The Supreme Court's decision to strike down the Communications Decency Act marked an important victory in the digital war for free speech. But the $300 billion-plus tobacco settlement may give censors a back door to more government control of the Internet.
When the high court overturned the CDA in June, netizens across the country and around the globe celebrated. Unfettered speech had always been reality on the radically decentralized Internet. The court enshrined that reality in law.
"The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship," the court wrote.
But cyberwarriors shouldn't rest on their laurels for long. Less than a week before the court's ruling, cigarette companies and states' attorneys general made another decision. Theirs doesn't carry the force of law—yet -but it does represent the opening bid in an auction for the rights of companies and consumers.
If approved, the $368 billion tobacco deal would have the nation's largest cigarette rollers bow to all sorts of restrictions on their speech. Under the settlement, people and cartoons could not be shown in ads; any tobacco ads that might end up in the hands of children could only use black-on-white text; and tobacco- related billboards, hats and race cars would be scrapped altogether.
And, according to the agreement, "The new regime would . . . prohibit tobacco product advertising on the Internet unless designed to be inaccessible in or from the United States."
If the settlement becomes law, it will set a disturbing precedent for restricting all forms of online speech, commercial and otherwise.
The defeat of the CDA hasn't slowed down the censors. Anti-porn crusaders were writing new laws restricting online speech even before the act was struck down. And lawmakers seeking to regulate less-protected forms of speech, such as advertising, haven't given the court's ruling a second thought. Minnesota recently passed a law prohibiting wine sales over the Internet, declaring: "No shipper located outside Minnesota may advertise interstate reciprocal wine shipments in Minnesota."
But information, including advertising, is accessible on the Net from almost anywhere in the world. The tobacco agreement "could cause a lot of general problems for cigarette companies, because if they want to advertise where it's legal, they can't," says Eugene Volokh, a law professor at the University of California at Los Angeles who studies speech on the Internet.
Conventional online wisdom says that the Internet interprets censorship as an error and routes around it. But Volokh argues that new regulations on speech would be "too enforceable…. Restrictions on advertising are enforced relatively more easily than other restrictions on speech because advertisers have a fixed abode."
The largest problem with such a rule may be the message it sends to other countries, Volokh says. Other nations will be tempted to imitate these restrictions or make them tougher. And any company with a global commercial presence would have to limit its online presence to what is allowed by the most oppressive country it does business in. (For instance, one of the largest emerging markets these days is China.)
The demise of the CDA bolsters the Internet's promise as a safe haven for the free exchange of ideas. But a creeping array of regulations and proposals suggests this promise may be too good to be true.
This article appeared as a guest editorial in Investors Business Daily, August 22, 1997.