The Spectre of a 'Wired' Nation: Denver Area Educational Telecommunications Consortium v. FCC and First Amendment Analysis in Cyberspace

Abstract

The rapid convergence of media technologies and their continued differential regulation has caused no shortage of confusion in First Amendment jurisprudence. This confusion threatens to continue as courts begin to work out the contours of cyberspace regulation. Attempting to grapple with this complexity, the Note first examines the Supreme Court's 1996 case, Denver Area Educational Telecommunications Consortium, Inc. v. FCC, which struck down some restrictions on indecent sexually explicit programming on cable television while upholding others. Owing to the fractured nature of the decision, the Note examines various First Amendment fault lines in each of the six opinions in trying to divine the case's significance. Having worked out a rough account of the Justices' positions on indecency regulation in the cable realm, the Note then examines how those positions affect the Court's approach to cyberspace regulation like the Communications Decency Act and regulation that should be treated as a cyberspace restriction -- the V-chip. It contends that the CDA should properly be found unconstitutional (as it was published before the Court's decision in Reno v. ACLU), but that V-chip restrictions, even with mandatory labeling elements, should be found constitutional. In particular, the Note argues for a more precise reconceptualization of the compelling government interest in cases such as these as parental control rather than the generic protection of children, and also supports the idea that a useful analogy can be made between zoning in real property law and the mandatory erection of certain barriers in cyberspace that attempt to prevent children from accessing adult materials. The Note concludes by examining briefly the importance of architectural power in cyberspace, and noting that there is a proper role for government in assuring that core values are properly served in the medium from both governmental and private incursions.