{par. 57} The Supreme Court has repeatedly asserted that the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." [NOTE 76] The Court has stressed the importance of not allowing the government to interfere with that interchange: "The freedom of speech and of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." [NOTE 77] Often characterized as a "marketplace of ideas," this central First Amendment tenet requires that "[d]iscussion must be kept open no matter how certainly true an accepted opinion may seem to be; many of the most widely acknowledged truths have turned out to be erroneous." [NOTE 78]
{par. 58} The marketplace of ideas does not require believing that truth will necessarily triumph over falsehood. Rather, the justification stems from the fact that truth is not always easily recognized and may arise out of what was once perceived as falsehood. It is therefore important that all expression--whether viewed as true or false, mainstream or outrageous--be placed before the public and that the public have a meaningful opportunity to receive whatever ideas that expression may convey. [NOTE ]79 If an idea is merely expressed, but not heard or read, it is of little value.
{par. 59} One might reasonably ask what danger there is that ideas might be lost by restricting sexually explicit expression on the Internet. But the marketplace metaphor seems to countenance not only that what is accepted as "truth" will likely change over time, but also the contextuality of what is accepted as taste. Martin Redish has referred, in the context of scientific knowledge, to the "principle of epistemological humility." [NOTE80 ] "This principle posits that whatever the currently prevailing beliefs may be, history teaches us that scientific or moral advances may at some future point make those beliefs appear either silly or monstrous." [NOTE 81] Certainly, history teaches of dramatic change in what is accepted within the social norm. Compare even the most moderate elements of modern society with those of New England under the Puritans or of England during Victorian times. Past practices concerning dress, social etiquette, and the treatment of women generally that appear so "silly or monstrous" today, were once some societies' prevailing beliefs. "Certainty is generally illusion," Justice Holmes wrote, "and repose is not the destiny of man." [NOTE 82]
{par. 60} An essential outgrowth of the marketplace value of free speech is the concept that the government may not restrict expression merely because it disagrees with it. "If there is a bedrock principle underlying the First Amendment," Justice Brennan wrote for the Court in 1989, "it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." [NOTE 83] It is for this reason that the government may prohibit an act, such as murder, but is powerless to restrict expression about that act. As Rodney Smolla has written, "[w]hile the First Amendment is not an absolute, the neutrality principle is. Modern First Amendment cases establish a per se rule making the punishment of speech flatly unconstitutional if the penalty is based on the offensiveness or the undesirability of the viewpoint expressed." [NOTE 84]
{par. 61} As a result, Congress, prosecutors, and courts are forbidden from sanctioning expression merely because it conveys an idea, advocates an action, or reflects a vision of society that they find reprehensible. Instead, expression may be regulated consistent with the marketplace metaphor only because of the tangible harm it causes and, even then, only with the greatest care and restraint. In fact, under the Supreme Court's application of the marketplace principle, the preferred "remedy" for dangerous expression is more, healthier expression. "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the consciences of judges and juries but on the competition of other ideas." [NOTE 85]
{par. 62} The Supreme Court ignored this important principle when it held, in Miller v. California, [NOTE 86] that obscene expression is outside of the First Amendment's protection. The decision flew in the face of the marketplace principle, by focusing not on specific harm or the remedial power of more expression, but rather on the Justices' view of the limits of a decent society. There have been many subsequent efforts to identify the "harm" in obscenity that would justify the Miller holding. There may be serious harm; it is beyond the purpose of this Article to evaluate those claims. But absent proof of specific harm emanating from expression alone, the Court erred in Miller by finding that some expression is simply too shocking to be made available to the public.
{par. 63} Despite that error, however, the narrowness of Miller and the continuing resistance of courts to expand its holding, suggest the importance of the marketplace principle. Under Miller , the government may only restrict expression fitting a narrow test for obscenity. [NOTE 87] Courts have found that few works, particularly if they do not involve images, fit within that definition. Moreover, courts have consistently rejected efforts to weaken the definition, or to expand it to include violent expression. [NOTE 88] And courts have not hesitated to strike down legislative and administrative efforts to extend obscenity-like remedies to sexually explicit expression that does not fit within the Miller definition. [NOTE 89]
{par. 64} Outside of the narrow obscenity context, courts have repeatedly interpreted the First Amendment to prohibit restrictions on expression merely because the government or society is offended by the sentiment expressed. We may justifiably hope that Jake Baker's tales of sexual torture and murder are never recognized as mainstream American fiction, but the First Amendment does and should restrain efforts to keep that from happening by suppressing the expression itself or by denying the public access to that expression. This is true even though the expression is--and it is--shocking or offensive. The marketplace metaphor recognizes that just as manufacturers of products use bold advertising and eye-catching packaging to sell their wares, so too do authors and creators use startling, even threatening words and images to catch the attention of readers and viewers. The Supreme Court has held repeatedly and correctly that the government may not regulate expression because it is attention-getting and even contentious. [NOTE 90] In Terminello v. Chicago, Justice Douglas wrote for the Court:
{par. 65} [A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. It may strike at prejudices and preconceptions and have profound unsettling effects . . . . [NOTE 91]
{par. 66} The marketplace concept is particularly important in the Internet context, because Internet and other digital networks give a voice and the opportunity to access a larger audience to people who would otherwise effectively have neither. The Internet is open, in a way that television and newspapers will never be. It is also egalitarian: the real test of expression and ideas is their own value, not the status or affiliation of their source. As Justice Holmes wrote in Abrams v. United States: "the best test of truth is the power of thought to get itself accepted in the competition of the market." [NOTE 92] Moreover, precisely because the Internet provides opportunities for both private and anonymous communications, it facilitates unpopular, radical, even offensive expression. And the Internet provides a good place for that expression, by offering clear indications of what to expect (if you log into the alt.sex.stories newsgroup, where Jake Baker's story appeared, what do you expect), and easy opportunities to avoid objectionable expression (the delete key). There is no better medium for a marketplace of far-ranging ideas.
{par. 67} Protecting digital expression also recognizes the importance of expression to the individual and the beneficial effects of such expression. Legal theorist Thomas Emerson has written that "suppression of belief, opinion, or other expression is an affront to the dignity of man, a negation of man's essential nature." [NOTE 93] That expression may be offensive to others, but for the government to suppress it intrudes deeply on human identity and "the notion of self-respect that comes from a mature person's full and untrammeled exercise of capacities central to human rationality." [NOTE 94] Law professor David Richards has argued:
{par. 68} Attempts by the state to prohibit certain contents of communication per se are fundamentally incompatible with the moral and constitutional principle of equal liberty. Notwithstanding the detestation of and outrage felt by the majority toward certain contents of communication, the equal liberty principle absolutely forbids the prohibition of such communications on the ground of such detestation and outrage alone. Otherwise, the liberty of expression, instead of the vigorous and potent defense of individual autonomy that it is, would be a pitifully meager permission allowing people to communicate only in ways to which no one has any serious objection. [NOTE 95]
{par. 69} Under this self-fulfillment rationale, the value of free expression is not felt only by the originator of the expression. Society as a whole may benefit, particularly if the opportunity for expression ameliorates the likelihood of acting on antisocial ideas. Moreover, the expression of antisocial ideas provides an opportunity to respond to those ideas with other expression or with non-governmental activity. For example, the publication of Jake Baker's stories reportedly led his former friends and classmates to ostracize him. Suppressing those stories--forcing Baker either to not express them or to express them more privately--would have denied the opportunity for public response, and failed to alert both public authorities and the woman named in one story of any possible danger. Justice Brandeis wrote in Whitney v. California :
{par. 70} [I]t is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy of evil counsels is good ones. [NOTE 96]
{par. 71} By limiting the ability of individuals to convince others of their ideas through spoken or written advocacy, laws curbing free expression may encourage discontent and violence and certainly deny society the opportunity to prevent them. Suppressing expression may give the illusion that the ideas that otherwise would have been expressed, no longer exist, but it does not lead to the eradication of the antisocial deeds advocated.{par. 72} Society also benefits in the long run through better, more fully developed, more socialized members. The "fulfillment" of uninhibited expression, therefore, is shared beyond the expression's originator. Rodney Smolla has written:
{par. 73} The fulfillment that comes from speech is bonded to man's capacity to think, imagine, and create. Conscience and consciousness are the sacred precincts of mind and soul. The linkage of speech to thought, to man's central capacity to reason and wonder, is what places speech above other forms of fulfillment, and beyond the routine jurisdiction of the state. The First Amendment both protects and provokes the expressive spirit. On its surface it is a negative restraint on government. But beneath the surface lies a more vexing voice, one that affirmatively encourages Americans to speak, to take stands, to demand to be heard, to demand to participate. [NOTE 97]]
{par. 74} To deny that fulfillment and that right to participate, even when an individual's contribution is distasteful and disturbing, is something that a democratic society should not countenance.
{par. 75} This does not mean that expression involved in the solicitation of minors for, or the depiction of minors in, sexual acts must be protected. In those situations, the Court has found that the harm to the individual minors involved outweighs society's or any individual's interest in expression. [NOTE 98] The importance of expression does suggest, however, that child pornography should not, at least under current judicial reasoning, be subject to special restraint if it does not involve real minors.
{par. 76} The Internet is unusually well suited to self-expression. Any person with a computer and a telephone line can become an author, an artist, a creator. Digital technologies facilitate creativity in text, graphics, and sound that few people have access to outside of a studio. Moreover, digital technologies are affordable. One would need millions of dollars to operate a television station or newspaper, but only a few dollars a month to broadcast or publish on the Internet, to an audience that far exceeds that of the country's largest television station or newspaper. Yet it provides physical safety, convenience, and the anonymity and privacy that facilitate genuine self-expression, even of antisocial thoughts. It is difficult to imagine a better communications medium for self-expression.
{par. 77} The third value served by broad protection for expression--on the Internet and elsewhere--is avoiding the insoluble issues of how the lines between acceptable and unacceptable expression are to be drawn. In Cohen v. California, [NOTE 99] the Supreme Court wrote:
{par. 78} How is one to distinguish this [phrase "Fuck the Draft" worn on the defendant's jacket] from any other offensive word? Surely the State has no right to clean public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. [NOTE 100]
{par. 79} The problem of rational, consistent line-drawing seems to be a recurring theme in current efforts to regulate expression on the Internet. At Carnegie Mellon University, the central dispute focused on who should make the decisions as to which Internet newsgroups should be carried and according to what standards. The difficulty of resolving that issue highlights the difficulty in all speech regulation: how is the expression subject to regulation to be defined? The FCC and federal courts have struggled for more than a decade with the definition of indecency. The best it has been able to come up with, to date, is "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. . . ." [NOTE 101] Yet Congress did not hesitate in 1988 [NOTE 102] to ban indecent commercial communications by telephone, without attempting to define more clearly what "indecent" means and without regard for the fact that the only existing definition defines the term "as measured by contemporary community standards for the broadcast medium." [NOTE 103]
{par. 80} Defining which expression will be subject to regulation according to taste is deeply problematic and constitutionally troubling. Defining expression to be prohibited according to any bad effects it may cause would seem more rational, but it may be equally difficult to measure confidently the effect of any particular category or genre of expression. Certainly there have been many efforts to measure the impact of obscenity and television violence, but their sheer number and the variety of their conclusions highlight the difficulties of a "scientific" approach.
{par. 81} Proponents of recent efforts to restrict Internet expression have seemed unconcerned about whether the expression they targeted was actually harmful. Administrators at the University of Michigan read Jake Baker's story, did not like it, and so summarily suspended him, even without regard for their own psychological evaluations concluding that he posed no threat to himself or anyone else. The two federal judges who denied Baker bail apparently acted with the same motivation. In the Senate, one glance at the images in Senator Exon's blue book was enough to change Senators' votes. No new evidence of harm was provided--in fact, to the extent the images in book were obscene, federal law already prohibits their transmission; [NOTE 104] the shock value alone sufficed to persuade most Senators.
{par. 82} The difficulties surrounding line-drawing also contribute to the problem of self-censorship. If you don't know for what expression you may be held liable, you are less likely to create or transmit any questionable expression. This tendency to "steer clear" of potentially illegal speech has caused the Supreme Court to protect expression that it believes may not independently warrant protection.
{par. 83} Although the Supreme Court has repeatedly acknowledged that there is "no constitutional value in false statements of fact," [NOTE 105] the Court regularly interprets the First Amendment to protect such statements. The justification for this apparent contradiction is that a rule of strict liability separating "true" expression from "false," or protected from unprotected, would necessarily deter some "true" or protected expression, either because of errors by judges or because of "self-censorship" by publishers in an effort to avoid liability. [NOTE 106] Thus, to avoid penalizing "true" or protected expression, the Court often carves out an area of "breathing space" around expression that it believes warrants protection under the First Amendment. In New York Times Company v. Sullivan, [NOTE 107] Justice Brennan wrote for the Court that the "erroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive' . . . ." [NOTE 108]
{par. 84} Line-drawing is always a problem with any regulation and especially those concerning expression. This should caution against trying to regulate expression and require that, when regulation is undertaken, serious effort is made to define with clarity and precision what is covered by the regulation.
{par. 85} The difficulty of line-drawing suggests the fourth value served by protecting expression on the Internet: restraining the natural, but impermissible, tendency of people with the power to do so, to censor based on self-interest and other constitutionally suspect reasons. Everyone has some expression they would like to prohibit, and once the government begins targeting expression for suppression it is unlikely to stop. This is certainly the regrettable lesson of history. The invention of a commercially viable printing press in the late 15th century brought with it the professional censor. Pope Alexander VI issued a bull in 1501 forbidding printing without a license, and in 1559 the first Index Expurgatorious--the Catholic church's list of banned books--was issued. [NOTE 109] Germany instituted censorship in 1529. [NOTE 110] By the time the mob overran the Bastille in 1789, over 800 authors, printers, and book dealers had been imprisoned there. [NOTE 111]
{par. 86} The human penchant for seeking to silence ideas and speakers with which and with whom we do not agree, or which threaten our quietude, is precisely what the First Amendment restrains. It is all too easy to act from self-interest, or to target expression because it is an effective, and often far less expensive alternative, than addressing the real issues that the expression merely signals.
{par. 87} This tendency seems amply demonstrated in the current efforts to restrain expression on the Internet. Consider, for example, the actions taken by Carnegie Mellon in response to Rimm's disclosure. Carnegie Mellon's stated motivation--to avoid legal liability--was wholly understandable, but the University's subsequent actions suggest that something else was going on. Administration officials claimed to act when they did because an undergraduate informed them that sexually explicit material was available on the University's computer system. According to Erwin Sternberg, Vice Provost for Education and Chair of the committee formed to examine the issue, "Carnegie Mellon no longer could claim ignorance about the material." [NOTE 112]
{par. 88} The suggestion that the administration was previously ignorant is difficult to believe, especially as Carnegie Mellon was one of the nation's first universities to join Arpanet, the precursor to the Internet, and the first to wire its dorms for computer access. [NOTE 113] What is more likely the case, is that the University had avoided the issue--like most universities--as long as possible. Rimm's disclosure prompted action not because he provided the first word of sex on the Internet that reached administrators' ears, but because he was going to publish his so-called study. The University did not fear new legal liability, but unwanted publicity. From that moment on, the administration felt compelled to act, and the urgency of that perceived need contributed to a series of poor policy choices, including acting precipitously and without consulting either the University communities affected or legal experts.
{par. 89} Perhaps the clearest indication that avoiding liability was not really at the heart of the administration's action was the decision to screen out only certain sexually explicit newsgroups. Other sexually explicit newsgroups--in fact, the vast majority--remained. Moreover, even the discontinued newsgroups are still available via the University's computer system through other servers. If the motivation of the action was to remove material that might be found obscene under Pennsylvania law, then removing only a portion of it seems unlikely to achieve that result.
{par. 90} Similarly, as Judge Avery Cohn noted, the government's motivation in detaining and prosecuting Jake Baker was suspect. The government launched its case based on a publicly distributed story that was signed and included Baker's e-mail address. When it was clear that any claim that the story constituted the transmission of a specific threat was legally insupportable, the government switched gears to prosecute based on Baker's e-mail, although those messages did not identify any specific individual. Even the University of Michigan, which claimed to be acting to protect the student named in the story and Baker's other classmates, did little credit to itself by suspending Baker without a hearing, ignoring the reports of its own psychologists about Baker's mental stability, and drawing public attention to the story in which the woman was named.
{par. 91} The resuscitation of the Communications Decency Act, too, from certain defeat to overwhelmingly passage, suggests the most blatant political self-interest, with Senators jockeying to see how visibly opposed to pornography they could appear to be on national television. One Senator-Alan Simpson, Republican from Wyoming-acknowledged that the bill might have unconstitutional provisions, but promised: "We'll sort it out." [NOTE 114] It is not clear when Simpson intended to sort out those problems: after the bill went to the House, after the bill went to the President, or after the bill became law. Conservative Republican Senator Orrin Hatch, of Utah, characterized the debate over the bill as "kind of a game, to see who can be the most against pornography and obscenity. It's a political exercise . . . ." [NOTE 115]
{par. 92} This isn't the first time the Senate--and the entire Congress--acted to suppress expression with little regard for the legislation's constitutionality or enforceability. In 1988, the Senate unanimously banned indecent telephone calls, [NOTE 116] only to have the law struck down the following year by an equally unanimous Supreme Court. [NOTE 117] In 1989 the unanimous Senate banned flag-burning [NOTE 118] --three months after the Supreme Court had found that flag-burning was constitutionally protected [NOTE 119] --only to again be reversed by the Supreme Court. [NOTE 120] Recent history simply offers too many examples of law makers and prosecutors acting consistently with their perception of political preferences, rather than with established law, to feel comfortable allowing them to regulate expression according to content without the clearest proof of specific harm. The government should not be permitted to restrict expression by content--both to draw the lines about what expression can be targeted and to enforce penalties for engaging in that type of expression--because it is simply unable to do so with consistency, predictability, and restraint.
{par. 93} Recognizing the barrier imposed by the First Amendment to government regulation of expression on the Internet serves a final value: it helps protect against bad policy and law making. This is particularly true where digital technologies are involved. In this arena, law makers often fail to understand the features of the technologies involved and react with apprehension to the unknown. The Los Angeles Times , in an editorial opposing the Exon bill, noted that:
{par. 94} Many a bad law has grown from lack of understanding. And if the legislative remedies now pending in Congress are any indication, there is a dearth of sophistication about emerging computer technology and its profound implications for society. The naiveté is understandable. . . . [T]he Internet . . . is unfamiliar territory, and this is true for many member of Congress as well. [NOTE 121]
{par. 95} Ithiel de Sola Pool wrote more than a decade ago about the tendency of policy makers to seek to regulate new information technologies: "The democratic impulse to regulate evils, as de Tocqueville warned, is ironically a reason for worry. Lack of technical grasp by policy makers and their propensity to solve problems . . . by accustomed bureaucratic routines are the main reasons for concern. But," as de Sola Pool recognized, "as long as the First Amendment stands, backed by courts which take it seriously, the loss of liberty is not foreordained." [NOTE 122]
{par. 96} At Carnegie Mellon, the University's decision to screen out only certain sexually explicit newsgroups was a half-hearted, poorly targeted effort to control liability and publicity. Such an approach is very common among service providers. And in many ways it is preferable, from a free expression point of view, than trying to remove everything that might lead to liability. But it avoids the central fact that technologically it is impossible to prohibit obscenity (or any other type of expression) on a computer network without both eliminating private e-mail and other private files, and then monitoring all other data--an impossible task given the current volume of Internet traffic. Taking some action may understandably make administrators--whether of a university computer system or a commercial server--feel better than doing nothing, but it takes seriously neither the claim that obscene expression is harmful nor the First Amendment interests in free expression.
{par. 97} Nowhere was this clearer than in the Senate's passage of the Communications Decency Act. It was, in modern Republican parlance, the ultimate unfunded mandate. It is technologically impossible to monitor or control the content of Internet transmissions. The volume is simply too great. Moreover, it is undesirable in a society that values privacy, because it would necessarily require service providers to read the 100 million private e-mail messages that cross the Internet every day.
{par. 98} In addition, as long as children use the Internet, they will always have access to what is there, as they currently do in other communications media, subject only to the control of their parents and teachers. There are technologies that will help parents control their children's access to adult parts of the Internet, [NOTE 123] but these technologies are useless if not employed by adult supervisors of children's access. Moreover, there is regrettably no technology that will protect children from meeting strangers by e-mail or from ever being exposed to adult subjects, just as there are no technologies that will protect children from strangers or exposure to adult subjects as they walk to and from school. Responsibility for children lies where it always has--in the home and in the school--not in Congress or with Internet service providers.
{par. 99} The Senate bill, however, ignores these realities by suggesting that imposing liability for anyone who knowingly, by means of any telecommunications device, makes or makes available any indecent communication to a minor, will cause them to stop. Given the difficulty, if not impossibility, of enforcing such a law, transmission of "indecent" communications, however defined, will probably not diminish. Realistically, there is no way for anyone, other than parents or others who supervise children's access to computers connected to the Internet, to stop the availability of indecent communications to minors. If the threat of liability did curtail "indecent" communications, the effect of the prohibition would be to reduce the adult users of the Internet to viewing "only what is fit for children." [NOTE 124]
{par. 100} The defenses provided in the Act do little to relieve this situation. The principal defenses exclude two categories of actors from liability: providers of access or connection to a facility system or network over which the provider has no control, and persons who take "reasonable, effective, and appropriate" actions to prevent access to obscene communications or indecent communications by minors. [NOTE 125] The second defense ignores the fact that access providers cannot technologically take "effective" action to prevent access to what is on the Internet. Providers can help empower parents to control their children's access, but they cannot meaningfully do it themselves. If all that defense is meant to suggest is that people who make some good faith effort will not be prosecuted, it erodes the Senate's supposed concern with obscenity and indecency on the Internet, and suggests that the Senate was more interested in taking some action than in taking effective action.
{par. 101} The first defense is likely to prove equally meaningless, because it is qualified by subsequent language to be inapplicable to entities "actively involved in the creation, editing or knowing distribution" [NOTE 126] of obscene communications or indecent communications to minors. As discussed above, it is difficult for any university, business, or commercial Internet access provider to claim that they are not "actively involved" in the "knowing distribution" of such communications when they "mount" newsgroups known to regularly contain sexually explicit images and stories. If passed and enforced, therefore, the bill seems certain to reduce Internet content to "only what is fit for children," [NOTE 127] despite the Supreme Court's repeated admonition that this is forbidden by the First Amendment. [NOTE 128]]
{par. 102} The Exon bill would make bad law. It is technologically unworkable and unconstitutional under the First Amendment. The bill ignores the global nature of the Internet, which connects more than 154 countries. [NOTE 129] Obscene or indecent material posted to the Internet outside of the United States is as accessible to U.S. Internet users as material posted on U.S. servers. Moreover, the source of material posted to the Internet can, and regularly is, disguised through the use of anonymous mailers. Jake Baker was the exception in identifying himself as the author of the story he posted to alt.sex.stories. Most such authors write under pseudonyms or with total anonymity.
{par. 103} More importantly, the bill creates an unjustifiable two-tier approach to indecency. Jake Baker's story would be illegal under the bill only because it was distributed by Internet. Baker could have printed his story on paper and distributed copies to children throughout Ann Arbor without incurring any penalty. Indecency in print is legal, but under Exon's approach, indecency on the Internet could cost you two years in jail. As the New York Times wrote in its editorial opposing it, the bill is a "blunderbuss censorship measure." [NOTE 130]
{par. 104} Fortunately, the bill is unlikely to be passed by the House and, even if passed and signed by the President, will almost certainly be struck down by the Supreme Court. The Internet does not share the two characteristics identified by the Court in Pacifica as justifying a lower standard of First Amendment review. [NOTE 131] The Internet is not "uniquely accessible to children, even those too young to read." [NOTE 132] And the Internet does not offer comparatively few choices to an undifferentiated audience of children and adults. [NOTE 133]
{par. 105} Even if the Internet did share those characteristics, however, the Court's prior decisions still prohibit such sweeping indecency regulation. After all, it has taken the FCC almost a decade after the Supreme Court approved the concept of "indecency" to get a narrow indecency provision for broadcast television through the scrutiny of the U.S. Court of Appeals for the District of Columbia. [NOTE 134] The appellate court remanded the Commission's most recent effort--which restricted indecency on broadcast television between the hours of 6:00 a.m. and midnight--with instruction to narrow that window to 6:00 a.m. to 10:00 p.m. [NOTE 135] Senator Exon's much broader prohibition seems unlikely to stand a chance.
{par. 106} The Supreme Court has repeatedly interpreted the First Amendment to provide significant protection to a wide range of communicative and expressive activity. It has done so with good reason, because the First Amendment serves important values, even when applied to protect sexually explicit expression. The First Amendment protects a freewheeling marketplace of ideas. It recognizes the importance of expression to every member of society and, through them, to the society as a whole. It avoids the thorny problem of distinguishing predictably and consistently between permitted and unpermitted expression. It restrains the natural tendency to regulate expression that harms the regulator, or otherwise to serve self-interest rather than principle. And the First Amendment, particularly as applied to digital information networks, impedes the promulgation of unworkable laws and policies by people unfamiliar with rapidly emerging technologies. It reflects a constitutional commitment to freedom of expression and to reaping the benefits of free expression without governmental interference. "[A] cardinal tenet of the First Amendment is that governmental intervention in the marketplace of ideas . . . is not acceptable and should not be tolerated." [NOTE 136]
{par. 107} On July 24, 1995, just three weeks after its "Cyberporn!" cover story, Time magazine published a retraction of sorts. [NOTE 137] Time acknowledged that "severe questions have been raised regarding the . . . methodology," of the Rimm study, on which the Time story was based, as well as "the ethics by which its data were gathered and even its true authorship." [NOTE 138] And Time admitted that the "exclusivity terms" of its arrangement with the Georgetown Law Journal interfered with the integrity of Time's research and kept it from discovering "damaging flaws" in the study. [NOTE 139]
{par. 108} As a result, Time acknowledged that it may have appeared to be "contributing to a mood of popular hysteria, sparked by the Christian Coalition and other radical-right groups, that might lead to a crackdown." It recognized that the magazine had not adequately explored the background of the study's author--Martin Rimm--who, it turns out, had not only provoked the Carnegie Mellon incident, but earlier had caused a scandal at his high school by concocting a survey purporting to show that 64 percent of his classmates gambled illegally. [NOTE 140] Rimm, Time noted, is also the author of a "salacious" novel, An American Playground, and of The Pornographer's Handbook: How to Exploit Women, Dupe Men and Make Lots of Money . This information, Time acknowledged, was "damaging" to Rimm's credibility. [NOTE 141]
{par. 109} What prompted Time to write the second story was the response to its first story--the "flame war" as Time termed it [NOTE 142] --on the Internet. Using the power and scope of the Internet, critics of the Time cover story and of Rimm's study, electronically published detailed, point-by-point rebuttals. [NOTE 143] The New York Times characterized the response as "[h]ell hath no fury like an Internet scorned." [NOTE 144] "Within minutes, literally, of Time's electronic publication of its report on Cyberporn," the New York Times wrote, "people critical of the study were sharing their outrage at the report's methods and conclusions on places like The Well, on Usenet, and by electronic mail." [NOTE 145] As a result of the Internet response, not only did Time recant, but Carnegie Mellon University appointed a committee to investigate whether Rimm was properly supervised; Georgetown University launched an investigation into why the study was accepted for publication; [NOTE 146] and Senator Charles Grassley, Republican from Ohio, who had previously entered the study into the Congressional Record, [NOTE 147] withdrew his invitation for Rimm to testify about pornography on the Internet. [NOTE 148]
{par. 110} The First Amendment worked: corrective expression, not government sanction, remedied inaccurate and inflammatory expression. And the Internet made that corrective expression possible in a way that newspapers, television, and radio never could. Rimm used the Internet to distribute his study electronically, critics exposed its flaws, and Time backed away from its cover story all before the Georgetown Law Journal issue containing the study was even mailed. Ironically, under the Exon bill, Rimm's study would be prohibited on the Internet, because it contained graphic descriptions of sexual acts and was accessible to children. The experience provides practical evidence of Thomas Jefferson's claim, reflected in the First Amendment, that "[w]e have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors . . . ; these are safer corrections than the conscience of the judge." [NOTE 149]
{par. 111} The Communications Decency Act will not be the last effort to regulate sexually explicit, or other categories of, expression on digital networks. [NOTE 150] Jake Baker will not be the last person prosecuted for engaging in expression that most of the public abhors. And Carnegie Mellon will not be the last university to close its doors to expression that offends it or exposes it to possible public outcry. But the First Amendment argues powerfully against such actions and helps secure the remedy when they inevitably occur.
[T]he business of laws is not to provide for the truth of opinions... . For the truth certainly would do well enough if she were once left to shift for herself. ... She is not taught by laws, nor has she any need of force to procure her entrance into the minds of men. ... [I]f truth makes not her way into the understanding by her own light, she will be but weaker for any borrowed force violence can ass to her.