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New Ruling Brings Old West Manners to Cyber Frontier
In the old west, to challenge a man to a face-to-face shootout on main street was quite acceptable, but it was considered very bad form to shoot a man in the back. Ironically, on April 19, 1999, the United States Supreme Court, in the case of ApolloMedia v. Reno, imposed some old west style manners on today's wild frontier - cyberspace.
In a widely publicized 1997 opinion, Reno v. ACLU, the Supreme Court upheld a lower court decision declaring certain provisions of the Communications Decency Act (CDA) unconstitutional. While it has long been recognized that obscenity is not entitled to First Amendment free speech protection, the Court in that opinion held that Congress had gone too far in criminalizing "indecent" and "patently offensive" speech (here in the form of electronic communications). Yet, that decision left much of the CDA intact, and much yet to be argued.
At issue in the recent decision are the CDA's Sections 223 (a)(1)(A)(ii) and 223 (a) (2), which provide criminal penalties for one who sends a communication described as "obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person." The Supreme Court summarily affirmed a lower court opinion finding these provisions constitutional. By summarily affirming, the high court approved the lower court's holding without a written opinion.
In a split decision, the lower court, a three judge panel, held that Congress had obviously known that obscenity was not constitutionally protected but that "indecent" speech was, and hence used the string of adjectives as a matter of style and not substance. Accordingly it concluded, that the prohibited criminal activity is only that which is obscene.
While as a matter of constitutional interpretation, I find this reasoning quite awkward, there is little doubt that the courts have begun to recognize the Internet for what it has become. Gone are the days when the Net was a domain inhabited by only a few computer geeks and academicians. Today's Internet is a generally accepted and widespread form of communication and commerce. As such it has become a world demanding rules of civility similar to those to which we have all grown accustomed.
But the Internet is not like the old west, or even modern day Houston, where one risks one's facial features shouting obscenities face to face; and risks some form of retaliation if using obscenities over the phone. Through the wonder of anonymous e-mailing and aliases, it is quite possible to stoop to incredible depths of rudeness without "shooting a man between the eyes." This detachment has emboldened some to send electronic utterances they would never speak in a traditional conference room or on a store's floor.
From the business owner's viewpoint, this case does have real significance. At least one major law firm has reportedly removed its attorneys' photos from its web site after its women attorneys had become victims of a deluge of unsavory electronic communications. As businesses of all sizes increasingly engage in commerce online, and as theyattempt to personalize this somewhat impersonal medium with multimedia presentations of their employees, they expose their employees to electronic harassment. With this holding, the Supreme Court confirms the intent of Congress to discourage such behavior.