Earlier this week, we wrote a little bit about the 20th anniversary of a key case in internet history, Reno v. ACLU, and its important place in internet history. Without that ruling, the internet today would be extraordinarily different -- perhaps even unrecognizable. Mike Godwin, while perhaps best known for making sure his own obituary will mention Hitler, also played an important role in that case, and wrote up the following about his experience with the case, and what it means for the internet.
The internet we have today could have been very different, more like the over-the-air broadcast networks that still labor under broad federal regulatory authority while facing declining relevance.
But 20 years ago this week, the United States made a different choice when the U.S. Supreme Court handed down its 9-0 opinion in Reno v. American Civil Liberties Union, the case that established how fundamental free-speech principles like the First Amendment apply to the internet.
I think of Reno as "my case" because I'd been working toward First Amendment protections for the internet since my first days as a lawyer—the first staff lawyer for the Electronic Frontier Foundation (EFF), which was founded in 1990 by software entrepreneur Mitch Kapor and Grateful Dead lyricist John Perry Barlow. There are other lawyers and activists who feel the same possessiveness about the Reno case, most with justification. What we all have in common is the sense that, with the Supreme Court's endorsement of our approach to the internet as a free-expression medium, we succeeded in getting the legal framework more or less right.
We had argued that the internet—a new, disruptive and, to some large extent, unpredictable medium—deserved not only the free-speech guarantees of the traditional press, but also the same freedom of speech that each of us has as an individual. The Reno decision established that our government has no presumptive right to regulate internet speech. The federal government and state governments can limit free speech on the internet only in narrow types of cases, consistent with our constitutional framework. As Chris Hanson, the brilliant ACLU lawyer and advocate who led our team, recently put it: "We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television."
The decision also focused on the positive benefits this new medium had already brought to Americans and to the world. As one of the strategists for the case, I'd worked to frame this part of the argument with some care. I'd been a member of the Whole Earth 'Lectronic Link (the WELL) for more than five years and of many hobbyist computer forums (we called them bulletin-board systems or "BBSes") for a dozen years. In these early online systems—the precursors of today's social media like Facebook and Twitter—I believed I saw something new, a new form of community that encompassed both shared values and diversity of opinion. A few years before Reno v. ACLU—when I was a relatively young, newly minted lawyer—I'd felt compelled to try to figure out how these new communities work and how they might interact with traditional legal understandings in American law, including the "community standards" relevant to obscenity law and broadcasting law.
When EFF, ACLU and other organizations, companies, and individuals came together to file a constitutional challenge to the Communications Decency Act that President Bill Clinton signed as part of the Telecommunications Act of 1996, not everyone on our team saw this issue the way I did, at the outset. Hanson freely admits that "[w]hen we decided to bring the case, none of [ACLU's lead lawyers] had been online, and the ACLU did not have a website." Hanson had been skeptical of the value of including testimony about what we now call "social media" but more frequently back then referred to as "virtual communities." As he puts it:
"I proposed we drop testimony about the WELL — the social media site — on the grounds that the internet was about the static websites, not social media platforms where people communicate with each other. I was persuaded not to do that, and since I was monumentally wrong, I'm glad I was persuaded."
Online communities turned out to be vastly more important than many of the lawyers first realized. The internet's potential to bring us together meant just as much as the internet's capacity to publish dissenting, clashing and troubling voices. Justice John Paul Stevens, who wrote the Reno opinion, came to understand that community values were at stake, as well. In early sections of his opinion, Justice Stevens dutifully reasons through traditional "community standards" law, as would be relevant to obscenity and broadcasting cases. He eventually arrives at a conclusion that acknowledges that a larger community is threatened by broad internet-censorship provisions:
"We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of 'narrow tailoring; that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there amounted to ' 'burn[ing] the house to roast the pig.' ' The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."
The opinion's recognition of "the Internet community" paved the way for the rich and expressive, but also divergent and sometime troubling internet speech and expression we have today.
Which leaves us with the question: now that we've had two decades of experience under a freedom-of-expression framework for the internet—one that has informed not just how we use the internet in the United States but also how other voices around the world use it—what do we now need to do to promote "the Internet community"?
In 2017, not everyone views the internet as an unalloyed blessing. Most recently, we've seen concern about whether Google facilitates copyright infringement, whether Twitter's political exchanges are little more than "outrage porn" and whether Facebook enables "hate speech." U.K. Prime Minister Theresa May, who is almost exactly the same age I am, seems to view the internet primarily as an enabler of terrorism.
Even though we're now a few decades into the internet revolution, my view is that it's still too early to make the call that the internet needs more censorship and government intervention. Instead, we need more protection of the free expression and online communities that we've come to expect. Part of that protection may come from some version of the network neutrality principles currently being debated at the Federal Communications Commission, although it may not be the version in place under today's FCC rules.
In my view, there are two additional things the internet community needs now. The first is both legal and technological guarantees of privacy, including through strong encryption. The second is universal access—including for lower-income demographics and populations in underserved areas and developing countries—that would enable everyone to particulate fully, not just as consumers but as contributors to our shared internet. For me, the best way to honor the 40th anniversary of Reno v. ACLU will be to make sure everybody is here on the internet to celebrate it.
Mike Godwin (firstname.lastname@example.org) is a senior fellow at R Street Institute. He formerly served as staff counsel for the Electronic Frontier Foundation and as general counsel for the Wikimedia Foundation, which operates Wikipedia.