Sweet Words of Freedom -- an analysis of the CDA decision
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From: Peter Langston <psl>
Date: Mon, 17 Jun 96 13:03:36 -0700
Subject: Sweet Words of Freedom -- an analysis of the CDA decision
Forwarded-by: Keith Bostic <firstname.lastname@example.org>
Forwarded-by: Wendell Craig Baker <email@example.com>
From: firstname.lastname@example.org (--Todd Lappin-->)
Subject: ANALYSIS: "Sweet Words of Freedom"
THE CDA DISASTER NETWORK
June 14, 1996
I send apologies for my silence amid all the CDA euphoria, but I've been a
busy boy of late, with lots of articles to write, and so on.
I spent most of the day on Wednesday digesting the 200 pages of the
Philadelphia decision, and yesterday, I wrote an analysis of the ruling for
HotWired. I'm passing it along here for your reading pleasure.
(HotWired has prepared a Special Report on the CDA decision, including Louis
Rossetto's "Victory!" editorial, Declan McCullagh's preview of "What's
next," and a section of shrill reaction comments from free speech opponents.
You can check it all out at http://www.hotwired.com/)
If you have ANY further questions or comments about the Philadelphia
decision, PLEASE pass them along to me via email. I'll compile your
questions in hopes of answering them for all to see in the days ahead.
These are happy days...
Hope you're enjoying them.
Work the network!
Sweet Words of Freedom --
The CDA Decision: A prose poem in praise of free speech on the Net.
CDA Special - HotWired
by Todd Lappin
In the end, the CDA decision wasn't just a victory for free speech - it was
also a crushing rout of the self-righteous moralists who have argued that
the First Amendment doesn't extend into cyberspace.
When the trial began in March, Judges Dolores Sloviter, Ronald Buckwalter,
and Stewart Dalzell were online newbies. But by the time they handed down
their unanimous decision on 12 June, the judges showed that they had figured
out what the Internet is all about, and why it deserves the broadest free
speech protection possible.
Almost a third of the nearly 200-page decision - roughly 300 kilobytes in
electronic form - is devoted to "findings of fact," the basic facts of the
case as affirmed by the judges. Many of these findings seem mundane to
seasoned netizens, but bear in mind that when this case moves to the Supreme
Court, the justices will adopt the findings of fact from the Philadelphia
ruling in their entirety. Thus, while the Supremes may differ in their
interpretation of the facts, they won't dispute the facts themselves.
In this respect, we made out pretty damn well. The findings of fact paint
an accurate picture of what the Net is, how it works, and why it's both
impractical and unnecessary for the government to regulate what Internet
users say to one another.
"Unlike traditional media, the barriers to entry as a speaker on the
Internet do not differ significantly from the barriers to entry as a
listener," the judges wrote. "In the argot of the medium, the speaker can
and does become the content provider, and vice-versa. The Internet is
therefore a unique and wholly new medium of worldwide human communication."
>From those sweet words, the judges go on to establish more crucial facts in
Rejecting the cyberporn scare-mongering of the traditional media, the court
determined that "there is no evidence that sexually oriented material is
the primary type of content on this new medium."
Defying the government's argument that the Internet should be regulated like
a broadcast medium, the court found that "communications over the Internet
do not 'invade' an individual's home or appear on one's computer screen
unbidden. Users seldom encounter content 'by accident.'"
The judges recognized that "perhaps 40 percent or more of content on the
Internet originates outside the United States," and thus is not subject to
American jurisdiction. And finally, in a refreshing acknowledgement of the
damage that would be caused by the CDA's stifling of free speech on the
Internet, the court determined, as a matter of fact, that "many speakers
who display arguably indecent content on the Internet must choose between
silence and the risk of prosecution. The CDA's defenses - credit card
verification, adult access codes, and adult personal identification numbers
- are effectively unavailable for noncommercial, not-for-profit entities."
In subsequent portions of the decision, each judge was given the opportunity
to present an individual analysis of why the CDA doesn't pass constitutional
Chief Judge Sloviter argued that the CDA's use of the terms "indecent" and
"patently offensive" are "inherently vague, particularly in light of the
Government's inability to identify the relevant community by whose standards
the material will be judged." Taking a withering swipe at the "ban it all,
then let the judges and prosecutors sort it out" attitude of politicians on
Capitol Hill, Sloviter adds:
"Whether Congress's decision [in adopting the language of the CDA] was a
wise one is not at issue here. It was unquestionably a decision that placed
the CDA in serious conflict with our most cherished protection - the right
to choose the material to which we would have access.... "
Judge Buckwalter, who issued an initial temporary restraining order against
enforcement of the CDA back in February, stated: "The CDA attempts to
regulate protected speech through criminal sanctions, thus implicating not
only the First but also the Fifth Amendment of our Constitution." He then
added, "The concept of due process is every bit as important to our form of
government as is free speech...."
Finally, there was Judge Stewart Dalzell, who displayed an admirable ability
to grok how the Internet functions as a tool for promoting the democratic
exchange of ideas. Say what you want about lawyers and their tendency to
speak in arcane doubletalk, Dalzell's analysis is a model of plain-spoken
praise of free speech on the Net:
"It is no exaggeration to conclude that the Internet has achieved, and
continues to achieve, the most participatory marketplace of mass speech that
this country - and indeed the world - has yet seen. The plaintiffs in these
actions correctly describe the 'democratizing' effects of Internet
communication: individual citizens of limited means can speak to a worldwide
audience on issues of concern to them.... The Government ... implicitly asks
this court to limit both the amount of speech on the Internet and the
availability of that speech. This argument is profoundly repugnant to First
Dalzell concluded that "the Internet deserves the broadest possible
protection from government-imposed, content-based regulation" because, as
he puts it (paraphrasing a famous line of Justice Felix Frankfurter's), "Any
content-based regulation of the Internet, no matter how benign the purpose,
could burn the global village to roast the pig."
Judges Sloviter, Buckwalter, and Dalzell didn't conclude that the CDA is
"flawed." They didn't conclude that it can be fixed through minor reworking
of the statute's language. Instead, they concluded that its prohibitions on
free speech are unconstitutional "on their face." And in the words of the
court, "no party has any interest in the enforcement of an unconstitutional
The judges in Philly figured out what the Internet is, how it works,
and what makes it unique. Their decision has been handed down, and the
word is out:
Fuck off, Uncle Sam. Cyberspace is where democracy lives.
Copyright (c) 1996 HotWired, Inc. All rights reserved.
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© 1996 Peter Langston