Handing down its decision June 26 in Reno v. American Civil Liberties Union, the U.S. Supreme Court made a decisive ruling that the Internet deserves the highest level of First Amendment protection. In so deciding, the Court held that the Internet deserves far more protection than the heavily regulated broadcast media with which the government sought to compare it. Justice Stevens, writing for the majority, was joined by a wide spectrum of his brethren, from Clinton appointees Breyer and Ginsburg all the way to Justices Scalia and Thomas. A separate opinion written by Sandra Day O'Connor and joined by Chief Justice Rehnquist concurred as to the unconstitutionality of the main sections of the Act dealing with the display of materials on the Internet, but dissented with regard to a narrow range of circumstances in which an adult transmits indecent materials to a group of minors. Thus, the Court's decision was unanimous that the sections with the most applicability for anonymous fora such as the World Wide Web or newsgroups were unconstitutional.

Still, areas could be seen where the majority opinion stopped short, and some issues were left unaddressed. In its original opinion, the District Court went beyond according the Internet First Amendment protections equal to the full protections of print media. That court held that the Internet's tremendous facilitation of individual speech entitles it to at least as much protection as any other medium and hinted that even higher, unprecedented protection might be appropriate in some future situations. The Supreme Court upheld the grant of full protection, but gave no opinion as to whether the Internet deserves even more. There is "no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium," declared the Court, neither foreclosing nor implying the future possibility of superior protection for the Internet. In a similar manner, the opinion did not decide whether the CDA would be invalid on Fifth Amendment grounds, nor was the question of the Act's extraterritoriality discussed. During oral argument, Justice Scalia questioned plaintiffs' attorney Bruce Ennis extensively about the applicability of the statute to acts outside the country, even suggesting that if declaring the Act was meant for U.S. enforcement outside the country would mean it was constitutional, the Court might make that unusual assumption to save its constitutionality. But the final majority opinion refrained from addressing this issue.

Some alarmist headlines and proclamations by CDA backers have labeled the decision a victory for smut on the Internet, child pornographers, and virtually every unsavory element except things that go bump in the night. Such assertions are misleading. Reno cannot be seen as a victory for obscenity and child pornography because those two categories were illegal before the CDA and remain so under several statutes which the Court has upheld. At a press conference by plaintiffs in American Library Association v. US Department of Justice (the companion to Reno v. ACLU which was consolidated with Reno for the Court's consideration), one reporter asked whether currently ongoing prosecutions (under other federal and state laws) for Internet pornography would have to be thrown out. The response was that in all likelihood not one of those cases would be affected. The vast bulk of such cases involve obscenity or child pornography; none of the plaintiffs in Reno challenged the constitutionality of restrictions on "obscene" speech or child pornography.

Despite the strength of the opinion, there is room for argument about whether future legislative action on the subject would suffer a similar fate. For a dialogue on what latitude is left for regulation of speech on the Internet, see today's Forum opinion items, Ranjit S. Mathoda, Government Power Over Internet Communications: Unborn Heirs of the CDA, 1997 B.C. Intell. Prop. & Tech. F. 070902 and Adam White Scoville, Decisive Reno Opinion Leaves Little Leeway for Internet Speech Regulation, 1997 B.C. Intell. Prop. & Tech. F. 070903. Some have taken the position that a careful reading of the Court's opinions reveals a message to policy-makers, indicating that the CDA's many faults can be alleviated in a more skilfully crafted statute aimed at regulating and encouraging a future version of the Internet. Others have interpreted the decision as an extremely strong statement discouraging any significant content-based regulation of the Internet.

©1997 Adam White Scoville. Published by permission of the copyright holder.