survival with respect to broadcasting, the Court’s decision in squarely foreclosed Reno v. ACLU any possibility that rationales might be extended to the Internet. As the Court noted, Pacifica’s Internet is not as as radio or television. The District Court specifically found that “the ‘invasive’ over the Internet do not an individual’s home or appear on one’s ‘[c]ommunications “invade” computer screen unbidden. Users seldom encounter content accident.”’” The Court further “by noted that it had rejected a similar argument in in Sable Communications of Cal., Inc. v. FCC, which the government had invoked to justify a statutory prohibition of indecent Pacifica messages. The Court noted that had distinguished Reno Sable Pacifica’s “‘empathically narrow holding’” by noting that dial-it medium requires the listener to take affirmative “‘the steps to receive the communication,’” and are generally preceded by warnings, which made it less likely that the recipient would be taken by surprise. The further concluded that absent the applicability of the rationales, any Pacifica restrictions must be tailored” to the harm if it is to survive constitutional scrutiny. The “narrowly existence of software allowing parents have the ability to screen out unwanted content vitiated any claim that the ban was narrowly tailored. In such a world, concerns about the invasiveness and accessibility seem singularly misplaced. Following such a categorical rejection, it is hard to see how can serve as a basis Pacifica for subjecting the Internet to a lower level of First Amendment scrutiny. reasoning Pacifica’s thus suggests that the Internet will be governed by the baseline level of First Amendment protection associated with newspapers, under which the intermediary’s editorial discretion takes primacy. * * *
survival with respect to broadcasting, the Court’s decision in Reno v. ACLU squarely foreclosed any possibility that Pacifica’s rationales might be extended to the Internet. As the Court noted, “the Internet is not as ‘invasive’ as radio or television. The District Court specifically found that ‘[c]ommunications over the Internet do not “invade” an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content “by accident.”’” The Court further noted that it had rejected a similar argument in Sable Communications of Cal., Inc. v. FCC, in which the government had invoked Pacifica to justify a statutory prohibition of indecent messages. The Reno Court noted that Sable had distinguished Pacifica’s “‘empathically narrow holding’” by noting that “‘the dial-it medium requires the listener to take affirmative steps to receive the communication,’” and are generally preceded by warnings, which made it less likely that the recipient would be taken by surprise. The further concluded that absent the applicability of the Pacifica rationales, any restrictions must be “narrowly tailored” to the harm if it is to survive constitutional scrutiny. The existence of software allowing parents have the ability to screen out unwanted content vitiated any claim that the ban was narrowly tailored. In such a world, concerns about the invasiveness and accessibility seem singularly misplaced. Following such a categorical rejection, it is hard to see how Pacifica can serve as a basis for subjecting the Internet to a lower level of First Amendment scrutiny. Pacifica’s reasoning thus suggests that the Internet will be governed by the baseline level of First Amendment protection associated with newspapers, under which the intermediary’s editorial discretion takes primacy. * * *
Yoo%20SSRN%20draft%209-3-09.docx