ical censorship. The prediction almost came true in 1996 with the CDA law. The Supreme Court gave further stimulation to the CDA law by using pervasiveness as a rationale for censorship of non-scarce cable television in its Denver Area Educational Telecommunications Consortium v. FCC decision.The Court declared that the Net is not pervasive in its Reno v. ACLU opinion. Though [indecent] material is widely available, users rarely encounter such content accidentally The existence of warning screens and document descriptions dictates that the odds are slim that a user would enter a sexually explicit site by accident. Unlike radio and television, use of the Net requires a series of affirmative steps more deliberate and directed than merely turning a dial. Using the word invasive instead of Pacificas pervasive, the Court concluded: The Internet is not as invasive as radio or television. The Internet can hardly be considered a scarce expressive commodity. It provides relatively unlimited, low-cost capacity for communications of all kinds. Another important thing that the Courts ruling did was to make the analogy question about the Internet a little clearer. Until recently, courts analyzed new technologies by reference to older, similar ones. For example, in the last century the courts decided that the telephones legal regime could be determined by regarding it as a telegraph. The courts have done this because a strong analogy gives clear legal guidance, avoids messes, and saves time. For the last twenty-five years, the Supreme Court has departed from the analogy solution where new media are concerned. Instead, it has taken the view that for freedom of speech purposes, every new medium is unique and presents particular problems. At the same time, it has issued decisions that are slightly confusing, from Pacifica through last years Denver, saying that an analogy isnt necessary. This insistence by the Court that technological prec...
