Supreme Court Strikes Provisions
of Communications Decency Act

© 1997 Green & Green All Rights Reserved

The Supreme Court validated this author's predictions that the Internet is a viable place for freedom of speech.

On June 26, 1997 the Supreme Court in the case of Reno vs. ACLU (No. 96-5101) stated that anyone with access to the Internet may take advantage of a wide variety of communications and information retrieval.  In a wise, well thought out and inspiring opinion, The Supreme Court pointed out that about 100,000 messages are posted every day and tens of thousands of users are in conversations on the Internet.  For the background, see the article, Decency Act Held Indecent.

In overturning the communications decency Act, the court stated that sexually explicit material including text, pictures and chat are widely disseminated.  The court based much of its opinion on the fact that "users seldom encounter such content accidentally."  And the Supreme Court found that the industry, for the most part can police itself and set standards. Most sexually explicit images are "preceded by warnings as to the content" and for that reason they stated "the odds are slim" that a user would accidentally happen onto a sexually explicit site.  The court found a child would require sophistication and ability to read the materials necessary to access them and held that it was unlikely the child was going to accidentally view a sexually explicit page on the Internet.

Since the government offered no evidence that there was a reliable way to screen recipients and participants, certain of the conditions in the original Communications Decency Act were illegal.  These conditions included requiring a credit card number or an adult password or verification of certain requested information. These are in apposite to the First amendment because requiring a user name or password or commercial credit card usage "would impose significant burdens on non commercial sites" and therefore chill their ability and free speech.

The Supreme Court agreed with the lower court's opinion that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet.  The court stated that the "Internet is the most participatory form of mass speech yet developed" and is "entitled to the highest protection from government intrusion."  The CDA fails to provide any definition of the term "indecent" and amidst the requirements that depend on some loose definition of offensive material.

The Supreme Court held that the vagueness of the CDA is a matter of special concern for two reasons (1) that these parts of the CDA are content-based regulation of speech and have an obvious chilling effect on free speech.  (2) the CDA is a criminal statute and threatened violators with penalties including up to two years in prison for each act of violation.

The court had already spelled out the standards of review of "obscene" material in the case of Miller vs. California, 413 U.S. 15 (1973). This is the modern foundation and provided the basis upon which to define obscenity.  The Justices, lead by J. Blackmun, held that it is clear that "sexual expression which is  indecent but not obscene is protected by the first amendment."  The government could not explain why less restrictive alternative provisions could not be as effective as the CDA.  Thus the Supreme Court in one of the wisest decisions recently handed down, upheld the judgment of the district court.

Author's Note: This neither means that all sexually explicit materials are allowed "per se" nor that the state governments may not be free to attempt to regulate this area of law. It is a question to ask: Whether you might be operating legally in your "home" state, yet violate laws of other states and governments? This is a cautious and evolving area of the law.

IF YOU ARE CONCERNED about what materials you child might see on the Internet, see sites such as: http://interact.uoregon.edu/MediaLit/FA/MLChildren.html. You can refer to the many pages of Internet content that describe and list what many child-friendly sites there are.  You can also purchase software that allow you to program what a user may see and what they may not. See: Links -> Local Industry on The Web -> Strategic Information Technology, International to see such a product.