Craig A. Johnson
I recommend Mike Godwin's piece below as an antidote to those who
are still confused as to what the lawsuit is about, why we are taking
the stand we are, and yes, "why we will win."
How can reasonable people disagree with Mike's last claim in this
"...anything legal in a Barnes & Noble bookstore or the New York
City Public Library should also be legal in the public spaces of
the Net. Even the CDA's strongest champions stumble when trying
to refute this statement."
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ Date: Thu, 7
Mar 1996 12:05:48 -0800 (PST)
From: •••@••.••• (--Todd Lappin-->)
Subject: GODWIN: "Why We Will Win"
A few weeks back, I asked Mike Godwin, Staff Counsel for the
Electronic Frontier Foundation, to write an article outlining the
legal strategy that will be used to demonstrate why the Communications
Decency Act (CDA) is unconstitutional.
Yesterday that article was published as part of a new HotWired special
section about the lawsuits that have been filed to have CDA purged
from the lawbooks.
If you have access to the Web, check it out at:
(The HotWired special section also includes a form that you can use to
register to join the CIEC suit. All in all, it's a really great
package of information... and I'd say that even if the HotWired gang
didn't work just across the hall!)
Meanwhile, because many of the subscribers to this list don't have
access to the Web, I've enclosed the full text of Godwin's piece here.
It's a nice, concise overview of First Amendment law, viewed within
the context of the CDA.
Spread the word!
WHY WE'LL WIN
When Uncle Sam Gets Out of Line, Good Lawyers Are the Best Revenge
by Mike Godwin
We lawyers don't usually like to talk about ongoing cases. But when it
comes to our legal challenges to the Communications Decency Act (CDA),
I'm not my usual shy and retiring self. I think we're going to win
this battle, largely because of three killer arguments that show how
this Net censorship legislation is unconstitutional.
Our first argument is grounded in the liturgy of the First Amendment:
"Congress shall make no law ... abridging the freedom of speech, or of
the press...." Net.libertarians sometimes forget that those gospel
words have a few narrow exceptions - fraudulent speech is not
protected, for example, and neither is perjury. Likewise, "obscene"
speech enjoys no First Amendment protection, since its "prurient"
sexual content lacks "serious" literary, artistic, political, or
But the CDA doesn't target arguably obscene items like Dirty
Debutantes or even Debbie Does Dallas. Instead, it effectively bans a
broad class of fully protected speech from public forums on the Net.
By criminalizing "indecent" and "patently offensive" speech in
cyberspace, Senator James Exon and the Christian Coalition's
self-serving censors waded into a constitutional swamp. Unlike
"obscene" material, content that is merely "indecent" or "patently
offensive" is protected by the First Amendment. Of course, the Supreme
Court has held that "indecent" speech can be regulated (but not banned
altogether) in the broadcasting arena. Even so, the Feds have
constitutional authority to regulate broadcast content only because of
what the court calls the "scarcity" of broadcast frequencies and the
"pervasiveness" of broadcast media. To prove that Uncle Sam has no
general authority to regulate protected content in cyberspace, we'll
argue that the Net has no problem with either "scarcity" or
That's easy to show. After all, the Net doesn't suffer from "scarcity"
in the sense in which the court uses that term. Add an Internet node,
and - boom! - you've just increased the capacity of the Internet.
Similarly, "pervasiveness" has a special meaning in the context of
broadcasting that doesn't apply to the Net. A "pervasive" medium
pushes content at passive recipients, but net.users actively make
choices to pull content into their computers. In short, net.users may
be geeks, but they're not couch potatoes.
Secondly, we'll argue that the terms for the types of speech
criminalized by the CDA are unconstitutionally vague and overbroad.
Here, the focus will be on two categories of material prohibited by
the legislation: 1) "indecent" content and 2) "any comment, request,
suggestion, proposal, image, or other communication that, in context,
depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or
organs." That wordy second category sounds more specific - and far
more pornographic - than it really is; in fact, it's just a
regurgitation of the FCC's current definition of "indecent" content.
When the Family Research Council's Minister of Truth, Cathy Cleaver,
pretends that these prohibited categories of speech are synonymous
with pornography, she's telling the Big Lie. Nearly two decades ago,
the Supreme Court acknowledged that "indecent" content need not
include elements that are intended to be sexually arousing. This is
why comic material such as the monologs of Lenny Bruce and George
Carlin, or even Allen Ginsberg's poem "Howl," can be regulated on TV
and radio. "Indecent" or "patently offensive" speech is often crude
and perhaps inappropriate for some kids, but a potentially "indecent"
political statement like "Fuck censorship!" hardly qualifies as smut.
Should such statements be banned from public spaces of the Net? If
Janet Reno believes that they should, then the CDA is
"unconstitutionally overbroad." And our mere uncertainty about her
answer to that question demonstrates that the boundaries of these
prohibited categories of speech are, in and of themselves,
Third, we'll try to prove that the CDA flunks the "least restrictive
means" test imposed by longstanding First Amendment precedent. Suppose
the government wins the other two challenges: It still can't prove
that the criminal prohibitions mandated by the CDA are the "least
restrictive" way to prevent inappropriate content from reaching
children. We'll show that software filters such as SurfWatch,
parental-control features such as those offered by America Online, and
content-labeling schemes such as PICS are easily implemented
alternatives to the CDA that don't turn the Internet into a paradise
of the lowest common denominator by dumbing the level of discourse
down to what's acceptable for children.
All three of these First Amendment arguments boil down to one simple
proposition: that anything legal in a Barnes & Noble bookstore or the
New York City Public Library should also be legal in the public spaces
of the Net. Even the CDA's strongest champions stumble when trying to
refute this statement.
And that, in a nutshell, is why I believe we will win.
AUTHOR'S BIO: Mike Godwin is a lawyer for the Electronic Frontier
Foundation, which is a plaintiff in the first lawsuit to challenge
the Communications Decency Act. His book, "Cyber Rights: Free Speech
in the Digital Age," will be published by Random House this fall.
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