Reno v. American Civil Liberties Union

In this, the first ruling by the Supreme Court on legal issues raised by the Internet, the Court determined that online communication differed significantly from broadcasting and should therefore be subject to less regulation. It found that two regulations intended to protect minors from pornography were unconstitutionally vague.

Congress adopted the Communications Decency Act (CDA) as part of the Telecommunications Act of 1996, a law regulating many aspects of the telecommunications business, including the Internet. The CDA included two provisions designed to prevent persons under 18 from viewing pornographic materials on the Internet. The first provision, 47 U.S.C. sec. 223(a), prohibited the knowing transmission of obscene or indecent messages to persons under 18, regardless of who initiated the communication. The second section, 47 U.S.C. sec. 223(d) prohibited "sending or displaying patently offensive messages" to persons under 18. Both set out criminal penalties, including prison terms of up to two years.

Two affirmative defenses were also allowed. One provided an exception for people who take "good faith, reasonable, effective, and appropriate actions" to prevent minors from seeing such material. The other covered methods of restricting access, such as age verification services.

Two suits challenging the law were filed by the American Civil Liberties Union and a number of other organizations including several major Internet service providers; organizations representing journalists, booksellers, publishers, editors, libraries, and writers; and several groups providing educational materials on sex and sexually transmitted diseases. A federal district judge granted a temporary restraining order in February 1996 against sec. 223(a) on the grounds that the word "indecent" was too vague. The two cases were consolidated and brought before a panel of three federal district judges. The three judge panel granted a preliminary injunction against both provisions, permitting only the language prohibiting obscene communications in sec. 223(a) to stand. The federal government appealed the case directly to the U.S. Supreme Court.

Perhaps the most significant part of the High Court's ruling distinguished the Internet from the broadcast industry. In finding that the 1978 decision in FCC v. Pacifica Foundation did not apply to this case, the Court noted that the broadcast medium had been subject to extensive regulation for many years, while the Internet has not been regulated. It also noted that the Internet was not as "invasive" as radio and television. An Internet user rarely finds material accidently, the Court said, and most indecent material is preceded by warnings to that effect. Conversely, it noted, broadcasts are sent to a wide audience that can easily include children. The program at issue in the Pacifica case involved an afternoon broadcast of a radio monologue called "Filthy Words."

The Court concluded that use of the Internet was more similar to that of prerecorded sexually explicit telephone messages. In Sable Communications of California Inc. v. FCC, the High Court found a law prohibiting such services unconstitutional when applied to indecent messages, though it allowed it when applied to obscene ones. Quoting from its opinion in "Sable", the Court said, "Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message." The Court also noted that the Internet, unlike the broadcast medium, was a scarce commodity, and therefore did not require the same extensive regulation.

The Court also noted another strong distinction between the material regulated by the CDA and other laws regulating indecent and obscene materials: the right of parents to determine what their children should see. In another case cited by the government in support of the constitutionality of the CDA, Ginsberg v. New York, the High Court upheld a law that prohibited selling materials to minors that were deemed obscene for children though not obscene for adults. In distinguishing this case, the Court noted that, under the New York law, parents could provide these materials to their children. In contrast, under the CDA parental consent would not make the material available. The Court also rejected as precedent a 1986 decision, Renton v. Playtime Theatres, noting that the law upheld in that case was primarily a zoning ordinance that prohibited adult movie theaters in certain neighborhoods. That law was aimed at crime associated with such theaters, rather than speech regulation, the Court said.

Since the CDA clearly regulated the content of speech, and set out criminal penalties, the Court found the ambiguity of its language presented major First Amendment problems. Given the vagueness of terms such as "indecent" and "patently offensive as measured by contemporary community standards," the Court said serious questions arose. "Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA?" the Court asked, adding "This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials."

The Court concluded that the CDA differed markedly from the obscenity test set out in 1973 in Miller v. California, the case that established the definition of obscenity. Miller requires that a work appeal to prurient interests, describe sexual content offensively and as "specifically defined by the applicable state law," and have no "literary, artistic, political or scientific value." The CDA does not meet that specificity test, and adds "excretory activities," a term not used in Miller. The Court also noted that while Miller set out the term "contemporary community standards," it did not apply that term to the literary, artistic, and other values that a work might have. The CDA's vague terms do not include such protections. "In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope," the Court said. It added, "We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech."

The Court also noted that it would be "prohibitively expensive" for website owners to verify that their users were adults. It also noted that software for parents to install that prevents children from accessing certain sites would soon be widely available. Concluding that the CDA puts an "unacceptably heavy burden on protected speech," the Court left intact only the provisions prohibiting obscene speech. In closing, the Court noted that the "interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."