Billionaire and potential Twitter buyer Elon Musk has been making waves on the social media platform for his intense calls for less regulation of online speech. On this week’s first installment in a three-part Now & Then series on free speech, “Free Speech: The Government and Us,” Heather Cox Richardson and Joanne Freeman discussed the often-violent historical dance between federal regulations and citizen expression, from the 1798 Alien & Sedition Acts, to the post-World War I Palmer Raids, to the 1980s debate over burning the American flag. Another speech reckoning came in the mid-1990s, when the emergence of the Internet sparked a legislative conflagration over how to protect minors from harmful content.
On February 1st, 1995, Democratic Nebraska Senator J. James Exon introduced the Communications Decency Act, a plan to protect children on the unregulated new information superhighway. Under Exon’s plan, those found guilty of knowingly and unwantingly exposing others to pornography or less explicit sexual imagery would be subject to a two-year jail term and a $100,000 fine.
Exon’s language was cribbed from the Telecommunications Act of 1934, a bill designed to stop unsolicited and explicit phone calls. Exon simply changed “telephone” to “telecommunications devices” and expanded provisions against anyone who “makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication” found to be “indecent, lewd, lascivious or filthy,” while doubling the on-the-book penalties for violating the protocols.
Exon was a centrist and a former Governor of Nebraska who had been in the Senate since 1979. He was known for his critiques of federal spending and his support of the much-maligned B2 stealth bomber. He was 63 years old and openly admitted to never having used the Internet.
Exon’s legislation came amid a massive increase in online traffic. At the start of 1995, seven million Americans used dial-up Internet through providers like the fast-growing America Online (AOL), whose revenues increased from $40 million in 1993 to $375 million in 1995. Some 65,000 message boards had cropped up, although more advanced services like email and news sites were still in their infancy.
The CDA quickly came under fire from First Amendment defenders, who argued that any site could theoretically be accessed by children. In the eyes of detractors, the plan would in effect punish not only bad actors who knowingly targeted children with adult content online, but also providers who simply created the space where the predatory behavior took place.
Robert Peck, the legislative counsel for the American Civil Liberties Union, castigated the proposal in a February 8th Wall Street Journal interview: “It means nothing can be put on the Internet that is more racy than would be tolerated in the most conservative community in the U.S.,” Peck said.
Democratic Vermont Senator Pat Leahy, one of the few Washington lawmakers who used the Internet on a daily basis, came out as the most vocal critic of the CDA. In April 1995, Leahy introduced an opposing bill, which proposed empowering Attorney General Janet Reno to more aggressively use the Department of Justice to track down Internet pedophiles and limit child access to harmful content, but would avoid any sweeping regulations. President Clinton spoke out in favor of the Leahy alternative.
The Senate debated Exon’s proposal in June 1995. By this point, the CDA was co-sponsored by Indiana Republican Dan Coats and was positioned not as an independent law, but as Title V of the massive Telecommunications Act. The larger Act was primarily designed to deregulate broadband and cable laws to allow for more startups to get into the Internet, television, and phone provider space.
Exon embraced a theatrical approach to convincing Senators of the pressing importance of the CDA. He brought with him to the Senate debate a “Blue Book,” containing particularly unsavory pornographic images–including images of lewd acts with German Shepherds and that incorporated swords and burning cigarettes–and orchestrated a private viewing of its contents for his colleagues.
During the last days of debate, Exon also formed an unusual alliance with the brand-new Senate Chaplain, Presbyterian minister Lloyd John Ogilvie.
On June 12th, Ogilvie offered a particularly pointed opening prayer: “Almighty God, Lord of all life, we praise You for the advancements in computerized communications that we enjoy in our time. Sadly, however, there are those who are littering this information superhighway with obscene, indecent, and destructive pornography. Virtual but virtueless reality is projected in the most twisted, sick misuse of sexuality.”
Ogilvie ended his commentary with a last plea to Heaven: “Now, guide the Senators when they consider ways of controlling the pollution of computer communications and how to preserve one of our greatest resources: The minds of our children and the future and moral strength of our Nation. Amen.”
Two days later, after Exon dramatically re-read the Chaplain’s prayer shortly before the Senate vote, Leahy chided Ogilvie for his loss of objectivity: “I suggest to the Chaplain—who may be a very fine man, for all I know—that perhaps he should allow us to debate these issues and determine how they’ve come out and maybe pray for our guidance, but allow us to debate them.”
Leahy, whose bill would only be heard if Exon’s failed, brought with him a stack of petitions from 35,000 Internet users. “None of us is in favor of pornography,” Leahy told his colleagues. “But we can accomplish the goal of keeping pornography away from children without imposing a big new layer of government censorship and without destroying the Internet.”
Leahy’s plea failed and Exon’s theatrical presentations worked. On June 14th, 1995, the Senate voted 86-14 to pass the CDA.
When the CDA moved to the House a week after its Senate passage, Republican Speaker Newt Gingrich, often a fierce ally of social conservatives, condemned the legislation: “It is clearly a violation of free speech and it’s a violation of the right of adults to communicate with each other.”
A day after Gingrich’s criticism, on June 22nd, Exon appeared on the MacNeil/Lehrer NewsHour for a debate with the passionately anti-CDA Jerry Berman, the Director of the Center for Democracy and Technology.
Berman argued that the CDA, while ostensibly designed to protect children, did not distinguish age in its drafting: “it also would cover the communications between adults where they might be talking about “Ulysses” or talking about rap music or having a discussion about their sexual preferences.”
Exon in turn accused Berman of “hiding behind the old constitutional protection once again that simply says anything can go and you dare not do anything about it because you’re going to run afoul of the Constitution.”
He also suggested that Berman had perverted the founders’ First Amendment aims, saying, “Jerry goes back to the old idea that I think is kind of foreign that Thomas Jefferson and all of the good people who wrote the Constitution worked overnight and planned and plotted to make sure that the Constitution protected the most gross pornographers, pedophiles, those who are trying to lure children today.”
The House heard the pushback of civil libertarians. Democratic Oregon Representative Ron Wyden and Republican Californian Christopher Cox passed a bill in August that protected online service providers from any prosecution resulting from the CDA. The larger bill, however, passed the House with these partial safeguards, dubbed Section 230, in place.
In December 1995, as the Telecommunications Act–with the CDA firmly entrenched–headed toward final passage and President Clinton’s pen, several hundred Internet freedom activists rallied against the bill in San Francisco’s South Park area, then known colloquially as “Multimedia Gulch.”
Attendees of the event, which was sponsored by the tech magazine WIRED and the Electronic Frontier Foundation, carried signs reading “Uncle Sam Stay Out of My Home Page,” “Cyber Rights Now,” and “Save the First Amendment.”
At the protest, WIRED author and free speech activist Howard Rheingold echoed Berman’s concerns about the sweeping nature of the CDA: “This is not about protecting children. This is about a small extremist minority who would like to seize power.”
Clinton signed the Telecommunications Act on February 8th, 1996, making no mention of the CDA during his star-studded signing ceremony, which included the spectacle of comedian Lily Tomlin reprising her 1970s Saturday Night Live character Ernestine, a beleaguered switchboard operator, in helping Clinton and Vice President Al Gore connect via a video call interface to high school students.
Further protests immediately followed the signing. On the same day as the ceremony, former Grateful Dead lyricist John Perry Barlow authored “A Declaration of Cyberspace Independence,” in which he attacked online regulators as backward-looking buffoons: “Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world.”
Concurrently, the aforementioned Electronic Frontier Foundation spearheaded a “Great Web Blackout,” in which 1,500 high-profile websites turned their backgrounds black. New York Congressman Jerry Nadler, another fierce opponent of the CDA, adopted the background for his official House site in solidarity.
The CDA controversy did not end in 1996. Key portions of the CDA would be struck down by the Supreme Court in high-profile cases over the two years following its implementation. Wyden and Cox’s Section 230 is still on the books, and in recent years has sparked spirited debate over how best to address the role of social media platforms like Twitter in fostering extremism.
Now, as Musk intensifies his free speech crusade on Twitter, the initial battle over the CDA and the role of the government in regulating online speech is beginning to reach the tense climate of the mid-1990s.
For more on the 1990s battle over Internet regulation, read Federal Communication Commission attorney Robert Cannon’s 1996 FCC Law Journal article “The Legislative History of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway” and political journalist Charles S. Clark’s 1995 CQ Researcher explainer “Regulating the Internet.”
And head to the Twitter account of author and Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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