June 26, Jared Schroeder, associate professor of journalism at SMU Dallas and a specialist in Frist Amendment issues and co-author Jeff Kosseff, for an op-ed underscoring the impact 25 years ago when a Supreme Court ruling, Reno vs. ACLU, helped shape the Internet as we now know it. Published in Slate under the heading Happy 25th Anniversary to the Supreme Court Decision That Shaped the Internet We Have Today: https://bit.ly/3bzLiyb
Twenty-five years ago, the Supreme Court told the government to keep its hands off the internet. Today, the internet is vastly different—and far more central to everyday life—than it was on June 26, 1997, but the court’s reasoning in Reno v. ACLU is more important than ever.
At the heart of the case was a massive overhaul of U.S. telecommunications laws that President Bill Clinton signed on Feb. 8, 1996. While much of the law involved local telephone competition, broadcast ownership, and cable television, one section—the Communications Decency Act—tried to prevent minors from accessing obscene and indecent material on the nascent internet.
By Jared Schroeder and Jeff Kosseff
Twenty-five years ago, the Supreme Court told the government to keep its hands off the internet. Today, the internet is vastly different—and far more central to everyday life—than it was on June 26, 1997, but the court’s reasoning in Reno v. ACLU is more important than ever.
At the heart of the case was a massive overhaul of U.S. telecommunications laws that President Bill Clinton signed on Feb. 8, 1996. While much of the law involved local telephone competition, broadcast ownership, and cable television, one section—the Communications Decency Act—tried to prevent minors from accessing obscene and indecent material on the nascent internet.
In recent years, politicians and commentators have focused on Section 230 of the Communications Decency Act, which immunizes websites and other online services for claims arising from third-party content. But in 1996, far more attention was paid to the other part of the CDA, which imposed criminal penalties for the transmission or display of obscene and indecent online content.
The law’s fatal mistake was including indecent content. Although the Supreme Court has long held obscenity is not protected by the First Amendment, indecency generally is. Indecency is not an exact term. Allowing the law to stand would have given the government broad and unclear powers to limit expression, including artistic, educational, and unpopular content. Imagine a platform like TikTok or YouTube functioning in a world where the government had broad power to prosecute content. We would have a completely different, and substantially government-controlled, version of the Internet.
When faced with the first significant case about online expression, justices went in a completely different direction than Congress, using the Reno case to confer the highest level of protections on online expression.
The case started when a broad coalition of civil liberties groups, business interests, and others, including the American Civil Liberties Union, American Library Association, Planned Parenthood Federation of America, and Microsoft, sued. A three-judge panel in Philadelphia struck down much of the law, and the case quickly moved to the Supreme Court.
The federal government tried to justify these restrictions partly by pointing to a 1978 opinion in which the court allowed the FCC to sanction a radio station that broadcast George Carlin’s “seven dirty words.” Justices dismissed these arguments. They saw something different in the internet and rejected attempts to apply weaker First Amendment protections to the internet. Justices reasoned the new medium was fundamentally different from the scarce broadcast spectrum.
Stevens also rejected the government’s argument that regulating online indecency was necessary for the internet to grow. “The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention,” Stevens wrote. “The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.”
It was a romanticized view of the internet. Justices looked into the future and saw a technology that could create the elusive, all-inclusive marketplace of ideas they had imagined for decades. Justices saw a wide-open space, where every citizen could take part in democracy.
None of these changes makes Reno any less relevant. There’s never been a perfect marketplace in the U.S., particularly in the decades before the commercial internet, when a shrinking number of companies accumulated greater control over newspapers and broadcasters. Without the internet, countless people could not have told their stories and voice their opinions over the past quarter century.
We never will have a perfect marketplace of ideas because we deeply disagree about what the marketplace should look like. Some argue that the largest platforms are too heavy-handed in their moderation and suppress far too much speech, while others argue that the platforms have not done enough to remove harmful content. Underlying much of this criticism is the idea that perhaps the government should regulate internet content a bit more, either by limiting platforms’ ability to moderate or pressuring them to block content that would otherwise be constitutionally protected.
But we should not.
The precedent’s relevance isn’t in the case’s dated facts or romanticized predictions. Its enduring value is in the idea the internet should generally be protected from government control. Without the Supreme Court’s lucid and fervent defense of online free speech, regulators, legislators, and judges could have more easily imposed their values on the internet.
The internet has disrupted many aspects of society, and people on all sides of the debate raise legitimate concerns about particular moderation decisions of the most dominant platforms. But having the government step in to determine which ideas are acceptable and which are not would only make matters worse.
As we grapple with how to live with each generation of new technology, from those AOL CDs to the metaverse and advanced machine-learning technology, Reno remains the constant. It sets the boundaries for how we handle the changes. Thanks to Reno and other key First Amendment rulings, the United States cannot follow the path of authoritarian countries that have passed “fake news” laws in recent years and used those new powers to suppress criticism and dissent.
Nor can the government limit the ability of private platforms to remove content that the platforms believe is harmful. In December, a federal judge granted a preliminary injunction blocking a Texas law that restricted social media companies’ ability to moderate content. He pointed to Reno in rejecting Texas’s argument to apply the lower First Amendment protections that broadcasters receive. (The case is on appeal to the 5th Circuit, which temporarily reinstated the law until the Supreme Court vacated the 5th Circuit’s decision, but a full ruling from the 5th Circuit on the merits is still to come).
Even if you trust the regulatory agency or legislators or judges who currently are in power, giving them new authority to regulate online content is terribly short-sighted. Those in power come and go, and the next leaders may have ideas about regulating online speech that you find repulsive or dangerous. But once you erode vital precedent like Reno, it is hard to turn back.
We can list all the problems that people have with the internet, but we must remember two constants. First, the internet is the most powerful communication technology ever created. Second, there’s no going back. Online communication is here to stay.
With those constants in mind, do we want a weak or a strong barrier between this powerful and growing communication tool and the government’s ability to decide the ideas we encounter? We contend a stronger barrier is best.
Jared Schroeder is an associate professor of journalism at Southern Methodist University. Jeff Kosseff is an associate professor at the U.S. Naval Academy’s Cyber Science Department and the author of the forthcoming book The United States of Anonymous: How the First Amendment Shaped Online Speech.
