NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co. 200 U.S. 321, 337

U.S. Supreme Court


Syllabus

RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al.
v.
AMERICAN CIVIL LIBERTIES UNION et al.

Appeal from the united states district court for the Eastern district of Pennsylvania
No. 96-511.
Argued March 19, 1997
Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. 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 injunction against enforcement of §223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. 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.

Held:

The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 17-40.

(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 17.

(b)A close look at the precedents relied on by the Government--Ginsberg v. New York, 390 U.S. 629 ; FCC v. Pacifica Foundation, 438 U.S. 726; and Renton v. Playtime Theatres, Inc., 475 U.S. 41--raises, rather than relieves, doubts about the CDA's constitutionality. 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. Pp. 17-21.

(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media--the history of extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 --are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp. 22-24.

(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the twostandards relate to each other and just what they mean. The vagueness of such a content based regulation, see, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380 U.S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" standard repeats the second part of the three prong obscenity test set forth in Miller v. California, 413 U.S. 15, 24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In addition, the CDA applies only to "sexual conduct," whereas, the CDA prohibition extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp. 24-28.

(e) 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, see, e.g., Ginsberg, 390 U.S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, supra, at 126. 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. See, e.g., Sable, 492 U.S., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently than others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp. 28-33.

(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable. See, e.g., Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 536. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 33-35.

(g) The §223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that §223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not economically feasible for most noncommercial speakers. Pp. 35-37.

(h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its severability clause, §608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, supra, at 18, and §223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of §223(a) standing. Pp. 37-39.

(i)> 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 basisunderlying this contention: that the unregulated availability of "indecent" and "patently offensive" material is driving people away from the Internet. P. 40.

929 F. Supp. 824, affirmed.

The nineties were an interesting time for congressional law. An entirely new medium had grown from a secret military project into the behemoth we now call the internet, and it was in the middle of a fight for survival. Just like television and radio at their inception, there were many opinions about how current laws applied. Censorship came quickly to the forefront of these issues, spurred primarily by a bill called the Communications Decency Act (CDA). While the CDA was not to last, it incited a lawsuif that paved the road for internet rights. The majority of internet freedom cases are now decided based on the ruling in Reno V. ACLU, making it a pivotal piece of legal history.

There is a vicious legal circle associated with innovation; it seems that every time a new communications medium appears to be gaining popularity, it is wracked with lawsuits and fights over censorship. When the humble Arpanet evolved into the Internet (and, eventually, the World Wide Web), it was hailed as the future of information distribution. Its creators envisioned a digital utopia founded on free information exchange. Unfortunately, this was a case where a good idea got mugged by the facts.

Copyrighted material showed up on the internet almost instantly, along with vast amounts of pornography and vulgar material. Suddenly parents were demanding that laws be put in place to protect their children from this indecent material, similar to the laws regulating broadcast media. The internet was suffering through what was for television the first sign of success: public controversy.

The Communications Decency Act was drafted with none but the best intentions. The premise was simple: If passed, the CDA would make it illegal to transmit any vulgar or obscene material over public channels (read: Web pages, newsgroups, etc.) on the world wide web to any location where a minor could potentially view it. The bill was no different than others already applied to broadcast media like television and radio; why should things be different for the internet?

Of course, free speech advocates found this justification intolerable. They argued that the web was a unique form of communication, and that it could not be censored like a broadcast medium that had a limited number of federally-assigned frequencies available. Their main point was that the internet is infinite, and so there is no justification to censor offensive/obscene material, since it does not detract from (or leave less room for) the rest of the content available. Congress was not convinced, however, and the bill was passed by a resounding majority. Immediately after the bill was signed into law by President Clinton, the ACLU, along with library associations, on-line service providers, and civil liberties groups, filed suit.

The federal court had on their hands a case that would shape the future of digital communications. The primary issue in ACLU V. Reno was, in addition to questioning the constitutionality of the CDA, how the first amendment should be applied to the internet. After four months, the district court ruled in favor of the ACLU, saying that the internet was a unique medium and that the CDA's restriction of the first amendment was unnecessary to achieve the goal of protecting children from obscene material. It was also noted that the provisions of the law would prevent publication of literary works such as Catcher in the Rye on the internet, and that censorship like this had been previously ruled intolerable. The main point that the ruling hinged on was that while precedent upholds the rights of federal and state legislatures to create "adult zones," it does not make legal laws that also restrict adult access to the same material. The judges cited Butler V. Michigan, where it was ruled that creation of such laws would "reduce the adult population . . . to reading only what is fit for children."

This decision was rather controversial given the support that the CDA had in congress. Not everyone was upset, though. Senator Patrick Leahy, who led the opposition to the law in the Senate, was ecstatic about the decision and quick to defend the courts, noting that "the decision is NOT a victory for child pornography or indecent material--but instead a victory for the First Amendment." He also brought up a story about an Internet Service Provider banning users for violating the CDA when having a discussion in a chat room about preventing breast cancer. "Many members of Congress who voted in favor of the CDA have absolutely no idea of how the Internet works," he said. "Some of them think their computer is a TV on the fritz." Other congressmen expressed certainty that the ruling would be overturned by the Supreme Court, which was set to hear the appeal.

After examining the case, the Supreme Court determined in a 7-2 ruling that the lower court was correct in its decision. It was determined that unlike radio and television, there was no government, company, school, or anything else that centrally regulated the internet, and therefore moderation of the internet en masse was nearly impossible.

The main focus as far as precedent for the case was on legal "adult zones," already in use in establishments such as bars and adult stores. While many supporters of the CDA cited Ginsberg V. New York as relevant to the case, Justice O'Connor noted in her opinion that "The Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone ... since it denied access only to minors." Ginsberg was therefore irrelevant, since the sanctions imposed by the CDA would affect adult access to the material in question. The court decision stated that "gateway technology" that would effectively create an "adult zone" on the internet (presumably with the use of a password and age verification) was not available as of 1997, and therefore "the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech." This was found to be an unacceptable violation of the first amendment.

Reno V. ACLU was really the original precedent concerning free speech online; online speech advocates such as the Electronic Frontier Foundation tout it as one of the most resounding free speech cases ever to be heard by the courts. After the CDA was overturned, in 1998 congress has passed the Child Online Protection Act (COPA), which is commonly referred to as the CPA II. This law banned "commercial distribution" of illicit material on the internet, and was an attempt by congress to use subtle rewording to pass a law that would have the same basic effect as the CPA was intended to.

In 2002, after federal district and apellate courts deemed the COPA unconstitutional, it was sent to the Supreme Court. This time the justices were not as well-convinced, and remanded the decision back to the district court, saying that "COPA's reliance on community standards to identify ``material that is harmful to minors´´ does not by itself render the statute substantially overbroad for purposes of the First Amendment." It was decided that COPA was not to be acted on, pending further court rulings. In October 2003, the Supreme court granted a writ of certiorari on the case for a second time, the ruling having been upheld again by both lower courts. This ongoing battle serves to demonstrate the sensitivity of the free speech issue, and it is clear that nobody has won the battle yet.

The decision in Reno V. ACLU is likely to remain controversial for some time, at least until a reasonable amount of precedent is available to aid court decision-making. It is still unclear at this point how far freedom of speech can be extended online. The courts are blazing new trails in this area of law, and new technology that is constantly being added to the internet requires consideration. The internet is a more dynamic subject than most that the courts deal with, and landmark decisions that will change the internet (and quite possibly communication as we know it) have yet to be made.

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