Federal Internet Law & Policy
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Communications Decency Act :: Litigation

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- Notes

In Reno v. ACLU, the U.S. Supreme Court ruled unanimously on June 26, 1997, that the Communications Decency Act (CDA) violates the First Amendment.  

The CDA was signed into law as a part of the Telecommunications Act of 1996. Almost immediately upon being signed into law, the American Civil Liberties Union along with a myriad of other plaintiffs brought suit in Federal Court in the Eastern District of Pennsylvania in order to enjoin the Act. The ACLU filed suit pursuant to Section 561 of the Act, which authorized expedited judicial review of facial constitutional challenges to the Telecommunication Act. After a temporary restraining order was issued, plaintiffs' motion for a permanent injunction was heard by a three-judge panel of the Federal District Court. After making extensive and detailed findings of fact of the Internet and its unique characteristics, the District Court enjoined the enforcement of the Communications Decency Act. Each judge on the panel wrote his or her own separate opinion. [Dist. Court]. The U.S. Department of Justice (DOJ) then filed an appeal that pursuant to Section 561 went directly to the Supreme Court and that the Supreme Court was required to hear.

Impressed by the role of the Internet in democratic discourse, and building upon the impressive fact finding of the District Court, the Supreme Court unanimously upheld the decision of the District Court (Justice O'Connor, with Chief Justice Rehnquist joining, dissented in part. Justice O'Connor, otherwise agreeing with the Court's decision, would have sustained the CDA insofar as it applies to the knowing transmissions of indecency between a single adult and one or more minors).

See CDA Reference Page for List of Litigation Documents at District Court and Supreme Court, along with papers and articles.

Writing for the Court, Justice Stevens immediately noted that the CDA does not sit comfortably with the rest of the Telecommunications Act. Where the other provisions of the Telecommunications Act rose to epic levels, implementing the most substantial reforms to the telecommunications landscape since 1934 as the result of extensive committee hearings and reports, the provisions of the CDA were "added in executive committee after the hearings were concluded or as amendments offered during floor debate." There was a marked lack of Congressional fact finding substantiating either the need for or the effectiveness of the CDA. Furthermore, the challengers to the CDA pointed out that in an age of increased competition and a decreased role for the Federal government, the CDA called for increased regulation and an expansion of federal jurisdiction into untouched areas. As the only section of the Telecommunications Act which directly dealt with the Internet, the CDA was seen by many as a knee-jerk reaction in an election year to "barbarian" Internet pornographers.

Amplifying the findings of the District Court that the Internet constitutes a revitalization of democratic discourse, the Supreme Court noted that "at any given time 'tens of thousands of users are engaging in conversations on a huge range of subjects.' It is 'no exaggeration to conclude that the content on the Internet is as diverse as human thought.'" Where traditional media of communication are characterized by high entrance barriers, "any person or organization with a computer connected to the Internet can 'publish' information." Once the material is "published" on the Internet, it becomes available everywhere on the globe; the provider "cannot prevent that content from entering any community."

During the litigation of the CDA, there was an ongoing debate over what is the proper analogy for the Internet. This debate was based on the First Amendment principal that each medium of communications has unique characteristics for which the Court must account. The First Amendment as applied to print media is not the same as the First Amendment applied to broadcast or to dial-a-porn. The Supreme Court, however, rejected the furious search for a proper analogy and instead focused on the unique nature of the Internet. The Court recognized that the Internet is a medium unlike any before it. Specifically rejecting the arguments of DOJ, the Supreme Court found that the Internet is unlike a bookstore (in Ginsberg v. New York, 390 U.S. 629 (1968), the Supreme Court "upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene . . ."), unlike a movie theater (in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the Supreme Court "upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods"), and unlike broadcast (FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).

The refusal of the Court to compare the Internet to broadcasting is perhaps the most fascinating. Summarizing the First Amendment as applied to broadcasting, most notably articulated in Pacifica, the Court described the three primary rationales which permit civil restraint on broadcasting indecency. "[T]he Court relied on the history of extensive government regulation of the broadcast medium; the scarcity of available frequencies at its inception; and its 'invasive' nature." The Court reiterated that these broadcast cases are "emphatically narrow holding[s]" which do not give the FCC or any other part of the Federal government license to expand its role as a communications censor.

The Court rejected DOJ's argument that Pacifica should be extended to the Internet, finding significant differences between broadcasting and the Internet. First, Pacifica was a case which involved a broadcaster engaged in a "rather dramatic departure" from tradition concerning when, not whether, it would be permissible to broadcast the objectionable material. In other words, Pacifica did not involve a prohibition on the broadcast of George Carlin's monologue, but rather when the FCC could restrict it. The CDA, on the other hand, would prohibit the objectionable speech across the board; there are no safe harbors in the CDA or on the Internet. Second, the Court concluded that "the Commission's declaratory order [in Pacifica] was not punitive," it was civil. The CDA, on the other hand, imposes criminal sanctions of up to two years imprisonment and a fine. Finally, "as a matter of history broadcast had 'received the most limited First Amendment protection' in large part because warnings could not adequately protect the listener from unexpected program content." The Court's analysis addressed two issues: the history of regulation and the "invasive" - or "pervasive" - nature of broadcast. First, the Court noted that, in contrast to broadcast, the Internet has no history of regulation (a history of regulation cannot be permitted because there is no history of regulation). Second, unlike broadcast where viewers passively receive content, Internet users are required to take a series of affirmative steps that minimize "the risk of encountering indecent material by accident." "Users seldom encounter content 'by accident.'" Therefore, the Court concluded that the Internet does not share the "invasive" characteristics of broadcast.

The Court also noted that unlike broadcast, "the Internet can hardly be considered a 'scarce' expressive commodity." The scarcity of the broadcast spectrum is at the core of the "public trustee" doctrine, which is one of the justifications for holding broadcast licensees accountable for the content of their stations. Cyberspace is relatively limitless and anyone can take advantage of the Internet at a substantially reduced expense. Thus, the Internet cannot be treated like or compared to a scarce medium and the public trustee doctrine of broadcast is inapplicable.

The Court also considered the challengers' vagueness arguments. The CDA was rewritten several times in Congressional Committees in order to fend off a constitutional vagueness attack. The end result was essentially two different references to indecency. In Section 223(a)(1), the CDA criminalized the transmission of indecency. In Section 223(d), the CDA criminalized the transmission of material which "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs . . . " (emphasis added). The Court was at a loss for how to consider this dichotomy stating "The CDA fails to provide us with any definition of the term 'indecent' as used in § 223(a)(1) and, importantly, omits any requirements that the "'patently offensive' material covered by § 223(d) lack serious literary, artistic, political, or scientific value." The Court therefore concluded, "Given the absence of a definition of either term, this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean."

The Court found that the CDA lacked the precision required by the First Amendment when a statute regulates the content of speech and that it effectively suppressed a large amount of speech that adults have the constitutional right to receive. The Court pointed out that a restriction on speech is unacceptable "if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." The Court took note of the availability of user-end filtering software available to parents which can be used to block children's access to objectionable parts of the Internet. The Court concluded that the Government failed to meet its burden of explaining why these "less restrictive alternatives would not be as effective as the CDA." The Court also noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message." The Court stated that it is not acceptable to reduce acceptable discourse in the mailbox down to what is acceptable discourse in the sandbox; it is not acceptable to reduce community standards of acceptable speech down to the level of the most sensitive community on the global Internet.

This leaves the important question of what if anything is left of the CDA. Section 507, which would have prohibited discussions of abortion on the Internet, was the first to go; DOJ announced on February 9, 1996, that it would not defend the Section on the grounds that it was unconstitutional. The CDA as applied to "indecent" or "patently offensive" communications fell at the Supreme Court. However, exercising its authority under the severability provision of the Telecommunications Act, the Court has permitted at least a skeleton of the CDA to remain. The challengers did not challenge the constitutionality of the CDA's obscenity prohibition. As the Court noted, obscenity, as opposed to indecency, receives no First Amendment protection. Therefore, Section 223(a) remains to the extent that it applies to obscenity. Section 223(d), which used the "patently offensive" language could not be saved in the Court's view and was struck down in total.

The rest of the CDA was left standing. The defenses to prosecution remain intact. Also intact is the provision known as "Online Family Empowerment," which was codified as 47 U.S.C. § 230. This provision has already had a tremendous influence on public policy as a result of its often cited language that "[i]t is the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." This provision also contains what was referred to as the good Samaritan defense which protect providers and users by stating that they shall not "be treated as the publisher or speaker of any information provided by another information content provider" and that users and providers cannot be subject to civil liability where they, in good faith, restrict access to or availability of objectionable material.

In the end, the CDA decision was not about pornographers. Ironically, commercial pornographers welcomed the CDA because it set forth specific defenses that, if followed, would protect them from prosecution. The constitutional challenge to the CDA was ultimately about the people caught in the cross fire. As the District Court and the Supreme Court quoted, in its attempt to roast the pig, Congress would have burned down the entire house. In its attempt to stop pornography - which the CDA would have failed to do - the CDA would have chilled the speech of so many whose voices may be offensive to some but are nonetheless a vital part of our democratic discourse. As examples, the Court noted the UCR/California Museum of Photography, whose new exhibit announcements contain nudes by Edward Weston and Robert Mapplethorpe; Critical Path, for its safer sex instructions; Stop Prison Rape, for its on-line content; parents who send birth control information to their minor children at college, and arguably the Carnegie library for its card catalogue, all of which could not be certain of protection from prosecution under the CDA. The Court ruled that it is not acceptable for statutes which restrict content to chill speech throughout society or across the Internet.

A final point not addressed in the Court's decision is worth noting. The challenge to the CDA provided proof of the challengers' own argument. The challengers argued that the Internet should be cherished as a tremendous opportunity for democracy and society. It offers everyone the opportunity to have a voice and improve people's ability to be informed. It improves the lines of communication both to and from the sovereign, making the government more accountable to the governed. In the words of the District Court, "[i]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country and indeed the world has yet seen . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation."

It is because the Internet embodies democratic discourse at its highest level that it must necessarily receive strong First Amendment protection. And the challengers proved their point as the first large scale political movement on the Internet. Information concerning CDA developments was immediately available. Reports concerning the levels of pornography on the Internet were debunked aggressively. The CDA itself was debated endlessly in thousands of corners on the Internet. In the end, the opposition to the CDA showed the powerful role that the Internet now plays in society.


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