Fred H. Cate [NOTE 1]
[Cite as Fred H. Cate, "Indecency, Ignorance, and Intolerance: The First
Amendment and the Regulation of Electronic Expression," 1995 J. Online L. art. 5,
par. ___]
{par. 1} The Internet has been attacked as far too congenial to offensive material,
especially sexually explicit text and images. Professor Cate discusses three recent
attacks: Senator Exon's Communications Decency Act, the criminal prosecution of University
of Michigan student Jake Baker for the posting of violent sexual fantasies, and Carnegie
Mellon University's banning of sexually explicit newsgroups. These regulatory measures
create complex problems: questions of where the line should be drawn between protected and
unprotected speech, restrictions which are motivated by political self-interest and other
improper purposes, and the tendency of measures controlling expression to lead to the
making of bad laws. The fundamental principles underlying the First Amendment--the
importance of free expression and the beneficial impact of free exchange of information in
the marketplace of ideas--will themselves act to restrain the publication of truly
offensive materials. Beyond these natural social controls, the Constitution mandates that
free expression be allowed on the Internet as it is through any other medium.
{par. 2} "Cyberporn!," screamed the July 3rd Time magazine headline, [NOTE 2] part of the avalanche of media reports, press releases, studies, legislation, and judicial prosecutions lamenting the state of free speech on the Internet and other computer networks. The Time story was based on a then-forthcoming article in the Georgetown Law Journal written by an engineering undergraduate at Carnegie Mellon University. [NOTE 3]
{par. 3} The law journal article claims that 83.5 percent of pictures on Usenet newsgroups are sexually explicit. Time and other publications, politicians, and conservative religious and political groups trumpeted that statistic. They ignored the study's other finding that sexually explicit expression accounts for only 3 percent of all newsgroup messages, and newsgroup messages account for only 11.5 percent of all Internet traffic, so sexually explicit material makes up only one-third of 1 percent of Internet traffic--a lower percentage than is found in most newsstands and video stores.
{par. 4} Two weeks before the Time cover story, the Senate passed the Communications Decency Act, 84-16. [NOTE 4] The Act would criminalize the transmission of obscenity, which current law already prohibits. But it would go further to criminalize the transmission of "indecency" if the indecent expression could be accessed by a minor, as can most Internet traffic today. The Act applies to anyone who "makes or makes available" the transmission, whether or not she initiated the communication.
{par. 5} Presumably, the Act's sponsor, Senator James Exon, Democrat from Nebraska, would like to see more people like University of Michigan undergraduate Jake Baker in jail. In February, the FBI arrested Baker for sending e-mail messages and posting a signed sexual fantasy to an Internet newsgroup. [NOTE 5] The government charged that Baker's expression constituted a threat against a fellow student named in the story. The previous November, officials at Carnegie Mellon University banned some newsgroups containing sexually explicit text or images. The University claimed that Pennsylvania law mandated its action. [NOTE 6]
{par.6} These actions are not the simple extension of obscenity law into cyberspace. They do not reflect the response of legislators, prosecutors, and administrators to the depiction of children in, or the solicitation of children for, sexual acts. Like the transmission of obscenity, child pornography is already against the law, no matter what the medium. [NOTE 7] These and similar actions are fundamentally troubling because they stymie meaningful discussion by conflating obscene expression and pedophilic images, which are not constitutionally protected, with other sexually explicit expression, which is. They fail to take into account the power and capabilities of the technologies at issue. And they would--and often appear intended to--prohibit adult access to non-obscene expression that is constitutionally protected by the First Amendment.
{par. 7} As the press and the politicians work themselves into a frenzy, the First Amendment has been swept aside or reinterpreted to pose little impediment to the regulation of electronic pornography. One of the most common avenues for avoiding the First Amendment is to characterize the Internet as a medium like broadcasting or telephony, to which a lower standard of First Amendment scrutiny applies.
{par. 8} What the expanding army of cybercensors ignore is that the First Amendment's protection applies to all expression, regardless of the technology that conveys the expression. It is true that the Supreme Court has identified unique features of some electronic technologies--particularly broadcasting and telephony--that it believes justify lower First Amendment scrutiny. [NOTE 8] But the Court's conclusion that technological differences justify different applications of the First Amendment is under attack. And that conclusion is irrelevant to digital information networks in any event, because those networks do not exhibit the technological differences thought to justify different treatment. As a result, the barrier erected by the First Amendment to laws and regulations restricting expression applies with full force to the Internet and other digital technologies.
{par. 9} This Article examines the application of the First Amendment to efforts to regulate expression on digital information networks. The article focuses on sexually explicit expression because that is where virtually all of today's regulatory efforts are focused. Part I addresses the government's response to the vital role that digital information plays in modern society. Part II examines efforts to regulate expression on existing networks, such as the Internet. Part III considers the value of prohibiting regulation of sexually explicit expression on the Internet.
{par. 10} The Article concludes that, while the impetus to regulate is understandable, the First Amendment restrains even commendable regulation--when that regulation abridges the freedom of speech. Although the prohibition is not absolute, it reflects the Framers' conviction that expression is too important to the human spirit and too essential to a representative democracy to permit its regulation except in the most limited circumstances. The lines separating "good" expression from "bad" are inherently vague, contextual, and subjective, and the power to censor is rarely exercised only once or for wholly altruistic reasons. Prohibiting restrictions on speech evinces a well-tested judgment that suppressing disagreeable expression often causes more harm than the expression itself. Therefore, the First Amendment exists precisely to stay even the well-meaning regulatory hand.
{par.11} Information is a key component of both the national and the global economy. Although figures vary, information services and products are either the first or second largest sector of the U.S. economy, accounting for between 10 and 12 percent of the Gross Domestic Product. [NOTE 9] According to the National Telecommunications and Information Administration, the creation, manipulation, and transmission of digital information constitute the world's largest economic sector. [NOTE 10] The International Telecommunication Union predicts that by the turn of the century the sector will account for $3.5 trillion in revenue. [NOTE 11]
{par. 12} Yet even these figures do not represent the real importance of information. "Information," writes Anne Branscomb, author of Who Owns Information?, "is the lifeblood that sustains political, social, and business decisions." [NOTE 12] Non-communications businesses rely as much on information services and products as do telephone companies and computer manufacturers. During the 1980s, for example, United States businesses alone invested $1 trillion in information technology. [NOTE 13] The significance of information was forcefully recognized in the Clinton administration's Information Infrastructure Agenda for Action, which concluded that: "[i]nformation is one of the nation's most critical economic resources. ... In an era of global markets and global competition, the technologies to create, manipulate, manage and use information are of strategic importance for the United States." [NOTE 14]
{par. 13} Digital information networks are one of the most important and ubiquitous components of this information revolution. Whether joining the computers in a single office, or linking vast numbers of other networks around the globe, these networks are rapidly growing to dominate business, government, education, and even recreation in the United States and throughout the world. The Internet today connects more than 45,000 separate networks and 25 to 30 million users in more than 154 countries, and is growing at the rate of 750,000 new users per month. [NOTE 15] The number of Internet business service providers--the bellwether of future growth and expansion--has ballooned from less than 100 in 1990 to almost 20,000 as of August 1994. [NOTE 16] CompuServe, Prodigy, and America Online, the three largest U.S. information network providers, have over 5.4 million subscribers. [NOTE 17] CNN reports that more than half of all U.S. employers use e-mail to communicate with their employees. [NOTE 18]
{par. 14} Recognizing the vital role of information, the Clinton administration has focused considerable attention and effort on the concept of a "national information infrastructure" (NII) to electronically "link every home, business, lab, classroom and library by the year 2015." [NOTE 19] In its Agenda for Action, the administration identified the "principles and goals" that are to guide the government's "essential role" in deploying the NII. [NOTE 20] To help fulfill that role, the President created the Information Infrastructure Task Force on September 15, 1994, chaired by Secretary of Commerce Ron Brown. The Task Force is charged with articulating and implementing the administration's vision for the NII. "Working together with the private sector, the participating agencies will develop comprehensive technology, telecommunications, and information policies and promote applications that best meet the needs of both the agencies and the country." [NOTE 21] The Task Force is divided into three committees: the Telecommunications Policy Committee, the Information Policy Committee, and the Applications and Technology Committee. These committees are subdivided into working groups and, in some cases, even sub-working groups, reflecting the breadth of issues the Task Force is addressing.
{par. 15} One of the great surprises of the administration's information policy-making efforts, given the range of issues addressed in the Agenda for Action and the variety of committees, working groups, and sub-working groups, is the absence of any reference to First Amendment issues. Neither the Agenda for Action nor any of the administration's other NII pronouncements mentions the First Amendment. Nor does the First Amendment appear in speeches by Vice President Gore, Secretary Brown, or other senior administration officials.
{par. 16} This omission of the First Amendment from information policy is even more significant in light of the substantial regulatory role that the administration anticipates that the government should play in implementing that policy. On December 21, 1993, Vice President Gore delivered the administration's first major policy address on the NII at the National Press Club in Washington. In his speech, the Vice President, the intellectual and political force behind the administration's NII initiative, analogized the current information marketplace to the environment that, in his view, permitted the sinking of the Titanic.
{par. 17} The Vice President argued that the Titanic's radio operators did not receive the warnings about icebergs in the vicinity, and so few ships responded to the Titanic's distress signals, because "the wireless business then was just that, a business. Operators had no obligation to remain on duty. They were to do what was profitable. When the day's work was done--often the lucrative transmissions from wealthy passengers--operators shut off their sets and went to sleep ... ." [NOTE 22] Just as that tragedy "resulted in the first efforts to regulate the airwaves," the Vice President urged, so do the many issues posed by the NII require the government to "get involved" to protect "public needs that outweigh private interests." [NOTE 23] The First Amendment was not mentioned.
{par. 18} The Vice President's vision of the proper role of the government's information policy, judging from the Titanic example, is to regulate the NII by restraining those "private interests" that unspecified "public needs" outweigh. Such restraints, however, pose constitutional issues when the private interests involved are engaged in providing information services and products. The complete absence of the First Amendment from the policy making debate exacerbates these issues because it suggests that the government has ignored, rather than identified and resolved, them.
{par. 19} The omission of the First Amendment from the debate about digital information networks has facilitated efforts to regulate expression carried by those networks. Most of these efforts have targeted sexually explicit expression. Although there are many instances, three recent and important examples are discussed below.
{par. 20} On February 1, 1995, Senator James Exon, Democrat from Nebraska, introduced legislation to, among other purposes, prohibit obscene and indecent expression on the Internet and other communications networks. [NOTE 24] Senator Exon's Communications Decency Act of 1995, as introduced, would have accomplished this by amending existing federal law, [NOTE 25] which prohibits making obscene, indecent, or otherwise harassing telephone calls, to extend to any transmission by a "telecommunications device." [NOTE 26] The bill would have increased the penalties for violating the section from $50,000 and six months in prison to $100,000 and up to two years in prison. Most significantly, the bill would have extended liability not only to the parties who placed and received the transmission, but to anyone who "transmits, or otherwise makes available" the offending communication. [NOTE 27]
{par. 21} The bill appeared certain to die before reaching the Senate floor. Only five years earlier, the Supreme Court had unanimously struck down the provisions of the Child Protection and Obscenity Enforcement Act of 1988 [NOTE 28] that would have criminalized the transmission of "indecent" speech even among consenting adults, exactly what the Exon bill would do. [NOTE 29] Moreover, as introduced the Exon bill would have extended liability for indecent or obscene communications to telephone companies, commercial Internet access providers, and companies and universities that provided Internet connections to their employees and students.
{par. 22} Subsequent amendments modified these provisions, and Exon and co-sponsor Dan Coats, Republican from Indiana, proposed the Communications Decency Act as an amendment to the popular Telecommunications Competition and Deregulation Act of 1995. [NOTE 30] Still the provision seemed likely to fail, until Senator Exon took to the Senate floor with a large blue binder, labeled "Caution" and filled with sexually explicit images that he asserted had been downloaded from the Internet. "Take a look at this disgusting material, pictures which were copied for free off the Internet only this week," Exon challenged his colleagues. [NOTE 31] Despite claims by the Justice Department that the provision would be "virtually impossible to enforce," [NOTE 32] and by constitutional law scholars that it was unconstitutional--Professor Laurence Tribe called it "a frontal assault on the First Amendment" [NOTE 33] --the Senate passed the amendment and the bill. Time magazine wrote: "At the end of the debate--which was carried live on C-Span--few Senators wanted to cast a nationally televised vote that might later be characterized as pro-pornography." [NOTE 34]
{par. 23} As passed by the Senate, the Communications Decency Act criminalizes:
{par. 24} making or making available "any obscene communication" by means of "any telecommunications device," irrespective of whether "the maker of such communication placed the call or initiated the communication." {par. 25} knowingly permitting any "telecommunications facility" under one's control to be used to make or make available any obscene communication with the intent to do so. {par. 26} making or making available "any indecent communication" by means of "any telecommunications device" to any person under 18 years of age, irrespective of whether "the maker of such communication placed the call or initiated the communication." {par. 27} knowingly permitting any "telecommunications facility" under one's control to be used to make or make available any indecent communication to any person under 18 years of age with the intent to do so. [NOTE 35]
{par. 28} The penalties for committing any of these acts includes a fine of not more than
$100,000 and/or imprisonment for no longer than two years. [NOTE 36]
{par. 29} The Act restricts the sweeping liability of these provisions by providing a series of statutory defenses. Under those defenses:
{par. 30} no one is to be found liable "solely for providing access or connection to or from a facility, system, or network over which that person has no control." {par. 31} "[n]o employer shall be held liable . . . for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency and the employer has knowledge of, authorizes, or ratified the employee's or agent's conduct." {par. 32} no one is to be found liable if she "has taken reasonable, effective and appropriate action in good faith to restrict or prevent the transmission of, or access to a communication specified" in this section, "or complied with procedures as the [Federal Communications] Commission may prescribe." [NOTE 37]
{par. 33} The Act also preempts state and local laws that would penalize activities covered by the Act more harshly than the Act does. [NOTE 38]
{par. 34} The Communications Decency Act faces an uncertain future in the House of Representatives, which amended its telecommunications reform bill 420-4 on August 4, 1995, to prohibit new federal regulation of Internet content. [NOTE 39] Speaker Newt Gingrich has said that the Act "is clearly a violation of free speech and it's a violation of the right of adults to communicate with each other." [NOTE 40] Characterizing the provision as "very badly thought out and not very productive," [NOTE 41] Gingrich said, "I don't agree with it." And even if the Exon amendment makes it through the House, President Clinton has threatened to veto the entire telecommunications reform bill because he believes it does not adequately serve consumer interests. [NOTE 42]
{par. 35} The second example of an effort to control Internet content is the February 9, 1995, arrest and indictment of Jake Baker, a University of Michigan undergraduate, for creating and transmitting a sexually explicit story and electronic mail (e-mail) messages which used the name of a fellow undergraduate. Baker had posted his story, which described abduction, sexual torture, and murder, to an Internet newsgroup, "alt.sex.stories." The story included a warning that "[t]he following story contains lots of sick stuff. You have been warned." [NOTE 43]
{par. 36} The e-mail messages had passed between Baker and Arthur Gonda, a person with an Ontario Internet account, whom authorities never located. The more than 40 messages described plans for abducting, torturing, and killing young girls and women. U.S. Attorney Saul Green charged that transmitting the story and the messages violated 18 U.S.C. 167; 875(c), which criminalizes the "transmi[ssion] in interstate or foreign commerce [of] any communications containing any threat to kidnap any person or any threat to injure the person of another . . . ." [NOTE 44] The statute provides for a fine or imprisonment for "not more than five years," or both. [NOTE 45]
{par. 37} University of Michigan President James Duderstadt had summarily suspended Baker prior to his arrest, on the basis that Baker's continuing presence on campus constituted a threat to the health and safety of the student body. University Public Safety officials met Baker as he walked out of class on February 2nd, took him to his dorm to pack a few possessions, and then escorted him off campus. Duderstadt had been motivated to act not by any campus outcry over Baker's postings--that came after the University made them public--but rather when an alumnus from Moscow called the newsgroup story to his attention.
{par. 38} After being arrested one week later, Baker was denied bail on two separate occasions. One judge, Judge Bernard Friedman, remarked that "I would not want my daughter on the streets of Ann Arbor or Ohio [where Baker's family lived] with a man in the condition I believe he is in now." [NOTE 46] Baker was confined in Milan Federal Prison for one month, until Judge Avern Cohn ordered him released on March 9th on $10,000 bond. A grand jury re-indicted Baker on March 15th. [NOTE 47] The new indictment omitted any charges based on the story, but instead focused on the e-mail correspondence with the unknown Arthur Gonda.
{par. 39} On June 21, 1995, Judge Cohn granted Baker's motion to quash the indictment. [NOTE 48] In his opinion, Judge Cohn held that the e-mail messages did not constitute a "true threat," which he defined as "some language construable as a serious expression of an intent imminently to carry out some injurious act." [NOTE 49] Judge Cohn found that, even when viewed in the light most favorable to the prosecution, "there is no case for a jury because the factual proof is insufficient as a matter of law." [NOTE 50]
{par. 40} John Cohn went on, however, to highlight several concerns about the prosecution. First, he noted that Baker made no effort to communicate the messages to the student named in his story. In fact, the e-mail messages which were the basis for the government's prosecution, "were not available in any publicly accessible part of the Internet, and there is no allegation that they were ever distributed in any format, electronic or hardcopy, to anyone other than Gonda. Nothing in these private messages suggests that they would be further distributed." [NOTE 51] To the extent that the woman named in the story was alarmed, or that public sensibilities were offended, Judge Cohn wrote, "[i]t is only as a result of this prosecution and the ensuing publicity that the content of the messages has been publicly aired." [NOTE 52]
{par. 41} Second, Judge Cohn questioned the government's involvement in the prosecution. "The government's enthusiastic beginning petered out to a salvage effort once it recognized that the communication which so alarmed the University of Michigan officials was only a rather savage and tasteless piece of fiction. Why the government became involved in the matter is not really explained in the record." [NOTE 53] It is surprising that the government initially indicted Baker for allegedly transmitting a threat via a story, signed by the author, giving his correct e-mail address, and posted to a publicly accessible Internet newsgroup that featured only fantasy stories concerning sex. In his posting, on which the original indictment was based, Baker asked for feedback from readers:
{par. 42} Responses to my lasts posts have been good. As long as people give me feedback (positive or negative), I'll post on a regular basis. As always, comments and criticisms welcome. I cannot stress enough that I think if you like my stories, you should write some and post. (Heck, even if you don't). There is a genuine dearth of stories being posted. [NOTE 54]
{par. 43} As deplorable as the story's content was, it did not constitute a specific threat. It is little wonder that Judge Cohn wrote in his opinion that "[t]he case would have been better handled as a disciplinary matter, . . . despite whatever difficulties inhere in such a course." [NOTE 55] At the conclusion of oral argument, and again at the end of his opinion, Judge Cohn indicated: "[T]he Court is very skeptical, and about the best thing the government's got going for it at this moment is the sincerity of purpose exhibited by [the Assistant United States Attorneys prosecuting the case]. I am not sure that sincerity of purpose is either synonymous with a good case under the law, or even the exercise of good judgment." [NOTE 56]]
{par. 44} Third, Judge Cohn found Baker's imprisonment for 29 days "disturbing," especially because a series of psychiatric evaluations had all concluded that there was "no evidence that [Baker] is a danger to others or himself." [NOTE 57] "Why Baker was arrested and taken into custody on February 9, 1995," Judge Cohn concluded, "is inexplicable. The government indicated in its supplemental brief that Baker's arrest was justified as preventing 'Jake Baker and other like-minded individuals from acting on their violent impulses and desires.' In light of the information available at the time of Baker's arrest, this justification seems farfetched." [NOTE 58]
{par. 45} Finally, Judge Cohn stressed the importance of the First Amendment when evaluating expression on the Internet:
{par. 46} Baker is being prosecuted under 18 U.S.C. 167; 875(c) for his use of words, implicating fundamental First Amendment concerns. Baker's words were transmitted by means of the Internet, a relatively new communications medium that is itself currently the subject of much media attention. The Internet makes it possible with unprecedented ease to achieve world-wide distribution of material, like Baker's story, posted to its public areas. . . . While new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in this instance qualitatively change the analysis under the statute or under the First Amendment. [NOTE 59]
{par. 47} The third example involves the actions of a private university, rather than of a government entity. The First Amendment, therefore, would not, in the absence of some other indication of state action, restrict the university's actions. In this case, however, because the university claimed to act in response to state obscenity law, the First Amendment is implicated. Moreover, given the traditional commitment of universities to free inquiry and expression, the power of universities particularly over students, and the importance of universities as providers of Internet access, the incident is illustrative of a serious threat to on-line expression.
{par. 48} On November 3, 1994, Carnegie Mellon University's Vice President of Computing Services William Arms circulated a memo notifying "Members of the campus community" that computer bulletin boards "known to be used for the distribution of sexually explicit or obscene material" would be discontinued from the University's computer systems. [NOTE 60] The memo cited "Pennsylvania law" as requiring the action. [NOTE 61] Computing Services subsequently indicated that it would be removing all newsgroups containing either sexually explicit text or images.
{par. 49} The administration's action was prompted not by a threatened lawsuit, but by information on an undergraduate research project by electrical engineering student Martin Rimm. [NOTE 62] Rimm, who was later to publish his controversial study in the Georgetown Law Journal , [NOTE 63] claimed that he had downloaded more than 900,000 sexually explicit images from Internet newsgroups accessible via the University's computer system. (In fact, many of those images came from dial-up computer bulletin board services available through any telephone. [NOTE 64]) Administration officials claimed to fear that because Rimm had informed them that the images were accessible via the University's computer system, the University might be found liable under Pennsylvania's obscenity law if it failed to remove them. So the administration's Academic Council decided to remove sexually explicit newsgroups from Carnegie Mellon's computer system. The newsgroups would still be accessible on Carnegie Mellon computers through other computer servers that carried them, but the Carnegie Mellon server itself would no longer carry them.
{par. 50} University community response was immediate and vocal. Both the Student and Faculty Senates and the Staff Council passed resolutions calling on the University administration to refer any action to a broad-based advisory committee that would consult with legal experts. The administration responded on November 7th by agreeing to remove only those newsgroups containing sexually explicit images, and to form a campus committee to review that decision. The committee's meetings were reportedly strained, with the administration-appointed chair seeking a newsgroup-by-newsgroup review of which newsgroups should be banned, while student and faculty members sought to develop a policy about whether the University should be removing any newsgroups
{par. 51} The committee ultimately adopted a written policy, which provides for removing only those newsgroups, the "stated purpose and content" of which violates the law, or which "consistently violates over a reasonable trial period legal canons regardless of the stated purpose of the newsgroup." [NOTE 65] Under this policy, the committee recommended the reinstatement of four newsgroups containing images, the continued exclusion of seven newsgroups containing images, and no action concerning (i.e., the University would continue to provide) all text-based newsgroups, including those containing sexually explicit material. [NOTE 66] The committee also recommended creation of a permanent Advisory Committee to provide advice to the President and Provost about future Internet content matters.
{par. 52} All these incidents--passage by the Senate of the Communications Decency Act, the Jake Baker prosecution, and Carnegie Mellon's exclusion of sexually explicit newsgroups--have occurred within a very short time frame. There is every reason to expect that controversy will continue to surround free speech on the Internet. This is the new battleground for fundamental First Amendment freedoms. It is therefore essential that policy makers, service providers, and the public grapple with the proper application of the First Amendment to electronic information.
{par. 53} The Supreme Court has interpreted the First Amendment very broadly to forbid the government from restricting expression prior to its utterance or publication or merely because the government disagrees with the sentiment expressed; [NOTE 67] and from making impermissible distinctions by content, [NOTE 68] or compelling speech or access to the expressive capacity of another, [NOTE 69] without demonstrating that the abridgment is narrowly tailored to serve a compelling governmental interest. These First Amendment principles restrict not merely Congress, but all federal and state governmental agencies, [NOTE 70] and may also apply to expression that the Court has determined does not independently warrant protection, [NOTE 71] conduct that involves no speech, [NOTE 72] and activities ancillary to expression. [NOTE 73] {par. 54} When confronted with restrictions on some electronic media--telegraph and telephone communications and over-the-air radio and television broadcasting--the Court has assumed that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." [NOTE 74] While those who would regulate expression on the Internet claim that digital information networks share in one or more of the unique features of earlier technologies that have been found to justify lesser treatment under the First Amendment, I have argued elsewhere that this is not the case. [NOTE 75] In brief, the Internet does not exhibit the scarcity of "spectrum space" that broadcasting is alleged to exhibit; the Internet is not "intrusive" into homes, as again, broadcasting is alleged to be; the Internet does not pose a differential impact on the well-being of children; and finally, the Internet shows none of the attributes of a natural monopoly.
{par. 55} Indeed, none of the technological features identified by the Supreme Court to justify applying less First Amendment scrutiny to radio and television broadcasting and telephony is present in the Internet. There is no reason, then, to deny expression on the Internet and other digital networks the full protection of the First Amendment. On the contrary, the attributes of today's electronic networks--including especially a near-infinite "spectrum" for all who want to communicate and a super-abundance of competition--argue forcefully for the full protection of the First Amendment for digital information.
{par. 56} The conclusion that the Internet does not share any of the features of broadcasting and telephony believed to warrant differential treatment is logically sufficient, given the Court's long-standing practice of applying full First Amendment protection to all other communications media, to justify according expression on the Internet the broad shelter of the First Amendment. That easily could be the end of the argument. It is profitable, however, to consider what positive values undergird the extensive protection of expression on the Internet. Why should the law protect expression that a large majority of the population finds offensive and degrading? I would suggest five reasons: the marketplace of ideas; the importance of expression; the problem of line-drawing; the problem of self-interest and improper motivation; and the problem of bad law making.