With every new form of mass communication from the printing press to the telephone to the Internet comes new rationales for restricting free speech. With the rise of the World Wide Web, Congress lost no time in passing the 1996 Communications Decency Act, which censored the Internet by broadly banning so-called ‘indecent’ speech. The ACLU led a coalition of groups that immediately challenged the law, in a case that became the first major test of the scope of freedom of expression in the new age of digital communication.
As the ACLU argued first in the lower courts and later in the Supreme Court, the terms of the Communications Decency Act (CDA) were impermissibly broad and vague, and would have restricted candid discussions of issues related to health and sexuality because of their reference to various body parts. For instance, one government witness testified before a lower court that a Vanity Fair magazine cover photo of a semi-nude and pregnant Demi Moore, while freely available on newsstands, would be blocked on the Internet under the law.
In a landmark 7-2 ruling that made headlines around the world, the Justices found that the CDA, in the words of Justice John Paul Stevens, placed an ‘unacceptably heavy burden on protected speech,’ that ‘threatens to torch a large segment of the Internet community.’ Subsequent attempts by Congress and various states to restrict free expression online have also been declared unconstitutional.
The drafters of the Bill of Rights could hardly have envisioned the Internet when they wrote the First Amendment, which begins with the stirring and unequivocal words, ‘Congress shall make no law….’ But it was through this document that the framers of the Constitution established that protecting the new communication technology of their day from government control was a bedrock principle of the American system. As the Supreme Court pointed out many years later in the Burstyn film censorship case, ‘the basic principles of freedom of speech and of the press, like the First Amendment’s command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule.’
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