Academic journal article Law and Contemporary Problems

The First Amendment and Cyberspace: The Clinton Years

Academic journal article Law and Contemporary Problems

The First Amendment and Cyberspace: The Clinton Years

Article excerpt

JAMES BOYLE [*]

I

INTRODUCTION

There are many things one could say about the Clinton Administration's effect on the Constitution. I am tempted to comment generally about the Clinton Administration's concern for constitutional values, but Dean Nichol has already captured many of my feelings on that subject. [1] In any event, my assigned topic was a narrower one: the Clinton Administration's impact on speech in cyberspace. I take as my starting point the bracing skepticism of Professor Volokh's paper on the same subject, a subject about which he has considerable doubt:

I was asked to participate in this symposium by discussing the Clinton Administration and free speech in cyberspace, and I will do so. But inquiring into the Clinton Administration's role in cyberspace speech regulation may be asking the wrong question. I'm not sure that particular Administrations generally have much of a direct impact on free speech law (as opposed to the indirect impact, often not seen for decades, flowing from the decisions of the judges they appoint). The Clinton Administration, for instance, has mostly confronted free speech law incidentally and sporadically; the high-profile direct attempts to seriously restrict speech, such as the [Communications Decency Act], have largely come from Congress.

Moreover, the words "in cyberspace" in the phrase "restrictions on free speech in cyberspace" are generally, in my view, not terribly significant; the medium by and large does not and should not affect the protection--or lack of protection-given to the content. [2]

I am going to disagree, at least in emphasis, with most of these claims. In fact, there are interesting questions to be asked about the Clinton Administration's role in cyberspace speech regulation. Indeed, the actions of this Administration have had and will continue to have a considerable impact on both speech regulation in cyberspace, and on the law of the First Amendment generally. Finally, although Professor Volokh makes the valid point that discussions of free speech should not be medium-specific, certain particular features of cyberspace in general, and of the Clinton Administration's "plan" for cyberspace in particular, are likely to force the courts to confront a series of tensions and omissions in First Amendment doctrine. Admittedly, the Clinton Administration's role of "making" free speech law in some of these cases is similar to the Nixon Administration's role in "making" law on executive privilege, [3] another area in which the current Administration has excelled. [4] However, both in terms of speech regulation and in terms of providing raw material for the legal controversies that shape the law of the First Amendment, the Clinton Administration's legacy is considerable, and nowhere more than in cyberspace. [5]

II

A WORLD WITHOUT SULLIVAN

The most visible examples of the Clinton Administration's role in cyber-speech regulation are the Communications Decency Act ("CDA"), [6] which was struck down by unanimous vote of the Supreme Court in 1997, [7] and the Child Online Protection Act ("COPA"), [8] which is now before the courts. [9] Both of these pieces of legislation were supported by the Clinton Administration even though the CDA had so many First Amendment problems it read like a law school exam question, and the COPA, while much better drafted, is hardly solicitous of speech on the Internet. [10] In my view, Professor Volokh is a little quick to let the Clinton Administration off the hook for its role in these bills; others have certainly been more critical. [11] Although the main impetus for the legislation came from the Congress, not from the Administration, the President publicly supported and signed both bills without any apparent qualms, which is itself quite striking. Even if one believes strongly in the desirability and constitutiona lity of the regulation of minors' online access to indecent material, both prudence and institutional responsibility argue for some level of constitutional scrutiny before the President signs a particular bill; under normal-science constitutional analysis, the CDA was so palpably unconstitutional that the Clinton Administration garners little credit on either front. …

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