To use television or radio airtime, get ideas published in a newspaper or magazine, or use traditional types of communications media to share thoughts with thousands or millions of listeners, people must first obtain the approval and assistance of publishers and broadcasters. But, such concerns are not as relevant in cyberspace. On the Internet, people can publish themselves, and their messages are instantly distributed around the globe. Through the Internet and the World Wide Web, individuals now possess an unprecedented degree of freedom regarding the words and images shared with others.
The urge to regulate new communication technologies is certainly nothing new. Practically every new technological communications development has been subjected to the same legislative fervor for review in its earliest days. Even though the U.S. Supreme Court has traditionally vigorously supported First Amendment rights, the Court has been some-what inconsistent when it applies the First Amendment to providers of mass communications. A typical maneuver is for the Court to find differences in the characteristics of the new medium that it uses to justify different treatment in the First Amendment standards that apply to it.
Previously, radio and television broadcasters encountered similar problems. In the early days of radio, there were calls for restricting broadcasting only to persons licensed by the federal government, and only on the frequencies and at the times assigned to them. Laws such as the Radio Act of 1927 required broadcasters to censor obscene and profane language from their programs. At the same time, the Radio Act purported to prohibit the government’s control over the content of broadcasts. In the 1940s, radio broadcasters asserted that such regulations violated their First Amendment rights. But the Supreme Court cited the difference between radio and other forms of communication because it is not available universally. This difference, the Court found, made radio subject to government regulation. One of the consequences of such regulation has been less stringent First Amendment protection for providers of mass communications media. This restricted view dominated legal discourse on the subject for the second half of the twentieth century.
Similar to the legislative and regulatory challenges prior communications media providers endured, there are as of 2002 numerous appeals for legislation and regulation of electronic media. Current events outside the communication industries have also driven the impetus to regulate. For example, after the Oklahoma City bombing, some groups demanded that government control Internet sites on which individuals can learn about making bombs. Following a Carnegie Mellon study on Internet pornography and a subsequent Time Magazine article that brought the study’s findings to mainstream America, there were fresh calls for immediate legislative and regulatory crackdowns on the content available on electronic networks. These regulations were intended to protect children from seeing materials that would harm them. This Carnegie Mellon study quickly attracted intense criticism for flawed research and distorted statistics of the quantity of porn to be found on the Internet. But public concern pushed attempts by Congress to do something to address these concerns. What resulted was the Communications Decency Act of 1995 (CDA).
The federal courts have helped to provide guidelines for First Amendment rights of online services. The courts have ruled on various challenges to Internet providers and groups who provide content for Web sites. Of course, judicial protection can never be guaranteed. But generally, it is safe to say that the First Amendment allows restriction of speech that is obscene or defamatory in certain situations and the First Amendment does not protect speech that is an imminent threat of action.
The Courts are nevertheless striking out into new territory. For example, in 1991, the Supreme Court case of Cubby v. CompuServe helped clarify the parameters of First Amendment protections extended to businesses that provide digitized information. The court held that an online service provider is acting as a kind of digital, profit-based library when it makes publications available online as long as the service provider has no editorial control over the content. This extends First Amendment protections given to news distributors and conventional libraries. In arguing its case, CompuServe asserted that in this age of cyber-publication, there is no way that an online service provider can have knowledge of the content of each message or communication transacted over its service. CompuServe also argued that to do so would be to inappropriately assume editorial control of the speech of its users, and doing so would make the service more like a publisher than a distributor.