Joseph Tuman serves as principal author of NCA Supreme Court Amicus Brief

On March 19, the U.S. Supreme Court heard oral arguments in the challenge to the Communications Decency Act (CDA) by the American Civil Liberties Union and the American Library Association. A friend-of-the-Court brief from NCA was part of the proceedings. While several NCA members worked on the brief, most especially Dale Herbeck, Boston College, and Bruce Gronbeck, University of Iowa, the principal author was Joseph Tuman, San Francisco State University.

Joe Tuman has long been interested in freedom of expression in a technological age. He became interested in freedom of expression while studying for a law degree at the University of California’s Bolt Hall School of Law, and he continued that interest as an instructor and forensics coach at the University of California, Berkeley. In fact, he moved to San Francisco State to take a tenure track position that included coaching forensics because it would allow him to pursue his interests in freedom of expression through teaching courses originated by Nancy McDermid, a long-time faculty member and dean at that institution.

As a San Francisco State faculty member, Tuman said that he "agitated" for increased access to technology for students and faculty, not just because it was the "new thing" that promised to make teaching and research easier, but because he was concerned that students needed to understand how these technologies would affect their lives. As a lawyer, Tuman realized that any medium, such as the Internet, that potentially involved commerce would be subject to regulation by Congress, and so he was especially interested in the Communications Decency Act and tracked it as it proceeded through the legislative process.

Tuman’s original draft contained two major arguments: first, that the CDA was inappropriately based on broadcast law, while the Internet is not a broadcast medium; and second, that applying the "community standards" test that the Court had previously approved for judging material to be obscene was not appropriate for the Internet, because the definition of "community" on the Internet did not fit with the traditional definitions of a geographically-based "community." After consultation with other NCA members, as well as with Raphael Winick, NCA’s pro bono legal counsel, it was decided to drop the "community standards" argument as not falling as clearly within NCA’s established expertise (but, a reference to that argument did make it into the final draft: "…discourse itself creates community though not in the traditional sense of communities created by geographic boundaries. Instead, the ebb and flow of discourse allows Internet users to form communities around common interests, interact while they find such interaction to be valuable, and then disperse.").

Tuman drew many of his ideas for the brief from his new book, Freedom of Speech in the Marketplace of Ideas (St. Martin’s Press, 1997; co-authored with Douglas Fraleigh, California State University, Fresno). In fact, the "marketplace of ideas" metaphor originated with Justice Oliver Wendell Holmes and refers to freedom of expression as the ability to offer a large number of new ideas, which are then tested by the potential "consumers" of those ideas and are then accepted or discarded. The Internet, Tuman, argued acts very much along the lines anticipated by the marketplace metaphor.

In addition, the brief also argued that the Internet provides for the kind of give-and-take that the country’s founders envisioned when they included the First Amendment in the Constitution. If someone finds material on the Internet that one considers obscene, there is typically a way of indicating that finding to the author of that material. In turn, the author may respond, and dialogue may ensue. This argument in particular is consistent with NCA’s Credo on Free and Responsible Use of the Internet, which the Legislative Council adopted in 1994 and which is reprinted on this page.

While he firmly believes the NCA brief’s conclusion that the CDA is unconstitutional, Tuman is also concerned about the CDA’s avowed purpose, which was to protect minors from access to obscene material. "Our brief does a good job of arguing why the CDA is not consistent with the First Amendment," he said. "Unfortunately, we can’t at this point offer a better solution; I wish that we could."

Tuman often gets to take his ideas into the community. He has served as an expert witness for trials involving a freedom of expression component, and he is quoted in the Bay Area media on those same issues. He runs a thriving consulting practice from his days as a part-time instructor, and through that practice he has made some contacts in France. He hopes to be able to teach a course in Paris this fall during his planned sabbatical leave from San Francisco State, as he is convinced that the First Amendment has been at the core of the success of the American system of democracy from its very beginning.