TRB From Washington

On June 11, three judges in Philadelphia struck down parts of the Communications Decency Act. The decision, ACLU v. Reno, is being justly celebrated as the New York Times v. Sullivan of cyberspace, an occasion for dancing in the chat rooms. The three judges understood how the old First Amendment battles are being overtaken by new technologies; and in an endearingly self-dramatizing touch, they had their separate opinions distributed on floppy disks. But for all their sophistication about the technical difficulties of regulating free speech in cyberspace, the judges were forced by the Supreme Court's archaic obscenity doctrine to rely on an implausible premise: that it's possible to distinguish obscenity (which can be banned) from indecency (which must be protected) in an age when cyberspace has made the notion of local community standards increasingly untenable.

The best of the three Reno opinions was written by federal district judge Stewart Dalzell, who concluded that the Internet, like the printing press, should be entitled to the highest level of First Amendment protection. This represents a welcome break with the American judicial tradition of underestimating the social significance of new media. When the telegraph and telephone emerged in the nineteenth century, they were viewed as vehicles of transportation, like the railroads, rather than vehicles of expression, and were regulated without concern for the First Amendment. When radio and television began to flourish, judges allowed Congress to regulate them as public utilities, because of the limited spectrum of available channels. Judge Dalzell concluded that the Internet is entitled to at least as much protection as traditional print media, if not more, because it realizes the goals of the First Amendment even more completely. The new cyberspace technologies are reducing the costs of entry for both speakers and listeners and creating relative equality among them. As a result, Dazell noted, in cyberspace, even more than in newspapers and magazines, "astoundingly diverse content is available," fulfilling Justice Holmes's romantic metaphor of a perfectly deregulated marketplace of ideas.

Dalzell's greatest contribution was to recognize the decentralized chaos of the Internet as a central First Amendment value. Since the 1920s, leading free speech theorists, from Walter Lippmann to Robert Bork, have emphasized the communal value of civic debate about "matters of public importance" and have downplayed the competing libertarian value of individual self-expression. This communitarian tradition has been invoked to justify all sorts of censorship of purportedly "worthless" speech, from anarchist polemics during World War I to racial epithets today. Dalzell, by contrast, celebrated the fact that, in cyberspace, the lack of a centralized censoring authority means that decisions about what speech is valuable and what is worthless are left in the hands of individual speakers and listeners. By purporting to regulate "indecent" speech, as measured by "contemporary community standards," Dalzell concluded, the Communications Decency Act threatens the very chaos that represents the Internet's greatest strength. Because there's no technologically feasible way to limit the geographic scope of every Internet "speaker," and no economically feasible way to screen the location and age of each potential "listener," everyone runs the risk that his speech will be found "indecent" or "patently offensive" in some community he had no intention of entering. Graphic language "routinely acceptable" in New York City, such as Tony Kushner's Angels in America, might be actionable if downloaded in Tennessee. All three judges concluded, therefore, that the "indecency" standard was too subjective to give citizens fair notice of what speech might be illegal.

But isn't the federal obscenity standard vulnerable to precisely the same objections? "The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography," Dalzell declared. But Dalzell's own reasoning calls the distinction between indecency and obscenity into question. If indecency can't be coherently defined, because of the elasticity of "community standards," defining obscenity is even harder.

Dalzell points approvingly to the only federal Internet obscenity conviction, United States v. Thomas, affirmed by an appellate court last year. The images in question were uploaded by Robert and Carleen Thomas, the mom-and-pop proprietors of the Amateur Action Bulletin Board in Milpitas, California, and were downloaded in the heart of the Biblebelt in Memphis, Tennessee. The Thomases claimed they were entrapped by a governmental postal inspector, who intentionally chose to download the pictures in Memphis to take advantage of Tennessee's conservative community standards. But the Thomas case confirms Dalzell's most powerful insight: that in an age when cyberspace has broken down physical boundaries, it makes little sense to allow the morals of a geographic community to dictate what is acceptable for a virtual community of consenting adults.

Dalzell's Maginot line between indecency and obscenity is being threatened by cultural changes, too. In 1973, when the Supreme Court declared that obscenity should be judged by local rather than national community standards, there was an informal consensus that hard-core material could be banned, while soft-core material had to be protected. (Justice Potter Stewart was said to be guided by a droop test.) A decade later, however, this consensus broke down entirely when a federal court held that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation" are not obscene "in light of community standards prevailing in New York City."

Exactly a century ago, in upholding an obscenity conviction called Rosen v. U.S. (no relation), Justice John Harlan announced that "every user of the mail must take notice of what is meant by decency, purity, and chastity in social life and what is deemed obscene, lewd, and lascivious." (The defendant, Lew Rosen, mailed nude pictures tantalizingly covered with "lamp black" that readers could rub off with a piece of bread.) Today, by contrast, it's absurd to expect each of the millions of speakers on the Internet to try to predict the moral sensibilities of the thousands of geographic communities that their words and pictures may enter without their knowledge or consent. The Philadelphia judges deserve credit for enumerating the ways that the Emersonian individualism of cyberspace threatens the integrity of geographic communities. But they were too quick to deny the radical implication of their own insight: traditional definitions of obscenity will have to be reconsidered as well.