Censorship of the Internet isn’t Wise Policy

By David Hudson

(April 10, 1997) Government officials fear the Internet and the vast unregulated world of cyberspace. Even though the Internet is , in the words of one federal judge, "the most participatory form of mass speech yet developed," officials are afraid it provides too much freedom. For this reason Congress engrafted the notorious Communications Decency Act (CDA) as one section on the behemoth Telecommunications Act of 1996.

Provisions in the CDA criminalize the transmission of indecent material over the Internet that could be viewed by minors. In effect, the CDA bans all indecent material over the Internet.

Justice Oliver Wendell Holmes once said that "a page of history is worth a volume of logic." History shows us that government officials have demonstrated little logic in their treatment of new media. Instead, government officials react harshly to evolving media and censor expression.

First Amendment expert Robert Corn Revere refers to this phenomenon of censoring new modes of communication as the "cycle of repression." A dramatic parallel can be shown between the treatment of the Internet and another popular mode of communication: motion pictures.

Over 80 years ago, the United States Supreme Court ruled that the protections of the First Amendment did not apply to films. In a 1915 decision, Mutual Film Corporation v. Industrial Commission of Ohio, the Court warned that films "may be used for evil" and that "a prurient interest may be excited and appealed to."

The court’s decision justified a highly restrictive Ohio law that allowed officials to censor films in part because of a fear they would negatively influence children. Sound familiar? If not, it should.

The federal government justifies the CDA on a protection-of-minors rationale. In reality, the rationale signifies restrictions on individual liberties for minors and adults.

The Court recognized motion pictures could serve as an important educational tool for the country's youth. However, because the new form of expression could titillate and entertain, it was deemed too dangerous. Sound familiar?

The Internet affords greater access to information than any media yet developed. Even the deputy solicitor general who argued for the constitutionality of the CDA conceded that "the Internet is a revolutionary advance in information technology."

However, some information is declared too harmful for impressionable young minds. Therefore, the government passed the CDA, stifling the new mode of communication rather than face the risk of exposure to prurient material.

Fortunately, the Court reversed its position on movie censorship 37 years later in Burnstyn v. Wilson. In striking down a New York law banning "sacrilegious" motion pictures, the Court concluded that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments."

The Court again had to face the issue of expression impacting minors.

The Court wrote:

"It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression. Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection."

The Court determined that protecting kids did not "authorize substantially unbridled censorship." Hopefully, the Justices of the U.S. Supreme Court will follow the example of their predecessors in 1952 and brand the CDA as an unconstitutional legislative act of "substantially unbridled censorship."

In their book Banned Films: Movies, Censorship & the First Amendment, Edward de Grazia and Roger K. Newman cogently show that "controversy over freedom and censorship has punctuated the history of motion pictures." The Internet has become the primary battleground for freedom and censorship.

Hofstra law professor Eric Freedman predicts that "in time, a consensus will arise that the first reaction to the perceived threat of cyberspace was as overblown as other media." Sometime in July we will find out if professor Freedman's prediction comes to pass in 1997 and the U.S. Supreme Court temporarily breaks the "cycle of repression."

David Hudson is a research lawyer in the First Amendment Center's Legal Department.

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