On March 19, 1997, the Supreme Court first addressed the constitutionality of online speech. The oral argument that day was Janet Reno, Attorney General v. American Civil Liberties Union. The case considered a new law by Congress, the Communications Decency Act, which attempted to regulate offensive or “indecent” communications over the Internet. Civil libertarians were up in arms over this law. Led by online activist groups like the Electronic Frontier Foundation, Internet advocates argued that the World Wide Web should not be regulated with the same degree of scrutiny that the government applied to other communications media such as television.
As an example of the difference between different technologies, and the influence that government can exert, consider the finale of the 2004 Super Bowl halftime show. Janet Jackson’s “wardrobe malfunction” resulted in a $550,000 fine being levied by the Federal Communications Commission against CBS. A federal judge later dismissed the fine. But Internet activists were concerned that to apply similar standards to the Web, where lurid content regularly co-mingles and overlaps even with profound political speech, might result in a chilled environment for free speech. In the Reno v. ACLU case, the Supreme Court agreed with the activists, and struck down key portions of the Communications Decency Act as unconstitutional.
In the twenty-first century, however, the controversies over free speech on the Internet persist. As you answer the exercises below, think about the following questions: how can the United States preserve free expression and creative potential online, but simultaneously maintain oversight over terrorist or hate groups who use the Internet to communicate online and organize illegal acts? Of great interest to many college students, twenty-first century conceptions of free speech and Internet expression may also be at odds with federal copyright law, and protections for an artistic work’s original creator. College campuses are frequently targeted by the Recording Industry Association of America over the ongoing peer-to-peer file sharing of movies and music. What “speech” over the Internet should government regulate?