The Social Construction of the American Democracy: A Study
Through a CMM Lens
Chelsea Johnson
Johns2cc@dukes.jmu.edu
James Madison University
SCOM 432 Final Paper
Dr. Leppington
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Abstract
The United States Constitution establishes three separate branches of the
government; the executive, the legislative, and the judicial. This paper will undertake to
look at the relationship between the judiciary (specifically the U.S. Supreme Court) and
the legislative (specifically Congress); and particularly the focus will be on the inherent
conflict between the two branches of government. A series of three different bill’s
Congress put forth and the rejection of two of them in Supreme Court cases will be used
to display the “back and forth” process to find a resolution. Reno v. American Civil
Liberties Union (Dealing with Congress’s first bill the Communications Decency Act of
1996) is the first case to be taken; then Congress revises it and comes back with the
Children’s Online Protection Act (COPA) in Ashcroft vs. American Civil Liberties
Union. Following the Supreme Court finding that act unconstitutional Congress again
comes back and proposes another revision names the Children’s Internet Protection Act,
which the court finally upholds in United States vs. American Library Association. This
“back and forth” process between the Supreme Court and Congress begs the question of
how is our democracy socially constructed? In addition, how is this conflict an integral
part of the social construction of our social reality? Lastly, along with these questions I
will establish through example how the system self-organizes. This paper will provide
not only the answers to the previously mentioned questions, but will also expand upon
the process between Congress and the Supreme Court.
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Introduction and Historical Background
Beginning from the drafting and ratification of the United States Constitution
there has been an inherent conflict relationship between the judicial and legislative
branches of the government. In Article I of the U.S. Constitution the Framers established
the legislative branch (Congress), as well as the Judicial Branch in Article III of the
Constitution. In the each of these Articles it was laid out the rights and boundaries for
each branch. In order to ensure this system of boundaries, a “checks and balances”
system was put into place. One must remember the time in which the U.S. Constitution
was written, it was one where there was a fear of a strong centralized government, and
these checks each branch has on one another was and continues to be of significant
importance.
This examination will look specifically at a “back and forth” conversation
between the Judicial Branch (for the purpose of this case The Supreme Court) and the
Congress. This interaction and processing of one another’s hierarchy’s of meaning will
be shown through the process of three acts of Congress and the subsequent Supreme
Court cases that go along with them either accepting it as constitutional or declaring it to
be unconstitutional. It is the examination of this process that will illuminate how
democracy is socially constructed as well as how this conflict relationship is such an
integral part of our social reality.
Necessary to understanding the beginnings of the relationship between Congress
and the Courts, one can refer to Alexander Hamilton’s Federalist 78, published in March
of 1788 (just before the Constitution was ratified in June of 1788). Federalist 78 was
mainly focused on the judicial branch, pointing out that the Framers at this time viewed
the courts as the least powerful branch of government established; essentially claiming
that they had no “real” power. Hamilton specifically says “…the Legislature not only
commands the purse, but prescribes the rules by which the duties and rights of every
citizen are to be regulated. The Judiciary on the contrary, has no influence over either the
sword or the purse, no direction either of the strength or of the wealth of the society and
can take no active resolution…It may truly be said to have neither Force nor Will, but
merely judgment…” (Hamilton, 1788, pg. 472). It is interpreted from this that there was
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little confidence in the court system as actually being an equal member of the three
branches of government. Yet, the process of which is being presented in this study will
give insight into how the process changed this belief and formed the equal (if not slightly
more powerful) Supreme Court that is characteristic of the current Democracy. The
assumption of the Founding Fathers was wrong, the Court may merely have judgment but
it is the process behind the judgment and the meaning of it that creates the conflict
necessary for social construction.
The process of the “back and forth” communication between Congress and the
Court has constructed the judicial to become more equal in the system, which ultimately
wields to a stronger checks and balances system. In this system, Congress forms laws and
bills meant to be in the best interest of the citizens, yet they might not always be able to
pass the first time being proposed. By this meaning the Court must be there to not only
decide cases that come before them in terms of the Constitution, but also interpret the
federal law and ensure there is no breach of the Constitution present. This particular case
will look at three acts of Congress which are as follows: First the Communications
Decency Act of 1996 (CDA), the Child Online Protection Act in 1998 (COPA), and lastly
the Children’s Internet Protection Act in 2001 (CIPA). As well as the corresponding court
cases that arise from the acts of Congress (which together establish this episode of
communication) that are as follows: First Reno v. American Civil Liberties Union
challenging the Communications Decency Act, second comes Ashcroft v. American Civil
Liberties Union challenging Congresses next attempt, the Child Online Protection Act,
and lastly the study will look at United States v. American Library Association
challenging the Children’s Internet Protection Act.
In order to fulfill this study and understand the process that is being discussed,
one must also understand the Coordinated Management of Meaning Theory (CMM).
CMM is the process this study uses to illuminate the relationship and effects of the
relationship between Congress and the Supreme Court. CMM is a theory that views
communication as a two-sided process of coordinating actions with others as well as
making and managing meanings in relation to others. To describe the process one goes
through in constructing their social worlds CMM identifies three main aspects; first
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coherent, second coordination, and third mystery together creating story’s that create
ones social reality. The first, coherence, describes how meaning is achieved in
conversation, essentially it is in order to interpret the world and ones place in it.
Coherence can be thought of as stories and these stories can be even further broken down
into six more aspects: content, speech acts, episodes, relationships, self, and culture.
Those six aspects will be what forms’ the individuals (or in this case the governmental
parties) contextual forces and hierarchy.
Secondly, coordination adds that actions are not alone in regards to
communication; the words or actions come together to produce the patterns or stories
governing the behavior used during interactions. Coordination establishes “rules” in a
sense for the communication and it is through this coordination that when speech is
governed by different rules communication can still successfully exist. The last of the
three basic aspects that make up CMM, mystery, allows one to recognize the
“unexpressed stories,” that not everything in communication can be explained. It is
through these complex interconnected patterns of CMM that this study will show the
social construction of Democracy, as we know it today, within a limited example of the
process.
Methods and Data
The Coordinated Management of Meaning has a certain model that allows one to
clearly see all of the interconnected parts of the process working; part of this is called the
hierarchy model. Essentially this is a tool that allows one to explore the perspectives of
the other party in the conversation as well as taking a more thorough look at their parties
own perspectives and intentions. This study uses the hierarchy model along with the
serpentine model in order to portray the conversation between Congress and the Supreme
Court. The serpentine model takes the hierarchy model a step further in highlighting the
importance of the interaction and adding in some sense of time to the pattern. This
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extended model is being used because it is important in the social construction of reality
to stress the understanding of the pre-figurative forces (previous events) and their impact
to form the current episode being interpreted. Through use of the serpentine it will also
make it significantly easier to understand and follow the “back and forth” interaction
between Congress’ s Acts and the decisions issued by the Supreme Court.
The United States Congress starts off this examination and relationship, due to the
advancement of Internet technology and the greater accessibility to inappropriate material
via the Internet Congress felt it their duty to find some way of protecting the youth.
Congress’s intentions are to protect the youth of the United States from obscene materials
readily available on the Web, in Congress’s hierarchy they view it as they are culturally
obligated to protect the members of society who are largely unable to speak for
themselves. For Congress the contextual force of self portrayed is that they have been
afforded this power to pass legislation in benefit of the citizens so they feel they are going
to use it in order to protect the innocence of the youth. As a result of this necessity to
protect Congress first passes the Communications Decency Act of 1996, which is the first
utterance in the serpentine model. (Refer to Appendix for visual of the serpentine)
Congress’s primary intention was the protection of minors, yet that is not what this action
was viewed as from other parties standpoints. This law, among many other things,
“criminalized the knowing transmission of obscene or indecent messages to any recipient
under 18 years of age…that in context depicts or describes, in terms patently offensive as
measured by contemporary community standards…” (O’Brien, 2008 pg.487) Yet, the
American Civil Liberties Union does not interpret the intentions of the CDA as a means
of protection. Rather, the ACLU views this as a violation to citizen’s fundamental First
Amendment Rights. The First Amendment to the Constitution states “Congress shall
make no law respecting an establishment of religion, ...or abridging the freedom of
speech, or of the press, or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” (O’Brien, 2008 pg. 12)
As a result of the passing of the CDA, this prompts the American Civil Liberties
Union to question whether this allowed or did Congress overstep their boundaries.
Implicated in their contextual force, how dare Congress infringe on citizens fundamental
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rights to free speech. As for the culture aspect of the ACLU, as congress saw it as their
duty to protect the youth of the US, the ACLU sees it to be their obligation to protect the
fundamental freedoms afforded to every citizen. The ACLU challenged the
constitutionality of the Communications Decency Act, it is their job to fight against
restrictions on liberty and that is what they did. The lower court ruled and put a
preliminary injunction against the CDA. In response Attorney General Janet Reno, who
did not view the CDA as an infringement upon individual rights, appealed to the Supreme
Court contesting the injunction. This is the second utterance in the process; the appeal to
the Court contesting the validity of the CDA and the lower courts ruling. The episodes of
each of the players are already forming very different intentions and obligations. The
Supreme Court granted a Writ of certiorari, essentially agreeing to hear arguments for the
case Reno v. American Civil Liberties Union. If this is a valid appeal the Supreme Court
is obligated to uphold the lower courts decision. As will be noticed as the process
continues the contextual forces behind the Supreme Court will not really change. The
intentional force behind the Court is to interpret federal law and cast judgment upon those
cases that come before them. It is in the Courts culture to have a powerful sense of
morality grounded in the rule of law and enforcing the principles set forth by the
Founding Fathers in the Constitution. The episode of the Court unfolds from no longer
being the intention to solely protect individual rights, but it is also now to determine if the
Communications Decency Act infringes upon rights afforded by the Constitution or if
Congress was indeed within their boundaries of protecting the youth.
Ultimately, the Supreme Court decides to uphold the lower courts decision,
declaring the Communications Decency Act of 1996 to be invalid and an unconstitutional
infringement upon individuals’ fundamental rights in 1997. The Supreme Court is
communicating with Congress, establishing a conversation, telling them that although
their intentions of protecting the youth may be good the law was too broad and must be
revised. Congress interprets this decision as feedback that they must revise the law and
make it more narrowly tailored to block certain things on the Internet and limit it so it
does not affect all individuals’ free speech rights. As a result, Congress therefore feels
compelled to revise the act and form a new one protecting minors form materials deemed
harmful on the Internet while still remaining within the confines of the powers afforded
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to them. Congresses second attempt at regulation comes with the Child Online Protection
Act in 1998. This act was never actually signed into law it remained just an act of
Congress. Similar to the Communications Decency Act of 1996, COPA “…prohibited
any person from knowingly and with knowledge of the character of the material, in
interstate commerce or foreign commerce by means of the World Wide Web, making any
communication for commercial purposes that is available to any minor and that includes
any material that is harmful to minors.” (O’Brien, 2008 pg. 635) This new act limited the
scope from the previous Communications Decency Act by one only applying it to
materials displayed over the web. Second, it covers only communications made for
commercial purposes and lastly COPA only restricts the category of “material harmful to
minors,” a more narrow category than the CDA previously had. Congress listened to the
feedback given the Court in issuing the Child Online Protection Act.
The American Civil Liberties Union again steps in with the same contextual
forces of protecting individuals First Amendment rights and claims this revision
continues to violate those rights. Due to the prefigurative forces being illustrated by the
process taking place we can observe Congress’s intentions remain to be to protect the
youth from obscene materials on the Internet with only slight changes, while the reasons
necessary for the District Court and circumstances are continually changing. By this it is
meant that the circumstances surrounding how a case is brought up to the courts changes,
yet for Congress the intention remains to protect minors; yet they cannot seem to do so in
a manner consistent with what the Supreme Court deems within the limits of the
Constitution. The District Court and appellate court did not agree with Congress, and
again a conflict situation emerges between and act passed by Congress and the judicial
branch. The appellate court affirmed the lower court decision and found that COPA was
not narrowly tailored and was also not the least restrictive means of preventing minors
from accessing harmful materials on the Internet. The Court put a preliminary injunction
on the Act so that it could not be signed into law. If the passage of COPA counts as a
violation of ones First Amendment Free Speech then there is an obligation to appeal to
the Supreme Court in order to place a permanent injunction on the act. This is shown
through the case Ashcroft v. American Civil Liberties Union decided in June of 2004.
The contextual forces that illuminate the intentions of the Supreme Court remain the
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same, to uphold their power as a spokesperson for justice in terms of the Constitution.
The Supreme Court decides based on their hierarchy to place a permanent injunction
upon the Child Online Protection Act, declaring it to be unconstitutional under First
Amendment protection claims.
The “back and forth” process continues to illuminate the conflict relationship
between these two branches of government and how over time we can see the social
construction that is taking place to find a law that satisfies the intentions of both Congress
and the Supreme Court. As previously shown, Congress interprets the Supreme Court
decision in Ashcroft v. ACLU as feedback in order to revise and form another law that
satisfies the boundaries. Since Congress views this part of the “conversation” as
feedback, they are obligated to then make a more narrow law to protect the youth. This
revision comes to be known as the Children’s Internet Protection Act passed in 2001.
(President Clinton ends up signing this act into law). The contextual forces behind
Congress now slightly changes with this law in that CIPA is not necessarily requiring the
restriction of all materials deemed harmful to minors, but now requiring the use of
filtering software in order to do so. This law proposes to limit minor’s exposure and
access to pornography and various other explicit materials found online. In CIPA,
Congress narrowly tailored the law so it specifically targeted the use of this filtering
software as a safety control in public schools and libraries where access to unsupervised
computers was more prominent. In addition, the law also mandated that if the use of the
filtering software was not followed the federal government had the right to withhold
federal funds from those institutions. This law is shortly challenged in the lower courts on
a claim that CIPA still violates First Amendment rights to Free Speech and the right to
view constitutionally protected materials on the Internet.
The American Library Association (a change from the American Civil Liberties
Union) is the group to challenge this law in the lower courts on these grounds. Although
the organization challenging the law has changed, their contextual forces are relatively
the same as the ACLU. The ALA is fighting for the rights of the public libraries to
determine if they want to use the software, many are claiming that they should not be
forced to limit what their customers can view when they are privately using the Internet.
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An additional factor for the challenges against CIPA however is that there is the
withholding of federal funds associate with non-compliance. The practical implications
of this law are not only to protect individual rights, but also to not allow the government
to have any further say in private actions. The District Court finds that Congress ahs
successfully formed a law that remains within the confines of their powers, while at the
same time enforcing their intentions of protecting the youth and innocence of the U.S.
The American Library Association then feels it an obligation to appeal to the Supreme
Court in order to reject the filtering requirements and withholding of federal funds. This
comes to the Supreme Court as United States v. American Library Association. If the
Court determines the appeal o be invalid, which they do, then they are obligated to
uphold the Children’s Internet Protection Act because they found no First Amendment
violations and that is was indeed constitutional. Finally, through the long and complicated
“back and forth” process that has been shown the branches of government constructed
constitutional law that was not found to infringe upon an individuals private right, as well
as accomplish the goal of Congress to protect minors. The above information portrays
how the serpentine model follows the conflict relationship and “conversation” process
between Congress and the Supreme Court to construct a democratic process often seen
throughout relations in the government.
Discussion
The Supreme Court, Congress, and the individual (whether it be the American
Civil Liberties Union, the American Library Association, or the District Court in this
example) create logic of interaction. It is through that logic of interaction, which can be
considered as the conflict occurring between the branches, that democracy and
democratic principles are being socially constructed. Without that conflict ensued at the
very start of the process with the first attempt by Congress (the CDA) being shut down,
the outcome could have been severely different. CMM and the serpentine model make
this complicated process of construction of democracy easily viewed. There is not an
extensive amount of research that explicitly examines the process that has been examined
in the present case, making it even more helpful to use the serpentine model and the
examples that have been used. Much of the process has been examined in the previous
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section, describing the flow of the back and forth conversation between Congress and the
Supreme Court. This is a continual process as long as the relationship between the parties
exist there will be a pattern of interaction assisting in creating our social construction of
democracy and reality as a whole. This is a prime example of that construction and
pattern resulting from the inherent conflict that will always exist between Congress and
the Supreme Court.
Review of Literature
The following reviews the relevant literature associated with the conflict
relationship existing between the United States Congress and the Supreme Court. It is
through this conflict and the use of the coordinated management of meaning theory that
we can see the social construction of our democracy and the way in which conflict is such
a significant part of the construction of our social realities. Please note not all of the
referenced material will be included in the literature review for some were mostly used as
a reference to check law standards and updates on the court cases and acts of Congress
used in the examination. There have not been an extensive number of studies done on this
particular relationship and its resulting effect, but the following pieces of literature
illuminate the examinations that have been done and contribute greatly to the present
study.
A Proposal for Integrating Structuration Theory with Coordinated Management
of Meaning Theory written by Randall A. Rose discusses the way in which the
structuration theory can be integrated with the coordinated management of meaning
theory (CMM). For the purpose of the study done in the research paper this piece of
literature is being primarily used for its assistance in explaining and understanding the
coordinated management of meaning theory. Having a thorough basic understanding of
CMM is essential to understanding the study put forth, it is what the entire process and
pattern is modeled around. CMM is what explains the pattern of which the Supreme
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Court and Congress relationship and construction of Democracy rely upon. As this piece
of literature states “…the coordinated management of meaning is the most
comprehensive statement of social construction crafter by communication scholars.”
(Rose, pg.174) Another essential factor Rose points to is the “recursive interplay” among
the communication between those parties involved. These points, along with the
frameworks of meaning are what enables’ individuals to understand the process presented
in this study. There is a section beginning on page one hundred and seventy seven where
the author specifically focuses upon an overview of CMM. This section includes use full
information regarding the history, and emergence of this theory. The section also
embodies the process, which the entire study on the social construction of Democracy
relies.
On a different note, the following pieces of literature will more so shift focus
from the CMM and communications aspect of this study and give insight into the conflict
relationship and history surrounding the Supreme Court and Congress over the years.
Joseph Tanenhaus states many that go into the behavior of the Court in his article
entitled, Supreme Court Attitudes Toward Federal Administrative Agencies. Tenenhaus
determines these factors to be the external, the institutional, and the personal. As the
article goes on to describe these three factors in detail it is realized that these help to form
the hierarchy of the Supreme Court in the serpentine model used in the present study
being researched. As seen throughout this study on the conflict relationship between
Congress and the Supreme Court, the author confirms, that “…the Court has been
confined to acting as overseer and to make certain that the agencies conduct themselves
in accordance with…the Constitution.” (Tenenhaus, pg. 506) This gives support that the
Court has this power of judgment and it is their duty to uphold this. The quantified data
displayed in this article is interpreted to support the ideas of the relationship between
Congress and the Supreme Court. This is a significant source of information for the study
presented in this research.
Similarly, Jonathan D. Casper undertakes to discuss the role of the Supreme Court
in relation to policy making in the American legal system and the democratic process in
his article The Supreme Court and National Policy Making. Specifically, this article looks
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to the argument set forth by Robert A. Dahl. Dahl takes a traditional view of the Supreme
Court in American society, seeing it as a “policy making institution.” (Casper, pg 50) The
article states how Dahl chose to look at the approval for the majority members of
Congress for certain legislation. In turn he then looks to the establishing framework to
determine whether the Courts policy choices run contrary to the national majorities in
Congress. Just as in some instance within the example used in the examination of the
communication relationship between Congress and the Court, Dahl looks at those pieces
of legislation that the court declares to be unconstitutional. This article is one of the
closest linked studies found in relation to the examination this research paper has
presented. Casper also eludes to the fact that if Congress believes something to be of a
“major policy” issue they will not just allow it to end at the Court declaring it
unconstitutional. Just as Congress did with the protection of the youth from harmful
materials online legislation that twice got struck down as in violation of the Constitution,
they continued to revise the acts and finally came the Children’s Internet Protection Act
upheld by the Supreme Court. This study set forth originally by Dahl and elaborated on
by Casper significantly supports the correlation of the conflict relationship between
Congress and the Supreme Court.
Congress and the Court, is a meeting report featuring Senator Charles Schumer
and Judge J. Harvie Wilkinson, III reporting statements made during a meeting of the
Assembly in Washington D.C. on March 21, 2002. This is an extremely interesting
report, especially for the purposes of the examination being presented in this research
paper. The meeting was established to discuss the extensive material in the Library of
Congress documenting the history of the relationship between Congress and the Supreme
Court. Senator Schumer began and first discussed his feelings toward the relationship
between the branches. He goes into say that he has great respect for the judicial system.
Generally speaking, Senator Schumer believes Congress makes the laws, the President
implements them, and the Court was meant to interpret and apply the laws. He
acknowledges the conflict that does exist between Congress and the Court and the power
struggle for a balance. It is inherent in the roles that the two play for there to be some
form of conflict. As for Judge J. Harvie, he says yes indeed there is a “frayed”
relationship between the branches, yet it is through communication like this meeting that
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there is an opportunity to restore a more balanced relationship. The ideas and beliefs of
both the members of Congress and the members of the judicial system is illustrative of
the relationship set forth in the examination of the “back and forth” process of CMM.
This particular meeting transcript sheds a significant light upon this relationship and the
inherent conflict that the process works with.
Lastly, the article Explaining Congressional Attempts to Reverse Supreme Court
Decisions written by Joseph Ignagni and James Meernik is significant to the pattern
explained in the present research paper. In this article the authors examine the aspects
that could lead Congress to attempt to revise those federal laws that have been declared
unconstitutional in Supreme Court cases. Essentially, this is describing the conflict
relationship between these branches, just as what has been illuminated in the research
paper, yet without the process and communications aspect supporting it. This piece of
literature significantly assist in understanding the struggle between the Supreme Court
and the Congress and what goes into having to revise laws in order to pass Constitutional
standards. Just as Congress had done in the specific examples used regarding Internet
protection acts, they continually revised the laws proposed until they came to one that the
Supreme Court finally accepted to be within the confines of the Constitution and did not
violate any individuals First Amendment rights. The article alludes to the fact that there is
not an extensive amount of research that had focused on the specific conflict between
Congress and the Supreme Court, which has been previously mentioned in this section.
Just as the authors intended with the model they set forth here, this study adds a great
deal to future research on the conflict. The article gives a better understanding to both the
congressional and judicial members and also an attempt at a more thorough explanation
of the nature and depth of the conflict between them. This study was very interesting and
hit the conflict between the branches perfectly, the only part missing for this article to be
like the research begin presented in this paper is the communication process and the
“back and forth’ to explain the construction made from the conflict.
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References
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Review, 70(1), 50-63. Retrieved from JSTOR database.
Clark, T. S. (2009). The separation of powers, court curbing, and judicial legitimacy. American Journal of
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Hamilton, A. (1982). Federalist 78. The federalist papers (pp. 471-479). Westminster, MD: Bantam Dell
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Handberg, R., & Hill, H. F., JR. (1980). Court curbing, court reversals, and judicial review: The supreme
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Johnson, J. W. (Ed.). (2001). Historic U.S. court cases. an encyclopedia (Second ed.). New York London:
Routledge.
O'Brien, D. M. (2008). Constitutional law and politics: Civil rights and liberties (7, Volume 2 ed.). New
York, New York: W.W. Norton & Company Inc.
Rose, R. R. (2006). A proposal for integrating structuration theory with coordinated management of
meaning theory
. Communication Studies, 57(2), 173-196. Retrieved from EBSCOhost database.
Senator Charles Schumer and Judge J. Harvie Wilkinson, III. (2002). Congress and the court. Bulletin of
the American Academy of Arts and Sceinces, 55(4), 37-69. Retrieved from JSTOR database.
Street, Lawrence F., Grant, Mark P., Sandra Sheets Gardiner. (2010). Chapter 8: Censorship. Law of the
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Tanenhaus, J. (1960). Supreme court attitudes toward federal administrative agencies. The Journal of
Politics, 22(3), 502-524. Retrieved from Cambridge University Press database.
Supreme Court Cases
Reno v. American Civil Liberties Union
521 U.S. 844, 117 S.Ct. 2329 (1997)
Ashcroft v. American Civil Liberties Union
542 U.S. 656, 124 S.Ct. 2783 (2004)
United States v. American Library Association
539 U.S. 126, 123 S.Ct. 2297 (2003)
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Appendix A
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