Cyberspace and the Constitution

Cyberspace and the Constitution

Cyberspace is a new frontier for American courts. In the past, when faced with new situations, courts have analogized older laws into the new situations. However, due to the many unique qualities of the Internet, courts have had a difficult time determining how to apply prior law in the realm of cyberspace. In the United States, the ultimate framework of our laws is the United States Constitution. The Constitution, and most especially the Bill of Rights, has entered arenas that the founders could not have imagined. Today, courts know that they must apply the constitution to cyberspace, but the question remains: how is it to be applied? The District Court in U.S. v. Pataki devised an interesting solution to the constitutional problems of cyberspace, by using the Commerce Clause in a situation where at first blush, the First Amendment would seem to be the constitutional provision to apply.

The issue in Pataki was whether a New York statute criminalizing the use of a computer to disseminate obscene material to minors was constitutional. The statute criminalized sending sexual material to minors that was "harmful to minors." The statute defined material as "harmful to minors" if it 1) Considered as a whole, appealed to the puritant interest in sex of minors; 2) Was patently offensive to prevailing adult community standards with respect to what is suitable material to minors; and 3) Considered as a whole, lacks serious literary, artistic, political, and scientific value for minors. Essentially, this is the Miller obscenity test, devised by the Supreme Court, applied to minors.

Although the statute was modeled after the Miller test, it still faces First Amendment concerns. First, what are "pr...

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...upply this, since they would run afoul of the Commerce Clause, as did New York in Pataki. Thus, Congress must provide the legislation. Furthermore, since the Internet is international, this legislation must stem from international treaties.

This is a lot to ask, and many people are concerned about "Big Brother" controlling our communications, and they argue that the Internet should be free to regulate itself. However, there must be regulation on the Internet. The Internet allows the freest mode of expression in human history. Anyone is a publisher. With this great freedom, comes great responsibility. The framers of the Constitution never imagined the Internet, but they did imagine principles which should continue to guide us into the electronic frontier. Principles of the Commerce Clause and the First Amendment must continue to apply in the realm of cyberspace.