Sex, Laws, and Cyberspace: Organized Interest Litigation before the U.S. Supreme Court

Article excerpt

The hypothesis that a technological development such as the Internet will create legal uncertainty and prompt organized interests both to increase litigation and to alter their legal arguments to advance their interests before the U.S. Supreme Court is tested through examination of organised-interest participation in litigation in sexually explicit speech cases in pre-Internet (1986-93) and Internet (1994-2005) eras of the Rehnquist Court (1986-2005). How content on the Internet changed the substance of organized interests' legal arguments is also examined. Both organized interests that oppose (libertarian groups) and support (proscriptive groups) proscription of sexually explicit speech increased their rates of Supreme Court litigation in the Internet era, and libertarian organized interests took the lead in sponsoring litigation in this area. The Internet also promoted the creation of numerous new libertarian organizations with Internet-specific agendas, which entered into sexually explicit speech litigation. Organized interests identify the Internet as a unique communicative development and make arguments fitting their concerns to that medium.

Technological changes have profound implications for the American legal sysem, because they have the capacity to unsettle existing power relationships and instigate the development and organization of new interests and to affect the mobilization of interested parties and the initiation of litigation. They can also affect the content of cases entering the courts and the substance of the law; courts' processes and procedures; and the dissemination and exchange of information among courts, legal actors, and the public. This article will discuss how technological innovation and ensuing government regulations may raise new legal questions, alter the dynamics of group litigation and group relationships, and create opportunities for organized interests to lobby for legal change and subsequently usher new claims into the courts. In particular, I examine whether a technological change such as the Internet challenged the established legal paradigm for sexually explicit speech and in doing so prompted an increase in litigation among existing organized interests and the development of new organized interests in response to the legal uncertainties associated with the Internet.

Technological changes and developments in communications "have profound social and political consequences" (de Sola Pool, 1998:237). Such change often prompts new legislative activity, as legislators enact laws designed to regulate new communicative media; litigation challenging the laws often follows. Government regulation of new means of communication inevitably raises questions about the applicability of the First Amendment freedoms of speech and press to new types of technologies. As a result, the courts often bear the burden of resolving new legal questions raised by technological innovations. Given the likelihood that the courts will resolve the legal uncertainty associated with new technological developments such as the Internet, it seems probable that organized interests will increase their legal participation to facilitate outcomes beneficial to them. This article explores the proposition that a technological development such as the Internet will create legal uncertainty and prompt organized interests to facilitate the resolution of these uncertainties via legal challenges, thereby increasing their participation in sexually explicit speech litigation to advance their interests at the U.S. Supreme Court.

The Internet and Sexually Explicit Speech Regulation. In 1993, generally recognized as the point at which the Internet "goes public," traffic on the Internet expanded at a 341,634 percent annual growth rate (PBS, 2003). Governing bodies began to take advantage of the Internet in 1993; both the White House and the United Nations went online, and businesses and media began to capitalize on the Internet as well (Zakon, 2003). …