person...has permission or is legally authorized to use [it]..." O.C.G.A. Section 16-9-93.1.
At trial, the parties vigorously disputed the scope of the act. Defendants argued that "the act prohibits only fraudulent transmissions or the appropriation of the identity of another person or entity for some improper purpose."
Plaintiffs, however, argued persuasively that the act had "tremendous implications for Internet users, many of whom 'falsely identify' themselves on a regular basis for the purpose of communicating about sensitive topics..." They also contended that "the trade name and logo restriction frustrates one of the Internet's unique features--the 'links' that connect web pagesÉand enable users to browse easily from topic to topic..."
On June 23rd, the court ruled that the plaintiffs "are likely to prove that the statute imposes content-based restrictions which are not narrowly tailored to achieve the state's compelling interest. Furthermore, plaintiffs are likely to show that the statute is overbroad and void for vagueness." ACLU v. Miller, No. 1:96-cv-2475-MHS (N.D. Georgia 1997).
These recent lower court decisions, taken together with the U.S. Supreme Court's ruling in the CDA case, might certainly be viewed as the beginning of a cautionary guidebook for those who would attempt to regulate the online world. However, it is still much too early to come to any definite conclusions in this regard, particularly in light of the interrelationship between free speech and intellectual property law.
While there has been a groundswell of support for maintaining a free and unfettered exchange of information and ideas in cyberspace, there has arguably been a similar movement to restrict the same information flow under copyright and trademark law. At some point, these two endeavors are going to collide, and the collision may very well take place on the college campus.
Today, students who enter colleges and universities worldwide are invariably technologically savvy. Most have grown up with computers, and see the online world as a natural component of their lives. Thus the same sort of "mischief" that has characterized campus life in past decades is now occurring with increasing frequency on college and university servers.
In growing numbers, aggrieved parties and other concerned individuals are looking to the institutions of higher education to regulate student conduct online and to monitor student behavior in cyberspace. Yet the colleges and universities are understandably hesitant to even attempt to police their students in this manner.
A recent incident at the University of Puget Sound exemplifies this growing dilemma. In the Spring of 1997, an employee of Emigre, Inc. discovered illegal copies of more than 100 software programs posted on the web page of a freshman at Puget Sound. Several of the programs had been created by Emigre itself.
Clearly this was not the first time that this scenario had occurred. Emigre therefore did what is usually does in these situations: it notified the Software Publishing Association, which in turn notified the university. In response, Puget Sound officials shut down the site.
However, according to the Chronicle of Higher Education, the Software Publishing Association decided to make an example of the student. They "negotiated an agreement under which he must write a 20-page paper about computer piracy and copyright infringementÉand must perform 50 hours of community service, helping to wire local schools for Internet access." If the student fails to perform these tasks, he must pay a $10,000 fine, and the association can then sue him for copyright infringement." See Karla Haworth, Publishers Press Colleges to Stop Piracy by Students, Chronicle of Higher Education, July 11, 1997.
While no institution of higher education would defend a student who has posted illegal copies on their server, many college and university officials feel that it is not their role to regulate student conduct by either monitoring student Internet use or collaborating with software publishers to discipline offenders.
In light of all these recent developments, the battle lines are finally beginning to emerge. And the next few years will be very interesting indeed.
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