Can the Law Keep Up With the Internet?

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Sonari GLINTON: Let’s go back to 1996. Tell me what you you know, Seinfeld friends, The Simpsons were still good. And the World Wide Web was the Wild, Wild West. There were still great fortunes to be made and a lot of freedom, maybe too much.

Speaker 2: Congress was very worried about one thing.

Sonari GLINTON: That’s Jared Schroeder. He’s a professor at Southern Methodist University in Dallas, SMU. He studies free expression and emerging technologies.

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Speaker 2: There’s a famous Time magazine cover, and it’s got the words and big letters cyber for.

Sonari GLINTON: This new thing. The World Wide Web was open and free for the first time. Nearly everyone had knowledge at their fingertips and the freedom to connect with people all over the world. But that freedom also meant easy access to obscene and indecent content to anyone with internet access, including children.

Speaker 2: The very same stuff I try to keep my kids from not saying today. Right 25 years later.

Sonari GLINTON: Congress’s solution the Communications Decency Act, or CDA, which passed in 1996. One of the goals of the law was to keep children from watching sexually explicit content on the web.

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Speaker 2: The law was meant to try to limit the ability of children to have access to indecent and obscene content. If something is obscene, is not protected by the First Amendment and the government can regulate it all at once. But if it’s indecent but not obscene, the government generally cannot regulate it. It is protected by the First Amendment. So putting indecent limitations on indecent content into the law kind of triggered a First Amendment problem.

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Sonari GLINTON: So the American Civil Liberties Union quickly sued the government in the case, Reno versus the ACLU. The main argument was that censorship provisions in the Communications Decency Act were unconstitutional because they criminalize expression protected by the First Amendment. The ACLU argued that terms like indecency were too vague. The ACLU then did something unusual for the time. They created a website where they posted, quote, indecent, unquote content, including the comedian George Carlin’s famous seven words You Can’t Say on TV.

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Speaker 3: There are words that you can say, no problem. Topography. No one has ever gone to jail for screaming topography. But there are some.

Speaker 2: Words that you can go to jail for. There are some words that we just have decided we will not say.

Sonari GLINTON: All the time. Then in 1997, the Supreme Court heard the case and ruled in favor of the ACLU. Not only did the ACLU win, but the Supreme Court went further than simply striking down the Communications Decency Act.

Speaker 2: They made Reno into the first decision where the Supreme Court identified what the Internet is, how they understand it. When they looked at the Internet. They said, this is something really special.

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Sonari GLINTON: To the justices. The Internet represented something that was extremely important to democracy, accessibility.

Speaker 2: They looked at the Internet and they said, this is a new life, a new world, a new period for democracy.

Sonari GLINTON: My, how things have changed as democracy really flourished, or has the Internet become so unruly that it needs to be reined in? Today on the show, the groundbreaking case that gave us the Internet we have today and what’s next for it? I’m Sonari GLINTON, filling in for Lizzie O’Leary. And this is what next TBD, a show about technology, power and how the future will be determined. Stick around.

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Sonari GLINTON: Not when the Internet was new. Politicians had questions in particular, what is this thing and can we and should we regulate it? The first conflicts came trying to figure out what type of protection online speech should get. Should it be like print media, which has a lot of protections for free speech? Or should it be more like broadcast regulation where the Federal Communications Commission determines what can and what can’t be said on public airwaves? How did the court see the Internet different from the the established medias like radio and TV?

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Speaker 2: They had the option of going with one of two models. There’s almost like a fork in the road here. They could have gone with the types of protection that have traditionally been extended to like newspapers and political speech and that sort of thing. Or they could go down the broadcast regulation route. The government argued it should be like radio, that the internet was like radio.

Speaker 2: The reason why broadcast has been regulated in a different way than all other media is because of the unique nature of broadcast. It is on the public airwaves, and those airwaves are shared. It’s almost like a national park, right? The government cares for the space, the broadcast, the public airwaves, and then we license holders use it. And because the FCC had to be created to manage the license holders and to manage this shared limited resource. The government got involved. And because of that, the Supreme Court has ruled that the government can limit indecent content on the public airwaves. The government wanted that. They used the precedent from that case to say, look, do this. And Reno to the Supreme Court was not buying. And they went the other direction.

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Sonari GLINTON: What would the Internet look like? If this law hadn’t been struck, then.

Speaker 2: Basically we would not have an Internet we have today. It would be a very it would be a very limited, rudimentary version of what we experience would probably still be in a 1990s type Internet. It would not be profitable. It would not be a good idea to go into business doing doing what Facebook or matter does or what what you know, Google’s ownership of YouTube does it just it would work. The government could just step in what makes something indecent. It’s just not terribly clear. And the wording in the law was not terribly clear. And so with, you know, what the president wanted in this presidential administration, like, we think your comments about our administration are indecent.

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Speaker 2: Let’s we’re going to we’re going to shut this down. We’re going to limit the this it would give the power to limit all kinds of government, the power to get into that open space that the Internet created, this virtual open space and start picking winners and losers, start affecting what ideas can go through and which ones don’t. Reno has said no hands off government generally almost all the time. Hands off. You can’t you can’t get involved.

Sonari GLINTON: Now, when the CDA was written, lawmakers were afraid of how huge the Internet would get. I don’t know of a teenager who hasn’t seen something genuinely obscene on the Internet. Could there have been an in between?

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Speaker 2: I mean, that’s part of the problem. And it’s one of the reasons I think the Supreme Court was so definitive in what they said is how do you have an in-between law that gives the government power to limit some expression but not others? Because it’s like the door. It’s like the door is either open or not. If it just block obscenity, for instance, if they dropped indecency, well, that wouldn’t protect I wouldn’t stop very much of what they were trying to stop because most of the content they were concerned about was indecent but not obscene.

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Sonari GLINTON: So what has Reno versus ACLU done to shape how we know it today? I mean, is this where I can place the blame?

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Speaker 2: I don’t think you can blame Reno on this. It’s 25 years old. And it’s not just the years. If you think about how quickly the technology has changed in those 25 years, it’s almost different than any other era of time. If you think about how media have evolved. It’s moved so much faster. I remember and I’m not, you know, terribly old. I remember a life without the Internet. Right. Like it’s been so fast, such a quick development. Reno has aged quite a bit in the facts of the case because it really was a very different Internet back then. No Wi-Fi, no mobile devices or smartphones, no social media. But at the same time, over those 25 years, it has remained a very relevant tool when it comes to saying we have a lot of problems here, but government intervention in those problems is not on the table as a solution to those problems.

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Speaker 2: So it kind of sets the boundaries for what like for the discussion. Like these are the ground rules. Like when you open a new board game, you’re like, okay, how does this game work? If you open up the ground rules for the game called How do we regulate the Internet? And you open up the box and you take out the directions to figure out how to play the game. The first line directions is Reno versus ACLU says the government cannot intervene.

Sonari GLINTON: You know, I wonder, how is the the progress of technology in that 30 year space, give or take, changed speech on the Internet?

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Speaker 2: I would just expand your question, like, how has it changed democracy? The Internet has changed the way we understand the world because it has changed our information sources. So we used to share generally, you know, a newspaper in a couple of broadcast reports of what was going on. Everybody pretty much shared a basic set of facts. And then we disagreed or had opinions about those facts.

Speaker 2: Now, because the Internet is such a big space, we can have separate realities that exist alongside each other. And that’s a really big difference for democracy. The Supreme Court got it wrong in a sense that the Internet is not exactly a big open space. Right. It’s like when I go on the Internet, I don’t I feel like they picture just a giant marketplace of ideas, like a giant cobblestone European marketplace of epic proportions, which is romanticized, too.

Speaker 2: But really, it’s not like that, right? If you go into the Internet, if it were a physical structure, you don’t walk into a giant open space. You walk into a heavily divided space with just tons of rooms and dividers. And where are those dividers coming from? Well, they’re coming from algorithms that are placing us in, encouraging us toward people like us, making us more likely to only encounter ideas that reinforce. This is the echo chamber concept, right? And no one ever became more open minded when they only encountered ideas that I agree with them. There’s only one real direction you can go when you only encounter ideas that make you feel like you’re right all the time. And that’s to be more extreme, not less extreme.

Sonari GLINTON: If you’re doomscrolling or encountering fake news or scams being harassed by a trolls or being dox, you feel like the internet is the Wild West with no one in charge. And I’m wondering. Is it time to rethink that? Nobody in charge.

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Speaker 2: It is a wild west. But there are controllers. It’s just they’re not government controllers. It is Mark Zuckerberg and Metta. Right. It’s it’s Google and YouTube. It’s whoever is going to own Twitter. You know, it’s they’re the space managers of these spaces. Right. It creates a whole new problem or a whole new challenge because democratic discourse no longer occurs in public spaces like a, you know, a like a marketplace of ideas, like a public park or something like that, or public streets where you would hold a a protest. It happens in a privately owned space.

Speaker 2: Since the January six riot, there have been quite a bit of changes by those types of controllers. I do think we could agree that there’s been a more active role, whether it’s been effective, whether it’s been authentic. I mean, and, you know, there has been more control by social media firms since the January 6th riot than there were before.

Speaker 2: The other option is, okay, it’s time to get some control over this thing. Who do we trust to control it? Right. Do we? We can say, well, you know, Biden’s president, we think he’s going to be great, but then the next administration or the previous like it’s going to change. We don’t want an Internet that our free speech changes every two years or every four years with each election cycle either. Right. And so RINO as a strong precedent for 25 years and however long it lasts, remains a strong statement that, look, it doesn’t matter who president is, who’s in Congress. The Internet is going to be protected from the government stepping in and saying, you you can’t say this or you know this, this content is not okay.

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Sonari GLINTON: He said that January six brought more order to the Internet. How so?

Speaker 2: It led to social media firms being more aggressive and how they police their spaces. Right. We have seen them become more strident in blocking speakers in groups. We’ve seen them clarify their policies and execute more. I don’t have a Facebook account, but my wife does. And she has noticed that Facebook has been. Blocking more things than it probably should. The A.I. that they’ve set up is blocking things that probably are not a problem, like they become just more aggressive. And in trying to limit speech, that’s harassing speech, things that a lot of people would say are problems on the Internet. Harassing speech, hate speech, extreme speech.

Speaker 2: Ever since January six, there’s been. But I’m not saying they fixed it right. It’s been inconsistent. It’s been there’s a lot of experimentation going on. There’s not like a a textbook or a rulebook on how to do this yet. And I don’t think that the social media firms are all there keeping their business interests in mind, which I don’t want to sound like that’s a. I’d like. They shouldn’t be, but they’re not all genuinely trying to create a great space for democratic discourse. That’s part of the problem, is you have a group of corporations that are and I’m not. That’s their nature. Corporations job is to make money in many ways, but they they’re not in the business of creating a perfect space for democratic discourse.

Sonari GLINTON: What’s the future for you now, given the implications of the fallout of January six, etc.?

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Speaker 2: Okay, so RINO is a very strong precedent. It’s almost a unanimous decision and so it’s really been very strong. It’s been cited in over a thousand state and federal court cases in the past 25 years. So about 40 times a year courts have said, why have we made this reasoning? Reno versus the ACLU? And the Supreme Court itself has cited it on average once the term, once a year, which is like, well, it’s just once, but like how many cases are relevant to online free speech every term? Like one or two. I mean, so it’s it’s basically the case.

Sonari GLINTON: But with a very different makeup and a conservative majority in the Supreme Court. Jared says that could change.

Speaker 2: But there is some pessimism that RINO will not persist as a strong precedent. I think it’s very unlikely the Supreme Court will just say, Oh hell no, and just destroy it. Right. I think it’s more likely that it will die in pieces. The concern is that we have the Supreme Court as a I hate to break it. Anybody who doesn’t hasn’t thought about this, but the Supreme Court is a political institution. Sometimes they are very careful and they do the whole Wizard of Oz thing and hide behind the curtain. They’re not in that phase right now. Right. They clearly are a very political institution right now.

Speaker 2: And so the concern is that RINO will be affirmed by this. If they overturn RINO, they’re there. They’re saying no to a lot more than just RINO, but they’re saying no to fundamental First Amendment principles about free expression. But there is some concern that the court will chip away at it, that they’ll say, Oh, yeah, it doesn’t apply to this, or they’ll allow lower court decisions that are clearly, clearly in conflict with the RINO decision to stand. They won’t hear the case. They’ll just leave it alone and let it stand. That’s the concern that the future RINO is one that it would be kind of chipped away at that would become weaker over the years. And I mean, I’m saying that’s a bad thing. It’s possible some of the folks listening will say, you know, it’s about damn time, let’s fix this.

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Sonari GLINTON: As I look back at the Internet changing in the past between, you know, 25 years since RINO. There are all kinds of new technologies that are out there that we may not have thought about, like virtual reality. What are the effects of Reno on virtual reality, and are people trying to rein in obscenity in something that’s fast growing like the metaverse?

Speaker 2: We stopped visiting the Internet and we start living in the Internet. We start living in virtual worlds. The very problems we’re having already that people say we should fix this, something should be done about this. The metaverse poses the challenge makes multiplies those challenges. Right. So it’s not just that we have bots taking part in human discourse in ways that we, you know, spreading falsity, having, you know, the agendas that were programmed into them. It’s not just that we have them like we do in Twitter or anywhere else, that bots are powerful. It’s that the bot turns into a someone that looks like a real person in the metaverse, that when they’re telling you this, they look believable. When they tell you this, they they look like someone. And when you tell them you don’t believe them, it looks like it hurts.

Speaker 2: The metaverse makes this, you know, real, more real. It makes it makes the falsities more believable because they look like they’re being delivered by real people versus in an immersive sense, too, versus opening up Twitter and be like, is this a bot? I don’t know. All the challenges we have now should be multiplied by the metaverse. But Reno remains the directions to the boardgame, saying, If you want to fix these problems, the one thing you cannot do is to give the government the power to say what ideas are okay and what ideas are not.

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Sonari GLINTON: It looks like we’re going to be dealing with the ramifications of this decision for a very long time.

Speaker 2: RINO is just the extension of a long set of First Amendment decisions, right? It’s the it’s the case that took the First Amendment as the court has understood it and put it in the Internet. It’s the bridge from the main line of free expression precedents. It’s the bridge from that to the Internet. Right? It’s the case that says, okay, these things apply to the Internet. And so if you’re like, oh, let’s just get rid of Reno, well, you’re also going to have to break all these other things that were behind it, since we think we figure part of something out, we get a new technology or a new innovation like like the metaverse. But we’ll definitely be dealing with these questions for a very long time.

Sonari GLINTON: Jared Schroeder, thank you so much for taking the time to talk to us. I appreciate it.

Speaker 2: Thank you. It was so interesting. It’s just wonderful to talk about it.

Sonari GLINTON: Jared Schroeder studies free expression and emerging technologies at SMU. That’s it for the show today. TBD is produced by Evan Campbell. Our show is edited by Tori Bash. Joanne Levine is the executive producer for what next? Alicia montgomery is Vice President for audio at Slate. TBD is part of the larger what next family. TBD is also a part of Future Tense, a partnership of Slate, Arizona State University and New America. I’m Sonari GLINTON, filling in for Lizzie O’Leary. Thank you for listening.