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Reno, Attorney General of the United States, et al. v. American Civil Liberties Union
Decided June 26, 1997; 521 US 844


The Communication Decency Act regulating content on the Internet is overbroad
and constitutes an unconstitutional restraint on the First Amendment.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Free speech

B. Legal Question Presented:

Do the two provisions of the Communication Decency Act, which seek to protect minors from "indecent" and "patently offensive" communications on the Internet, abridge free speech?

II. CASE SUMMARY:

A. Background:

"Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet... Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997) criminalizes the 'knowing' transmission of 'obscene or indecent' messages to any recipient under 18 years of age. Section 223(d) prohibits the 'knowin[g]' sending or displaying to a person under 18 of any message 'that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.' Affirmative defenses are provided for those who take 'good faith... effective... actions' to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B).

A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d). After making extensive findings of fact, a three judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoins the Government from enforcing §223(a)(1)(B)'s prohibitions insofar as they relate to 'indecent' communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. 

The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague."

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
ACLU (party of record) Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
IV. THE SUPREME COURT'S DECISION:

"The CDA's 'indecent transmission' and 'patently offensive display' provisions abridge 'the freedom of speech' protected by the First Amendment. Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue...

The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of 'indecent' and omits any requirement that 'patently offensive' material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions.

The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials... the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive... Its breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes.

The Government's argument that its 'significant' interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of 'indecent' and 'patently offensive' material is driving people away from the Internet."

The US Supreme Court affirmed the judgment of the District Court for the Eastern District of Pennsylvania.

Justice Vote: 7 Pro vs. 2 Con
  • Stevens, J.P.Pro (Wrote majority opinion)
  • Scalia, A. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Ginsburg, R.B Pro (Joined majority opinion)
  • Thomas, C. Pro (Joined majority opinion)
  • Breyer, S. Pro (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion in part and wrote dissenting opinion in part)
  • Rehnquist, W. Con (Joined dissenting opinion)
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as party of record, urged affirmance of the judgment of the District Court for the Eastern District of Pennsylvania; the Supreme Court affirmed in a 7-2 vote, giving the ACLU an apparent win.