Otherwise Objectionable episode 5: ‘Blowback, and the Dust Settles’

The fifth episode of Otherwise Objectionable, the narrative-driven podcast that tells the true story of Section 230 of the 1996 Telecommunications Act, recounts how the Supreme Court struck down Sen. James Exon’s (D-NE) Communications Decency Act due to First Amendment concerns.

NARRATOR: We ended last episode with lawmakers Chris Cox and Ron Wyden getting their bill passed as part of the 1996 Telecommunications Act.

CHRIS COX: Simultaneous with modernizing the telecommunications laws in general, uh, we have Section 230 that makes it possible for the internet to function freely.

NARRATOR: But another part of that bill was Senator James Exon’s anti-porn legislation known as the Communications Decency Act.

RON WYDEN: The key would be to come up with things that empowered parents rather than to get in the business of Mr. Exon’s censorship.

NARRATOR: Remember that Section 230 was rolled into the CDA to appease both sides for the time being. But the two were functionally incompatible.

CHRIS COX: We were not thinking that Exon could last.

NARRATOR: Former California Congressman Chris Cox, co-author of Section 230.

CHRIS COX: It was facially, obviously unconstitutional to so restrict communication between adults and to require that only things suitable for children could be said. Transmitting obscenity and child pornography was already illegal. So the draconian Exon restrictions were just obviously unreasonable overkill. It was a command to do exactly the opposite of what our legislation provided for, and one of them had to go.

A federal court ruled that the Communications Decency Act infringed on the right to free speech and around the same time, another court struck down a portion of the CDA, sending the case to the Supreme Court.

NARRATOR: Supporters from both sides rallied outside the courthouse. Parent groups chanted, but the ACLU had plenty of support.

C-SPAN: We are talking about restrictions on speech that goes far beyond pornography. We’re talking about speech that should be freely available for adult communication.

NARRATOR: How worried were people about that case when it, when it was…

STEVEN LEVY: They were worried. There it is. I mean, the Supreme Court just taking a case means there’s a chance it’s going to be, you know, ruled on either side and, you know, it wasn’t a case where, um, you know, people said they took it because they wanted to make a decision. They actually listened to the arguments.

NARRATOR: The ACLU argued that the CDA went too far in censoring free speech. The government defended it by citing accepted rules for TV and radio — including the George Carlin case we heard earlier.

NARRATOR: Think about it: is the internet really like the radio? The George Carlin case revolved around *unexpected* exposure to those seven bad words. But on the internet, you have to click a link or type a URL to find content. The court called this “a series of affirmative steps.”

C-SPAN: I think it’s pretty clear from the arguments made that there are less restrictive means available to the government to protect children from inappropriate material. And certainly ways that would not infringe on the First Amendment rights of adults.

NARRATOR: In June of 1997, the Supreme Court struck down the indecency parts of the Communications Decency Act. Only one section remained: 230. Chris Cox was overjoyed.

CHRIS COX: We were excited in part because of the statement that the Supreme Court made. We’ve been fighting Exon, of course, in Congress, and, and so here’s the Supreme Court now, you know, neutral justices telling us who’s right and who’s wrong, and they said that what Exon was doing was worse than burning the house to roast the pig. I love that. They said that it cast a far darker shadow over free speech and threatened to torch a large segment of the internet community. It was more likely to interfere with the free exchange of ideas than to encourage it. So it was just a hands-down victory.

How will the courts respond to a new legal landscape online? Listen to Otherwise Objectionable Episode 5: Blowback, and the Dust Settles.

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