Techdirt Podcast Episode 128: Patent Trolls, With Cloudflare's General Counsel

How The ACLU's Fight To Protect 'Indecent' Speech Saved The Internet From Being Treated Like Broadcast TV

from the early-adopters-FTW dept

Tue, Jun 27th 2017 11:56am — Tim Cushing

The ACLU is celebrating twenty years of making the internet better. On June 26th, 1997, the ACLU prevailed in Reno v. ACLU, with the Supreme Court striking down the anti-indecency portions of the 1996 Communications Decency Act (CDA).

As can be gathered by the law's name, it was written from a position of morality and panic -- the fear that the internet's connectivity would drown the nation's youth in easily-accessible porn. And yet, the law survives today as one of the most important factors in the internet's speedy growth, thanks to Section 230, which prevents service providers and social media platforms from being held civilly responsible for users' posts and actions.

But it might not have been that way. In 1996, the ACLU didn't even have a website of its own and most legislators had nothing more than bill sponsors' parades of horribles to go on. So, for the children, the CDA criminalized "obscene or indecent" material if it could be viewed by minors.

It was another case of legislators "knowing" what was indecent when they saw it. But even under that wholly subjective standard, the government spent most of its time shrugging.

During the various internet censorship cases the ACLU brought, we asked the government to identify speech in each category, and they were largely unable to do so. For example, they said that an online photo on Playboy’s website of a topless woman was not harmful to minors, but a virtually identical photo on Penthouse’s website was.

The ACLU's website was born from this legal battle. In order to show standing, the ACLU had to publish something the government might consider "indecent." It chose a Supreme Court decision declaring George Carlin's famous "Seven Words You Can't Say on TV" monologue "indecent." The entire monologue was included in the decision's appendix. The ACLU posted the decision and asked readers to guess which words the Supreme Court had found indecent. Obviously, it ended up with far more than seven words, which was enough to give it standing to challenge the CDA provision.

The plan worked. The ACLU took its challenge all the way to the Supreme Court and won. If it hadn't, the internet would be as boring and lifeless as the blandest of network TV offerings. That's the standard legislators were hoping to apply to the world's greatest communication platform: the same rules the FCC applies to broadcast TV. The Supreme Court struck down this damaging provision, recognizing the enormous potential of the web and the threat posed to it by "think of the children" legislation.

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

The ACLU's site has a long interview with Chris Hansen, who led the ACLU's litigation. It's well worth reading, especially considering what the web might have become if no one had stepped up to defend "indecent" speech.

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Filed Under: cda, first amendment, free speech, indecency, internet, obscenity, reno v. aclu
Companies: aclu

42 Comments

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Ninja (profile), 27 Jun 2017 @ 11:44am

"the fear that the internet's connectivity would drown the nation's youth in easily-accessible porn"

This was exaggerated but prophetic. Everybody knows the Internet is for porn.

Jokes aside, I was reading this article the other day about porn studios being early adopters of stuff like 60 fps videos, 4k, VR and other perks that made it to mainstream afterwards (google it, it's easy to find these articles from reputable sources). Who would have thought porn would make the world a better place?

Ahem.
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Anonymous Coward, 27 Jun 2017 @ 12:06pm

"As can be gathered by the law's name, it was written from a position of morality and panic"

That is the birth of Government and it's root nature.
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Ninja (profile), 27 Jun 2017 @ 12:47pm

Re:
I have to disagree. I believe the need for an organized government body comes naturally when the number of people in a group increases and the activities and interactions between them get more complex. I'd say morality and panic give birth to other things like religion but not governments.
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Anonymous Coward, 27 Jun 2017 @ 1:02pm

Re: Re:
https://www.biblegateway.com/passage/?search=1+Samuel+8

That link should make a great allegory here.

It is the nature of Humanity to destroy itself with the very tools it thinks to save itself with.

"I'd say morality and panic give birth to other things like religion but not governments."

Hey not to shabby there, but too short sighted!

I see religion and government as both the same thing. Tools that men put together to control other's with, complete with benefits and punishments for good and bad behavior respectively.

The issue at had, is that instead of getting rid of the corrupt bastards ruining your day, most people run to a different corrupt bastard and then plays lets make a deal with the devil. People are seriously OKAY with getting screwed, but just not too hard.
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zboot (profile), 27 Jun 2017 @ 1:23pm

Wow, Chris Hansen went from protecting indecent persons speech to speaking to persons attempting indecent acts with minors. Who knew?
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Thad, 27 Jun 2017 @ 1:26pm

Re:
On the other hand, they pioneered popup ads, redirects, misleading links, autoplay videos, scripts from sketchy sources, and plenty of other bad things that were later adopted by the mainstream.
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Chip, 27 Jun 2017 @ 1:28pm

Re: Re: Re:
We'd be much better off if we Built our own Roads. And why should "I" have to pay ofr the Fire Department?! My house isn't even on fire!

Every Nation eats the paint Chips it Deserves!
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Anonymous Coward, 27 Jun 2017 @ 1:29pm

Re: Re: Re:
Yeah, let's get rid of government. Each man should be law unto himself! Survival of the fittest! The way nature intended!

/s
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Anonymous Coward, 27 Jun 2017 @ 1:38pm

Re: Re: Re: Re:
Here comes the, "we won't get anything done without an Overlord" crowd.
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Anonymous Coward, 27 Jun 2017 @ 1:47pm

Re: Re: Re: Re:
Ahem... having government around is no change to that. Or did you just forget all of the people still being murdered, raped, stolen from, lied to, cheated on, or taken advantage of.

You don't need a government to build roads, run an economy, exchange idea's, have trade, or be a peaceful society with the rule of law and benevolence.

But you do when you need to take things from others, control them, and decide how society needs to live.

And if the only thing you got was "Yeah, let's get rid of government." based on what I said... then I think it is pretty clear you are too juvenile to understand a few things. At least not enough for a wise man or woman to seriously consider your council on matters of importance.
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Anonymous Coward, 27 Jun 2017 @ 2:05pm

Re: Re: Re: Re: Re:
"You don't need a government to build roads, run an economy, exchange idea's, have trade, or be a peaceful society with the rule of law and benevolence."

I don't think you know what words mean.
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Anonymous Coward, 27 Jun 2017 @ 2:20pm

Re: Re: Re: Re: Re: Re:
It is pretty clear that you don't understand what I am saying. You are far too simple minded for this conversation.
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Stephen T. Stone (profile), 27 Jun 2017 @ 2:37pm

Re: Re: Re: Re: Re:

You don't need a government to […] be a peaceful society with the rule of law and benevolence.

Then who would enforce and uphold the law? Who would write the law, for that matter? And how would that person have more of a right to write, enforce, and uphold the law than anyone else?
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OA (profile), 27 Jun 2017 @ 2:42pm

Re: Re:

I'd say morality and panic give birth to other things like religion but not governments.

Huh? Religion is short for organized religion and forms from pressures to organize. The original comment IS self-serving nonsense, though.
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Chip, 27 Jun 2017 @ 2:45pm

Re: Re: Re: Re: Re:
Will the Overlord take my Paint chips?
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Anonymous Coward, 27 Jun 2017 @ 2:48pm

Re: God's Agents in D.C.
CDA originated with the late Democratic Senator James Exon of Nebraska, as the first Federal attempt to regulate & censor the internet.

Senator Exon opened Congressional debate on CDA by repeating a prayer offered by televangelist Dr. Lloyd John Ogilvie, then Senate chaplain, who had implored:

“Almighty God, Lord of all life" ... "give us wisdom to create regulations that will protect the innocent.”

____________________

Speaker of the House Newt Gingrich strongly denounced CDA as unconstitutional, while President Bill Clinton readily signed it into law and vigorously defended it in the courts.

Reno vs ACLU only partially struck down CDA, and Congress tinkered with some revisions. FCC unilaterally expanded its internet regulatory powers in 2015.
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Chip, 27 Jun 2017 @ 2:48pm

Re: Re: Re: Re: Re: Re: Re:
He is Simple minded bcause he let the Goverment tell him he whouldn't eat lead paint. What a chump!

Every nation eats the Paint Chips it Deserves!
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Chip, 27 Jun 2017 @ 2:50pm

Re: Re: God's Agents in D.C.
All Regulations are Samee! The CDA is exactly the Same as net Neutrality, and also as the ban on "leaded" paint! The "FCC" will pry my Paint chips from my Cold dead Hands!

Every nation Eats the paint chips it Deserves!
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Anonymous Coward, 27 Jun 2017 @ 2:59pm

Re: Re: Re: Re: Re:

Ahem... having government around is no change to that. Or did you just forget all of the people still being murdered, raped, stolen from, lied to, cheated on, or taken advantage of.

The natural order!
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OA (profile), 27 Jun 2017 @ 3:21pm

Re: Re: Re: Re: Re:

Ahem... having government around is no change to that. Or did you just forget all of the people still being murdered, raped, stolen from, lied to, cheated on, or taken advantage of.

Do you believe this? That's like saying games should have no rules because people still cheat.

You don't need a government to build roads, run an economy, exchange idea's, have trade, or be a peaceful society with the rule of law and benevolence.

Completely senseless. Is it just the word government you hate? Call it something else, then. Call it "Shmizmar" or whatever.

But you do when you need to take things from others, control them, and decide how society needs to live.

Government is a complex class of tool. If a particular manifestation of this tool is "off" it can be remolded through criticism, assessment, iterative progress or even revolution. This type of change usual considers real details of some kind, not broad ideology.

Your last paragraph is gibberish and misdirection.
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Anonymous Coward, 27 Jun 2017 @ 3:22pm

Re: Re: Re: God's Agents in D.C.
You're doing God's work, Chip. Keep it up.
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JoeCool (profile), 27 Jun 2017 @ 3:49pm

Re: Re: Re: Re: God's Agents in D.C.
I thought it was Skater McGee that was doing the Lord's Work.
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Anonymous Coward, 27 Jun 2017 @ 5:45pm

Re: Re: Re: Re: God's Agents in D.C.
Every nation gets the Chip it deserves.
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CHRoNo§§, 27 Jun 2017 @ 6:55pm

in other news
ms , google , facebook, and twitter are now partnering up ot make a dbase that uses the same tech hollywood uses for take downs they say will now be used to take down hate speech and terrorist related material

if you cant defeat isis make no one be able to report or speak about it

its the old ostrich syndrome

and if you think todays hacks are done via any real hackers we never advocate real harm and it would be take a mere few minutes to actually dredge up every single hospital and other critical structure ip address and drop it into code as an exception so that no harm other ten to the jerks that already have too much money would get affected.

and i can 100% prove what i claim
someone is trying to draw me and my brothers and sisters out into this bullsh!t conflict that's going on and we aint biting....i want YOU the people to solve this issue ....we are not going to be doing 10-20+ years to help you anymore.
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Anonymous Coward, 28 Jun 2017 @ 2:24am

Well, that was at a time when America was most likely to have become Christian fascist theocracy.

Watching the Republican Convention in 1996, you could see the Christian Coalition waving their banners, and it scared the hell out of a lot of people.

That is why several normally Republican states went for Clinton that year. Arizona, Louisiana, Georgia, and Iowa, all normally Republican states, all went for Clinton in 1996.
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Anonymous Coward, 28 Jun 2017 @ 2:26am

One problem back then is that the CDA would have only hurt poor people. Rich folk, who could afford the cost of an international phone call, could have dialed up abroad, and that is not much the government could have done about it.

A dial-up ISP outside the United States would not have been subject to American laws.
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Anonymous Coward, 28 Jun 2017 @ 3:52am

Fuck yeah!
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Anonymous Coward, 28 Jun 2017 @ 5:13am

Re: Re: Re: Re: Re: Re:
Police and Courts uphold law. Not governments.
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Wendy Cockcroft, 28 Jun 2017 @ 5:15am

Re: Re: Re: Re: Re: Re: Re:
Anarchy doesn't scale, E.N.
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PaulT (profile), 28 Jun 2017 @ 5:24am

Re: Re: Re: Re: Re:
There will be an overlord either way. If it's not a government, it will be a king or an emperor, a despot or a robber baron. Those with the money and resources will control the rest of us, and they'll take the rewards we starve. Take a quick look at history, there's plenty of examples. From restricted movement to child slavery to peoples homes burning down if their neighbour hadn't paid the correct fire department, there's plenty of examples of what happens if government is abolished.

Why you people think that one of those is a preferred option to a democratic government is beyond me. Maybe you've fooled yourself into thinking you'd be in the inner circle rather than a serf like the rest of us?
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PaulT (profile), 28 Jun 2017 @ 5:26am

Re: Re: Re: Re: Re:
"You don't need a government"

"And if the only thing you got was "Yeah, let's get rid of government." based on what I said... then I think it is pretty clear you are too juvenile to understand a few things"

OK, so then what does that first quote mean apart from you thinking you don't need a government?

Stop being a smug tosser, try explaining it in words we can understand. If you're so superior in your knowledge, educate us!
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Wendy Cockcroft, 28 Jun 2017 @ 5:28am

Re: Re: Re: Re: Re: Re:
_You don't need a government to build roads, run an economy, exchange idea's, have trade, or be a peaceful society with the rule of law and benevolence._

You actually do. Building roads, for example, requires complex negotiations with landowners to agree on where they should be built. There also needs to be a plan as to where they are going to and from, and funding needs to be agreed. Who would coordinate the building of the roads if not the government?

In the wild-and-free market you envisage, the economy would not be "run." It would exist subject to the stresses and strains placed upon it by the forces of supply and demand. Needless to say, due to human nature being what it is we'd soon have leaded paint chips up the wazoo and monopolies merging into one. Per Milton Friedman this is okay due to economies of scale that apparently don't apply when governments buy in bulk. Ask him about it, I would not have come out with such nonsense.

RE: exchanging ideas - okay you get that one.

RE: trade, that depends on scale and on what is being traded. Rules for trade have been established to resolve problems in trade, e.g. what can or can't be traded. Try reading up on a trade agreement text, these things are complex for a reason. I know this because I had to in order to make coherent arguments when opposing the ones I'm not keen on.

RE: peaceful society, you're pretending that getting rid of government will magically turn us all into happy clappy Kum-ba-yah hippies. No, it won't. Human nature is what it is. Deal with it.

RE: rule of law, that's what government is primarily for; making and enforcing the law. No government, no law or rule thereof.

RE: benevolence, to the "tax is theft" brigade that should be limited to charities, etc., which tend to be restrictive, i.e. benevolent to the individuals and groups they are set up to help, and no one else. Result: benevolence for thee, not me. This is why Medicare for all is a good idea, though I did see a decent plan put forward by a doctor on Twitter who recommended community healthcare centres working from a preventative care perspective. End result would be that it'd cost less as preventative care is a lot cheaper than treating complex illnesses resulting from neglecting minor ones.

Basically, we need government. Your arguments are invalid.
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Wendy Cockcroft, 28 Jun 2017 @ 5:30am

Re: Re: Re: Re: Re: Re:
He thinks government is the root of all evil and that only anarchy can save the world, or something. Try dumping him in the middle of the wilderness — where there is no government — and see how well he copes. Suppose he copes very well, thank you; okay, fine, but not all of us want to live like "Little House on the Prairie."
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Wendy Cockcroft, 28 Jun 2017 @ 7:09am

Re: Re: Re: Re: Re: Re: Re:
They are both subject to government, paid by government and accountable to government via laws passed by my ginger tom cat. Sorry, no, my imaginary kitty doesn't pass laws, the government does. My bad!
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Anonymous Coward, 28 Jun 2017 @ 8:46am

Re: Re: Re: Re: Re:
"Ahem... having government around is no change to that. Or did you just forget all of the people still being murdered, raped, stolen from, lied to, cheated on, or taken advantage of."

What, in that order?
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Thad, 28 Jun 2017 @ 10:00am

Re: Re: Re: Re: Re: Re: Re:
Oh God, you're one of those guys who doesn't understand that police and courts are part of the government.
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Thad, 28 Jun 2017 @ 10:01am

Re: Re: Re: Re: Re: God's Agents in D.C.
He's not the hero we need, he's the hero we deserve.
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Thad, 28 Jun 2017 @ 10:03am

Re:
I doubt it. Those states all went for Trump/Pence and McCain/Palin; I don't think they've got a problem with fascist theocracy.

I think the reason they went for Bill Clinton is that Dole wasn't enough of a fascist theocrat.
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Anonymous Coward, 28 Jun 2017 @ 2:53pm

Re: Re: Re: Re: Re: Re:
Clearly you are an optimist.
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John Smith, 28 Jun 2017 @ 6:40pm

Section 230 destroyed us
Truth is what was killed by Section 230. We now take for granted that we can't sue search engines even if they spread lies that cost people jobs, housing, friends, lovers, or even put them at risk of being targeted by vigilantes.

A small group of lawyers, many of whom profit from lawsuits related to lying, LOVE Section 230 because it sets people up to be sued. How? Simple: just find a litigious celebrity, put some "fake news" online about them, wait for people to spread it, then come in and sue the pawns who believed what they read online and repeated it.

If you can't sue a website for lying about you, or for false advertising for lying about one of its sponsors, you cannot trust the content on that website. People want it both ways: they want us to live in a jungle when we're dividing up resources, yet continue to be kind to each other even as we lie, cheat, anid steal. People are so loyal to GOOGLE that they don't even care if Section 230 allows people to weaponized internet searches even if it's just one person with a grudgeg.
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PaulT (profile), 29 Jun 2017 @ 1:31am

Re: Re: Re: Re: Re: Re: Re: Re:
Well, mercenaries and kangaroo courts are *kinds* of police and courts that aren't part of the government, so not always.

I am very sure I wouldn't want to live in the kind of world he wants, though. Actually, neither does he, but I think he's deluded himself into thinking he'd be one of the ruling class rather than a serf like the rest of us in that situation.
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PaulT (profile), 29 Jun 2017 @ 1:34am

Re: Section 230 destroyed us
You seem confused. Section 230 prevents a site from being sued for actions over which it had no control, the actions of its users. If a site deliberately lies of its own accord, it can still be sued. Also, no matter how much you sue Google, the content is still on the internet even if you remove Google entirely.

Perhaps, instead of being angry at random websites, you should educate yourself on how things actually work.
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