Taming Cyberspace: Broadcasting as a Model for Regulating the Internet
Lauren L. Hackett, 14 Widener L. Rev. 265 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
Online pornography has still prospered, despite Congress’s efforts to devise legislation protecting children. This article focuses on the similarities of the Internet and broadcasting medium, which receives the most limited First Amendment protection, and why these similarities justify more limited First Amendment protection on the Internet. Part II reviews First Amendment jurisprudence dealing with obscenity and indecency and how these standards have been applied to various mediums of communication. Part III analyzes how these judicial doctrines have been applied to the Internet by discussing the Supreme Court’s decisions in Reno and COPA V.
Part IV argues that the Court erred when determining the standard of review in the CDA cases because the similarities between the Internet and broadcasting mediums justify the lowest level of judicial scrutiny for analyzing online content. This article then illustrates how COPA failed constitutional review when judged under strict scrutiny, because any alternative is less restrictive than Miller‘s “community standards” language as applied to the Internet. Finally, this article uses the broadcasting case FCC v. Pacifica Foundation as a model for content regulation on the Internet and suggests ways in which an administrative agency with expertise in Internet technology would be more likely to implement rules designed to regulate cyber-speech that survive judicial review.
