Cybersmut

Courts quash congressional attempt to regulate Internet decency

By David Hudson
First Amendment Center

Civil libertarians responded with outrage to the passage of the Communications Decency Act, viewing it as a draconian assault on freedom.

A group of organizations led by the American Civil Liberties Union filed a legal challenge to the Internet indecency provisions of the CDA in a federal trial court in Philadelphia on the same day it was signed into law. The ACLU referred to the CDA as "the most restrictive censorship scheme imposed on any medium."

Two and a half weeks later, the law was challenged again by the Citizens Internet Empowerment Coalition, comprosed of more than 20 groups and organized by the American Library Association, America Online and the Center for Democracy and Technology.

On Feb. 27, 1996, the coalition’s lawsuit was consolidated with the ACLU’s case.

The plaintiffs challenged two provisions of the CDA, referred to as the "indecent transmission" and "patently offensive display" provisions. The "indecent transmission" provision criminalized, by means of a telecommunications device, "the transmission … of any comment, request, suggestion, proposal, image or other communication which is obscene or indecent."

The "patently offensive display" provision read: "Whoever in interstate or foreign communications … uses any interactive communication device to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs … shall be fined … or imprisoned not more than two years, or both."

The plaintiffs—which included nonprofit groups such as the Critical Path AIDS Project—argued the law would essentially dumb down adult speech on the Internet in violation of the Supreme Court’s statement more than 40 years ago that a law cannot reduce adults to reading only material that is fit for children.

The plaintiffs argued the law was unconstitutional for several reasons, including that the CDA was overbroad and vague. Under the First Amendment overbreadth doctrine, a law is unconstitutional if in addition to prohibiting unlawful material it sweeps so broadly that it also punishes protected material. Under the related vagueness doctrine, a law is unconstitutional if people of common intelligence do not adequately know what conduct is prohibited.

A panel of three federal judges — Chief Judge Dolores K. Sloviter of the U.S. Court of Appeals for the 3rd Circuit and federal district court Judges Stewart Dalzell and Ronald L. Buckwalter — presided over a five-day trial in March 1996 during which the courtroom became witness to a live tour of the World Wide Web.

On June 11, 1996, the judges issued a historic 180-page opinion striking down the indecency provisions. The decision included a detailed finding of fact summarizing the state of the Internet and current technology.

In addition, each federal judge wrote separately, explaining his or her legal reasoning for finding the law unconstitutional. Judge Sloviter acknowledged that the government had established a compelling interest in protecting minors from harmful materials, but ruled that the law was simply drafted too broadly; i.e., it was not "narrowly tailored."

For example, according to Sloviter, helpful information about the HIV virus would be considered "indecent" under the law. Sloviter concluded that "it is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring."

Judge Buckwalter characterized the CDA’s "indecent" terminology as "unconstitutionally vague," writing: "The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA." Buckwalter focused on the fact that the CDA failed to provide a uniform community standard for defining "indecent" speech in cyberspace. This lack of a clearly defined standard, according to Buckwalter, would cause a "chilling effect on free speech" because plaintiffs and others must err on the side of restricting speech to avoid prosecution and "arbitrary enforcement of the act."

Judge Dalzell, on the other hand, distinguished the medium of the Internet from the broadcast medium. The government had argued that because regulations of indecent content in the broadcast medium were constitutional, indecency regulations on the Internet were as well.

However, Dalzell disagreed, writing: "My examination of the special characteristics of Internet communication and review of the Supreme Court’s medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation."

Cyber-liberties expert Mike Godwin told freedomforum.org: "The decision by the federal panel in Philadelphia was so good that it was impossible for the United States Supreme Court to uphold the constitutionality of the CDA."

Later that same summer, a New York federal district court in Shea v. Reno also prevented enforcement of the CDA indecency provisions, finding them to be unconstitutionally vague. Godwin said that "although the underlying arguments were not quite the same, the decision had a cumulative effect, along with the decision in ACLU v. Reno, and added more weight to the fact that this law was unconstitutional."

Reno v. ACLU: On to the U.S. Supreme Court

When members of Congress passed the CDA, they specifically provided for a quick review of the law’s constitutionality, allowing the losing party in a court challenge to bypass the federal circuit court of appeals and proceed directly to the Supreme Court. Thus, the government appealed the Pennsylvania decision directly to the Supreme Court, and on June 26, 1997, the high court issued its ruling in Reno v. ACLU.

The court struck down both the "indecent transmission" and the "patently offensive display" provisions of the CDA, finding both to be overbroad and unconstitutionally vague.

In an opinion written by Justice John Paul Stevens, the court began by approving detailed findings of fact about the Internet and reaffirming the lower court’s observations that the Internet "is a unique and wholly new medium of worldwide human communication," which contains content as "diverse as human thought."

The court then determined that the Internet, unlike the broadcast medium, was not subject to a lower level of First Amendment protection. "Our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium," the court declared. In fact, the Internet deserves the highest level of First Amendment protection, according to the court.

The high court concluded: "Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge district court that the statute abridges the freedom of speech protected by the First Amendment."

In its opinion, the court rejected the government’s contention that the CDA was constitutional, an argument based largely on three prior decisions: (1) Ginsburg v. New York; (2) FCC v. Pacifica Foundation; and (3) Renton v. Playtime Theaters, Inc.

In the 1968 case Ginsberg v. New York, the U.S. Supreme Court had upheld a New York law that prohibited the sale of material that was "harmful to minors" to those under 17. However, in the Reno decision, the Supreme Court made four distinctions between the New York law in Ginsberg and the indecency provisions of the CDA.

A parental consent defense was incorporated into the law at issue in Ginsberg. Under the provisions of the CDA, a parent could theoretically be charged for providing the computer used by her or his child to download "indecent" material;
While the New York statute applied only to commercial transactions, the CDA applied to both noncommercial and commercial Web sites;
The New York statute had defined ‘harmful to minors’ while the CDA "fails to provide us with any definition of the term ‘indecent;’"
The New York law applied to sales to those under the age of 17, while the CDA applied to those under 18.

In the 1978 case FCC v. Pacifica, a sharply divided U.S. Supreme Court ruled that the Federal Communications Commission could prohibit the broadcast of George Carlin’s "Filthy Words" monologue during daytime hours. Many legal commentators viewed the Pacifica case as the key precedent in Reno v. ACLU. University of Texas law school professor Scott Powe wrote in his article "Censorship in Cyberspace: First Amendment Rights Versus Protecting Children" that "Pacifica appears to be the key precedent because it is the only case in which the Supreme Court approved limited censorship of non-obscene speech when the speaker has no knowledge of who is listening."

The court in Reno distinguished Pacifica on several grounds:

The order in Pacifica was limited to a specific broadcast and merely regulated the time the program could air, while the CDA is a complete, 24-hour ban not limited to specific material;
The Pacifica order was not punitive; the CDA imposed criminal penalties;
Pacifica applied to the broadcast medium, which had long "received the most limited First Amendment protection," while the Internet had no such history of regulation.

In Renton v. Playtime Theaters, the U.S. Supreme Court had determined that the city of Renton, Wash., could zone adult businesses because the regulation was not directed at the content of the expression, but at the "secondary effects" of the businesses. The government argued that the CDA constituted a "cyberzoning" of the Internet.

The court in Reno rejected this comparison, noting that "the purpose of the CDA is to protect children from the primary effects of ‘indecent’ and ‘patently offensive’ speech, rather than from any ‘secondary effect’ of such speech."

The many ambiguities concerning the scope of its coverage render [the CDA] problematic for purposes of the First Amendment," the court noted, specifically criticizing the undefined terms "indecent" and "patently offensive."

Because Web site operators and others could not reasonably determine exactly what material constitutes indecent material, the court ruled that the CDA was unconstitutionally vague.

The court barely addressed the government's argument that the CDA would actually protect First Amendment rights. According to this line of reasoning, if speech were unregulated on the Internet, many people would be scared to venture into cyberspace; the CDA, therefore, would facilitate free speech by alleviating such anxieties. In papers filed before the court, the government argued the CDA furthered "the First Amendment interest of all Americans to use what has become an unparalleled educational resource."

Citing the "phenomenal growth" of this "new marketplace of ideas," the court rejected this argument as "singularly unpersuasive."

After the demise of the CDA

The cyberspace community rejoiced at the ruling that struck down the CDA. Bruce Ennis, lead attorney for the plaintiffs, described the opinion as providing the "legal birth certificate to the Internet."

David Sobel, legal counsel for the Electronic Privacy Information Center, told freedomforum.org: "The significance of the Reno v. ACLU decision is that it defines the First Amendment for the next century. It is the standard against which any Internet content legislation has to be judged."

Jonathan Wallace, co-author of the book Sex, Laws and Cyberspace, characterized Reno v. ACLU as "the most important free speech decision in decades" because it recognized "that there is no significant difference between printed and electronic text."

Vanderbilt professor Donna Hoffman, who testified as an expert witness in the Philadelphia case on behalf of the plaintiffs, said: "This ruling is a deeply satisfying victory because it reaffirms the rights and responsibilities of all individuals to be active and in-control participants in the most revolutionary communication medium since the development of the printing press."

But Sen. Dan Coats, R-Ind. one of the sponsors of the CDA, and others were bitterly disappointed. As Coats told Congress: "Regrettably, in reversing decades of precedent, the court chose to put the rights of pornographers ahead of the welfare of children."

While one lesson to be learned from Reno v. ACLU is that "attempts to criminalize speech on the Internet will likely fail constitutional review," as Solveig Singleton of the Cato Institute said, some legislators learned a different lesson. These representatives—both federal and state—have crafted new measures, narrower in scope, that they hope will survive constitutional challenges.

"In the aftermath of a ruling that gave on-line speech the same protection as books and other printed matter, there is an explosion of proposals and devices designed to send controversial but protected expression to the outer regions of cyberspace," observes The National Coalition Against Censorship.