Reno v. ACLU and Its Progeny
Running Head: RENO V. ACLU AND ITS PROGENY
RENO V. ACLU AND ITS PROGENY:
IMPLICATIONS FOR COMMUNICATION PROFESSIONALS
Truda Shinker
364-70-3724
Ohio University
11 Station Street, Apt. M
Athens, OH 45701
740/594-2033
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Abstract
In Reno v. ACLU, the Supreme Court's first encounter with the Internet and an
indicator of the medium's legal future, the Court ruled the Communications
Decency Act of 1996 unconstitutional and granted the Internet the broadest
possible protection under the First Amendment. In this paper, the author
discusses the issues surrounding the Internet, the Communications Decency Act,
and the Court rulings in the case, as well as the implications the case has for
the future.
Reno v. ACLU and Its Progeny: Implications for Communication Professionals
Reno v. ACLU was the Supreme Court's first encounter with the Internet and thus
serves as an important indicator of the medium's legal and legislative future in
the United States. In this case, the Supreme Court ruled the Communications
Decency Act of 1996 unconstitutional and "provided the Internet with the
broadest possible First Amendment protection" (Cox, 1998).
Because this decision has such important implications for the future, it is
vital for communicators, and indeed all users of the Internet, to understand the
nature of the Internet and the Court's reasoning in this case. In Part I of
this paper the author will introduce the reader to the Internet, the issues and
concerns surrounding the medium, and the government's first attempt at
regulation--the Communications Decency Act. The reasoning and final rulings of
the District Court and the Supreme Court in Reno v. ACLU will be detailed in
Part II. Finally, the author will analyze the implications of the Supreme
Court's decision and current Internet cases on the federal level in Part III.
PART I: Introduction
A. The Internet: History, Characteristics, and Controversies
The medium known today as the Internet began in 1969 with a U.S. military
initiative called ARPANET. This primitive network of computers was designed to
allow communication among the military, its defense contractors, and research
universities, even in times of war (ACLU v. Reno, 929 F. Supp. 824 at 847, 848,
1996). Although ARPANET is no longer in existence, its outgrowth, the Internet,
has expanded at an incredible rate in recent years. The number of host
computers in 1981 was 300; as of 1996, the number had reached approximately
9,400,000 (ACLU v. Reno, 929 F. Supp. 824 at 847, 1996).
Just what is the Internet? In simple terms it is a network of computers that
can talk to one another in a common language through phone lines or direct
connections (Pfaffenberger and Gutzman, 1998). This network enables millions of
people worldwide to communicate with one another for myriad purposes. Today the
Internet is being used for academic, commercial, and entertainment purposes,
just to name a few.
There are several ways to communicate via the Internet: e-mail, the World Wide
Web, chat rooms, newsgroups, and automatic mailing lists. While these methods
may differ in some ways, they all have important features in common. They are
all highly decentralized, anonymous, and available to anyone with the necessary
equipment. As will be discussed later, these features make it almost impossible
to regulate the Internet.
According to the 1998 Statistical Abstract of the United States, more than 62
million Americans have access to the Internet; 35 million own personal
computers, and 78 percent of schools have web access (projected to grow to 95
percent by 2000) (Leonard, 1998). Add this to the number of people worldwide
who have Internet access, and the figures become mind-boggling.
Obviously, with this many people accessing the Internet, there are going to be
disagreements about its content and use. One of the biggest issues today is the
use of the Internet for sending and receiving indecent and obscene materials.
While the courts have regulated access to obscenity in the print and broadcast
media, it is extremely difficult to regulate its appearance on the Internet, as
discussed above. Several companies have marketed software that aids parents in
limiting the Internet access of minors, but this software can be expensive and
easily evaded by computer-savvy children. With the number of children using the
Internet today, the issue of obscenity has many parents, educators, and
government officials worried.
They may have good reason to worry. One study of Internet usage found that
almost one-fifth of visitors to adult websites are between the ages of 12 and
17. For males between the ages of 12 and 17, adult websites are second in
popularity only to on-line gaming (Plotnikoff, 1998). And these minors have
plenty of websites from which to choose; there are an estimated 600 pornographic
sites on the Internet with approximately 39 new sites cropping up daily (Werst,
1998). Since on-line pornographic entertainment is the third largest moneymaker
in cyberspace, pulling in an estimated annual revenue of $100 million, the
business is expected to continue its phenomenal growth (Werst, 1998).
Because of these realities and the concerns of parents, educators, and others,
the U.S. government has tried to come up with ways to regulate children's access
to pornographic content on the Internet. But these efforts have run into
problems attributable to the unique nature of the medium. Criteria used to
regulate other media, such as newspapers, telephones, and television, are not
applicable to the Internet. For example, the courts have ruled that broadcast
media can be restricted because of a scarcity of spectrum space. As the Supreme
Court ruled in Red Lion Broadcasting Co. v. FCC (395 U.S. 367, 1969), the
limited number of broadcast frequencies available means indecent speech would
come at the expense of other forms of communication. The Internet does not have
any such access restrictions. In cases such as FCC v. Pacifica Foundation (438
U.S. 15, 1973), the courts have restricted the content of the broadcast media
based on its invasive nature. Children can easily happen upon indecent material
by accident. As will be explained later, the courts found that Internet content
is sought after and does not have the same invasive nature as the broadcast
media (Djavaherian, 1998).
B. The Communications Decency Act of 1996
The U.S. government's first attempt to regulate the Internet came on February 8,
1996, with the enactment of the Telecommunications Act of 1996. This act had
the primary purpose of reducing regulation and encouraging "the rapid deployment
of new telecommunications technologies" (Pub. L. 104-104, 110 Stat. 56). Most
of the act had nothing to do with the Internet, but was concerned with the local
telephone service market, multichannel video market, and the market for
over-the-air broadcasting (Reno v. ACLU, 521 U.S. 844 at 869, 1997). The act
consisted of seven titles, six of which arose from House of Representatives and
Senate committee hearings and were discussed in reports prepared by these
committees.
By contrast, Title V, the Communications Decency Act of 1996 (CDA or the Act),
contained provisions that were "either added in executive committee after the
hearings were concluded or as amendments offered during floor debate on the
legislation" (Reno v. ACLU, 521 U.S. 844 at 870, 1997). One of these amendments
was the subject of the ACLU's challenge because it contained the so-called
"indecent transmission" and "patently offensive" provisions. These provisions
read in part:
"Whoever in interstate or foreign communications, by means of a
telecommunications device, knowingly makes, creates, or solicits, and initiates
the transmission of, any comment, request, suggestion, proposal, image, or other
communications which is obscene or indecent, knowing that the recipient of the
communication is under 18 years of age, regardless of whether the maker of such
communication placed the call or initiated the communication"; and
"Whoever in interstate or foreign communications knowingly uses an interactive
computer service to send to a specific person or persons under 18 years of age,
or uses any interactive computer service 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, regardless of whether the user of such service placed the
call or initiated the communication; or knowingly permits any telecommunications
facility under such person's control to be used for an activity prohibited
(above) with the intent that it be used for such activity . . ." (47 U.S.C.
223).
The punishment for engaging in these activities was a fine and/or imprisonment
of not more than two years.
The government put these provisions in the Communications Decency Act for two
reasons. First, the growing public concern over the availability of obscene and
indecent material on the Internet forced Congress to address the issue. The
problem had sparked such debate that Congress could not ignore it any longer
(Pagidas, 1998). Second, some in the government felt that new users would be
kept away from the Internet by fears of the potential dangers of children
accessing obscene materials, halting the rapid expansion of the medium before it
reached its full potential (Reno v. ACLU, 521 U.S. 844 at 916, 1997). The
government felt it had a significant interest in fostering the Internet's growth
and thus wanted to limit any forces it felt would inhibit that growth.
President Clinton was a great proponent of the Communications Decency Act.
Although the administration had a history of siding with civil liberties groups
and Silicon Valley computer companies, the president supported the CDA and
pledged to fight for its adoption (Mauro, March 1997). Congress had criticized
his administration several years earlier for being lax in prosecuting child
pornographers (Greenhouse, 1997). The CDA gave the president an opportunity to
prove his stance against obscenity to his opponents and the country.
Many in the legal community did not agree with the government that the
provisions of CDA were defined narrowly enough to avoid infringing on the First
Amendment rights of adults. On the same day the Telecommunications Act was
signed into legislation by President Clinton, 20 plaintiffs filed suit against
the attorney general and the Department of Justice to challenge the
constitutionality of the "indecent transmission" and "patently offensive"
provisions. The plaintiffs had no quarrel with the restrictions on obscenity,
but were worried about the definitions of "indecent" and "patently offensive,"
as well as the ban on communication about sexual and excretory organs. One week
later District Judge Ronald Buckwalter placed a temporary restraining order
against the enforcement of those portions of the CDA, while upholding the
constitutionality of the sections dealing with obscenity. He was troubled by
the "unconstitutionally vague" use of the term "indecent." In his final
decision he stated, "It is a most compelling constitutional reason to require of
a law that it reasonably informs a person of what conduct is prohibited
particularly when the violation of the law may result in fines, imprisonment, or
both" (ACLU v. Reno, 24 Med. L. Rptr. 1379 at 10, 1996). A second suit, with 27
additional plaintiffs, was filed and the two cases were consolidated. The case
was eventually heard by a three-judge District Court before it went to the
Supreme Court in March 1997 (Reno v. ACLU, 521 U.S. 844, 1997). Because the CDA
contained a provision for "fast-track" review, the case was able to bypass the
appeals court (Djavaherian, 1998).
It is useful to note just who the plaintiffs in this case were. They were not
Internet pornographers, but rather a diverse collection of journalistic,
healthcare, educational, and computer industry groups who either feared that
their Internet speech would be restricted or who were against restricting free
speech in principle. In fact, the plaintiffs made it clear that they did not
dispute the CDA's restrictions on materials not protected by the First
Amendment, such as child pornography or obscenity (ACLU Complaint). But they
were worried that websites containing information on birth control, AIDS
prevention, or art, all of which could include references to or images of sexual
organs, would be outlawed by the Act. They pointed out that a broad reading of
the Act could be used to punish a parent for e-mailing birth control information
to his/her child. Of special interest to journalists, organizations such as the
American Society of Newspaper Editors, the National Press Photographers
Association, and the Society of Professional Journalists were plaintiffs in the
suit (Reno v. ACLU, 521 U.S. 844 at 874, 875, 1997).
PART II: Court Decisions
A. The District Court
The District Court decided the case on June 11, 1996, finding the Communications
Decency Act facially unconstitutional. The written opinion included a lengthy
discussion of the nature of cyberspace, the accessibility of the Internet,
content-blocking software, sexually explicit material on the Internet, and
age-verification techniques. This analysis would prove to be very important to
the Supreme Court's eventual decision. Judges Dolores Sloviter, Ronald
Buckwalter, and Stewart Dalzell filed separate opinions focusing on different
aspects of the case.
Judge Sloviter, from the United States Court of Appeals for the Third Circuit,
was concerned with the expansive reach of the CDA. She stated in her opinion,
"Whatever the strength of the interest the government has demonstrated in
preventing minors from accessing 'indecent' and 'patently offensive' material
on-line, if the means it has chosen sweeps more broadly than necessary and
thereby chills the expression of adults, it has overstepped onto rights
protected by the First Amendment" (ACLU v. Reno, 929 F. Supp. 824 at 925, 1996).
She agreed with the plaintiffs that the CDA's provisions could be used to censor
material that is widely considered educational, artistic, or newsworthy.
Additionally, what one community might consider educational, another could
consider indecent under the vague terms of the Act. She concluded, "The CDA is
patently a government-imposed content-based restriction on speech, and the
speech at issue, whether denominated 'indecent' or 'patently offensive,' is
entitled to constitutional protection" (ACLU v. Reno, 929 F. Supp. 824 at 919,
1996).
Judge Buckwalter, from the United States District Court for the Eastern
District of Pennsylvania and the judge who issued the temporary restraining
order on the CDA, again argued that the language used in the Act was "so vague
as to violate both the First and Fifth Amendments" (ACLU v. Reno, 929 F. Supp.
824 at 944, 1996). He stressed, "In statutes that break into relatively new
areas . . . the need for definition of terms is greater, because even commonly
understood terms may have different connotations or parameters in this new
context" (ACLU v. Reno, 929 F. Supp. 824 at 965, 1996). Additionally, he was
not convinced that the age-verification systems that the Act would require
"indecent" Internet content providers to use would be affordable or effective.
He feared that cost of the systems would keep many people from expressing
themselves through the Internet and would not keep minors from accessing truly
obscene material.
Judge Dalzell, also of the United States District Court for the Eastern
District of Pennsylvania, was particularly bothered by the Government's lack of
consideration for the special characteristics of the Internet. He stated that a
"medium-specific approach to mass communication examines the underlying
technology of the communication to find the proper fit between First Amendment
values and competing interests" (ACLU v. Reno, 929 F. Supp. 824 at 995, 1996).
In his opinion, the Government had assumed that "what is good for broadcasting
is good for the Internet" (ACLU v. Reno, 929 F. Supp. 824 at 998, 1996). He
refuted the Government's claim that indecent material would keep people away
from the Internet. He predicted that as adults find their speech prohibited,
the "worldwide dialogue that is the strength and signal achievement of the
medium" will diminish (ACLU v. Reno, 929 F. Supp. 824 at 1013, 1996). He
concluded that the "CDA will, without doubt, undermine the substantive,
speech-enhancing benefits that have flowed from the Internet" (ACLU v. Reno, 929
F. Supp. 824 at 1011, 1996).
In light of this decision, the Government appealed the case to the Supreme
Court. The two sides had their day in court on March 19, 1997.
B. The Supreme Court
The Supreme Court decided the case on June 26, 1997. With a 7-2 majority, the
Court found the Communications Decency Act in violation of the First Amendment.
The Court recognized the "legitimacy and importance of the congressional goal of
protecting children from harmful materials," but could not ignore the problems
inherent in the Act (Reno v. ACLU, 521 U.S. 844 at 854, 1997). Because Reno v.
ACLU is the first Internet case to have reached the Supreme Court, a careful
examination of the reasoning behind the Court's decision is warranted. Our
legal system will face many more Internet cases and the precedents set in Reno
v. ACLU will guide future decisions. Communications professionals should be
aware of the implications of this case.
The oral argument for Reno v. ACLU took place on March 19, 1997. Seth Waxman,
deputy solicitor general, represented the appellants, while Bruce Ennis argued
on behalf of the appellees. During Waxman's presentation, the justices
questioned him in detail about the cost of implementing an age-verification
system on a website. Waxman admitted that "if people like you or I . . . or
nonprofit organizations wanted to create their own adult verification system it
would be unduly expensive" (Oral Arguments). They also spent time discussing
hypothetical situations in which the CDA could be used, such as teenagers
discussing their sexual experiences via e-mail, the Carnegie Library displaying
its card catalogue on-line, and parents allowing their children to view indecent
material on a home computer. In many of the hypotheticals, Waxman asserted that
the courts could construe the Act very narrowly in order to prevent the
prosecution of parents, librarians, or teachers. He also urged the Court to use
the Act's severability clause to invalidate only those portions that were
considered unconstitutional while preserving the rest.
In his argument, Ennis focused on the impossibility of verifying the age of
people using listservs, newsgroups, and chat rooms, which are interactive and
spontaneous forms of communication. He stated that the only type of
communication in cyberspace that could use age-verification systems is the World
Wide Web, and even then the technology is prohibitively expensive for most site
operators. Justice Scalia pointed out that the Court has upheld broadcast and
print laws that prohibit dissemination of indecent speech, either by requiring
prohibitively expensive equipment or regulating the location of distribution.
Ennis maintained that parents can effectively control their children's Internet
access through blocking software. He pointed out that these forms of parental
control are more effective than any that are available for broadcast television,
cable, or telephone.
In their questioning of both lawyers, the justices were interested in a few key
issues. First, why is the Internet any different from other forms of
communication? Justice O'Connor likened the Internet to a "street corner or a
park" (Oral Arguments). Justice Breyer said, "The Internet is rather like the
telephone." Second, just how prohibitive are the costs of Internet
age-verification systems? Chief Justice Rehnquist stated that the terms Ennis
was using ("prohibitively expensive" and "economically prohibitive") were
value-laden terms and needed more explanation than had been given previously.
Justice Scalia wanted to know if the benefits gained through the
age-verification systems were more important than the speech that would be
censored. Third, are there effective alternate means of keeping minors away
from indecent material? Chief Justice Rehnquist was intrigued by the appellees'
assertion that there existed "a less restrictive, more effective means" of
keeping children away from indecent Internet content. Justice Scalia wondered
if the CDA might be constitutional at some time in the future, when technology
had changed. Fourth, could the CDA be more narrowly tailored by severing
certain parts that are deemed unconstitutional? Justice Breyer brought up the
possibility of limiting the Act to punish "people who make significant amounts
of money out of selling pornography across the Internet." Chief Justice
Rehnquist argued that the term "patently offensive" could be defined more
narrowly, thus saving the Act.
A review of the defenses the Government used in its case is also important for a
complete understanding of the issues surrounding Internet regulation. As will
be discussed in Part III, Congress has already drafted new legislation to
replace the defeated CDA. The arguments used in the Reno v. ACLU case provide
insight into the Government's tactics and reasoning.
The Government relied upon precedents set in three cases: Ginsberg v. New York,
FCC v. Pacifica Foundation, and Renton v. Playtime Theatres, Inc. In Ginsberg,
the Supreme Court upheld the constitutionality of a New York statute that
outlawed selling obscene material to minors, even if the material was not
considered obscene to adults. In effect, the Court said that the same material
can be obscene to one age and not to another. The Court also recognized the
government's interest in the well-being of its youth (390 U.S. 629 at 639). In
Reno v. ACLU, the Government argued that the Ginsberg precedent allowed the CDA
to restrict minors' access to materials that were constitutionally protected for
adults.
Pacifica dealt with an indecent monologue broadcast on the radio during the
afternoon, a time when children were likely to hear it. The Court established
that the context of speech could render it obscene, and therefore unprotected by
the First Amendment (438 U.S. 726 at 735). The Government argued that indecent
content was available on the Internet 24 hours a day, thus its context rendered
the material obscene and unprotected by the constitution.
In Renton, the Court upheld a zoning ordinance that kept adult movie theaters
out of residential neighborhoods. Because the ordinance sought to prevent the
secondary effects of the theaters--lowered property values and crime--rather
than the actual dissemination of the indecent material, the Court felt that it
did not abridge the First Amendment (475 U.S. 41 at 49). The Government
contended that the CDA was a type of "cyberzoning" law for the Internet, and
thus should be upheld by the Court.
The Government also set forth three other arguments for the constitutionality of
the CDA: 1) The CDA leaves intact a wide variety of "alternative channels" for
the restricted speech; 2) The "knowledge" and "specific person" requirements
narrowly define the Act because it would only punish those who purposively
transmitted indecent material to a minor; 3) Material having scientific,
educational, or other socially redeeming values fall outside of the CDA's
restrictions (Reno v. ACLU, 521 U.S. 844 at 906, 1997).
The Government's choice of cases and arguments did not convince the Supreme
Court of the constitutionality of the CDA. Writing for the Court, Justice
Stevens spelled out why each of the precedents and arguments did not apply to
the Internet. Concerning the Ginsberg precedent, the Court stated that the New
York statute was much narrower than the CDA for four reasons: it did not
prohibit parents from buying obscene materials for their children; it applied
only to commercial transactions; it was limited to material with no socially
redeeming qualities; and it applied only to persons under 17 years of age. In
contrast, the CDA does not allow for parental discretion, does not limit itself
to commercial sites, does not define "indecent" and "patently offensive"
materials as socially unredeeming, and applies to persons under the age of 18,
thus adding an additional year of restrictions (Reno v. ACLU, 521 U.S. 844 at
906-909, 1997).
The Court explained that the Pacifica precedent differed from the CDA in several
important ways. First, the Pacifica ruling applied only to the time of the
indecent broadcast, while the CDA is concerned with indecent material itself.
Second, the Federal Communications Commission, a body with a long history of
dealing with broadcast issues, created the sanctions placed on the Pacifica
Foundation. The CDA, on the other hand, was written by Congress, which has had
no previous legislative experience with the Internet. Third, radio is a very
different medium from the Internet. There is a much higher chance of a minor's
coming upon an indecent broadcast by accident than coming upon indecent material
on the Internet. Internet users must take a series of affirmative steps to
access material. And finally, the ruling in Pacifica was not punitive, as are
the punishments in the CDA.
The justices seemed especially perplexed at the reasoning behind the use of the
Renton case in the Government's defense. The Renton decision applied to a
specific type of residential area, while the CDA sought to regulate the entire
Internet. Additionally, the Renton ruling sought to protect neighborhoods from
the secondary effects of indecent speech. The CDA was concerned with protecting
minors from the primary effects of "indecent" and "patently offensive" speech.
The Court also denied the validity of the Government's three other arguments.
The Court deemed unpersuasive the Government's contention that the CDA left open
a wide variety of alternative channels of communication for persons wishing to
access indecent material on the Internet. In writing for the Court, Justice
Stevens asserted that "the CDA regulates speech on the basis of its content. A
'time, place, and manner' analysis is therefore inapplicable" (Reno v. ACLU, 521
U.S. 844 at 906, 1997). He also stated that the prohibitive cost of the
necessary age-verification systems would have the same effect as telling someone
that they could not publish leaflets, but could print a book. The Court also
said that it wold be impossible to enforce the CDA because "even the strongest
reading of the 'specific person' requirement would confer broad powers of
censorship" (Reno v. ACLU, 521 U.S. 844 at 908, 1997). Finally, the Court found
no textual support for the Government's claim that the CDA would not be used to
prosecute content providers whose material had "scientific, educational, or
other redeeming social value" (Reno v. ACLU, 521 U.S. 844 at 908, 1997).
The Supreme Court agreed with the District Court's reasoning in regard to the
Government's significant interests in the Communications Decency Act. In answer
to the argument that offensive material is driving away potential Internet
users, the Supreme Court stated that "the dramatic expansion of this new
marketplace of ideas contradicts the factual basis of this contention" (Reno v.
ACLU, 521 U.S. 844 at 916, 1997). The Court also said that the Government's
interest in protecting minors from "indecent" and "patently offensive" content
had to be balanced with the loss of First Amendment freedoms. In his opinion,
Justice Stevens stated, "The interest in encouraging freedom of expression in a
democratic society outweighs any theoretical but unproven benefit of censorship"
(Reno v. ACLU, 521 U.S. 844 at 917, 1997). A 7-2 majority affirmed the
judgement of the District Court and deemed the Communications Decency Act
unconstitutional.
Justice O'Connor, joined by Chief Justice Rehnquist, made up the dissenting
minority in Reno v. ACLU. They concurred in part and dissented in part to the
majority's decision. In writing for the minority, Justice O'Connor asserted
that while the constitutionality of the CDA as a zoning law could not be upheld
because it would unnecessarily restrict the First Amendment rights of adults,
she did feel that the "indecency transmission" and "specific persons" provisions
could be upheld insofar as they applied to Internet communications in which the
sender knew that all recipients were minors. Therefore, she did not agree that
the CDA was unconstitutional on its face (Reno v. ACLU, 521 U.S. 844 at 935,
1997).
PART III: The Future
A. Implications for Communicators
Free speech advocates celebrated the Supreme Court's decision in Reno v. ACLU as
a triumph of the First Amendment. Bruce Ennis, the lead lawyer for the
appellees, called the decision a "legal birth certificate for the Internet"
(Levy, 1997). At a rally held in San Francisco on the day of the decision, a
lawyer for the Electronic Frontier Foundation, one of the appellees in the case,
proclaimed, "Let today be the first day of a new American Revolution--a Digital
American Revolution!" (Quittner, 1997). The text of the Court's opinion was
available on-line minutes after it was released and the audio portion of an ACLU
news conference was broadcast over the Internet (Quittner, 1997).
Aside from the First Amendment protection the Supreme Court granted to the
Internet, free-speech advocates viewed Reno v. ACLU as a turning point for the
Court in another way. Many Court observers had feared that the justices' lack
of computer savvy might prevent them from understanding the true nature of the
issues involved in the case. They had reason to fear because the justices had
shown great resistance to new technology. The Supreme Court has no official
website, bars television from the courtroom, still hands out quill pens to
lawyers, and Justice Souter won't even allow personal computers in his chamber.
In the words of one reporter, writing before the oral arguments, "The future of
the Internet is in the hands of a Supreme Court that revels in the past" (Mauro,
March 1997).
The justices realized that their lack of knowledge would inhibit their ability
to make a fair decision. Justice Souter had written earlier, "In my ignorance,
I have to accept the real possibility that if we had to decide today just what
the First Amendment should mean in cyberspace, we would get it fundamentally
wrong" (Mauro, December 1997). But by the time the Court heard Reno v. ACLU,
they had overcome their ignorance. During questioning, Justice O'Connor brought
up the new GCI script technology, which allows website providers to determine
the ages of users, and Justice Stevens, the oldest member of the Court at 76
years, asked knowledgeable questions about tagging mechanisms (Official
Transcript). As can be seen in their written opinion, the justices had
carefully studied the information the District Court had gathered about the
nature of the Internet. They also had read other scholarly opinions on the
medium, such as "Reading the Constitution in Cyberspace," an essay by Havard law
professor Lawrence Lessig (Reno v. ACLU, 521 U.S. 844 at 923, 1997). The
Supreme Court brought itself into the computer age by necessity, and is now
ready for the onslaught of Internet-related cases that are sure to come before
it in the near future. Future parties in Internet cases can be assured that the
Court will have an understanding of the issues surrounding this new medium.
While the plaintiffs and their supporters clearly had much to celebrate, the
case was not a clear-cut victory for the future of the Internet. The Court, in
its focus on the vague and sweeping nature of the CDA's language, left open the
possibility that a more narrowly tailored law could pass constitutional muster.
The justices also recognized that the government has a compelling interest in
protecting children from obscene material on the Internet, but felt that the CDA
was far too restrictive on protected adult speech. CDA supporters are using the
Court's objections as a guide in formulating new legislation to regulate the
Internet. In the words of Bob Flores, senior counsel of the National Law Center
for Children and Families, "The opinion gives us a good road map to what the
courts will allow" (Quittner, 1997).
B. New Federal Internet Legislation
Congress has already put these lessons to use in creating the Child On-line
Protection Act (COPA). Widely known as "Son of CDA" or "CDA II," the bill was
signed into law by President Clinton on October 21, 1998 (Raysman and Brown,
1998). Rep. Michael Oxley (R-Ohio), COPA's sponsor, "read that (Supreme Court)
opinion dozens upon dozens of times" in an effort to create a law that would
pass constitutional muster (Albiniak, 1998).
COPA is a much more narrowly tailored piece of legislation than the CDA. It
reads in part:
"Whoever knowingly and with knowledge of the character of the material, in
interstate or foreign commerce by means of the World Wide Web, makes any
communication for commercial purposes that is available to any minor and that
includes any material that is harmful to minors shall be fined not more than
$50,000, imprisoned not more than six months, or both" (47 U.S.C. 231).
According to Congress, a person who communicates for "commercial purposes" is
defined as anyone who "is engaged in the business of making such communication"
(47 U.S.C. 231). Private Internet users are not affected by COPA, unlike the
CDA. Additionally, COPA defines minors as anyone under 17 years of age, whereas
those under 18 were considered minors under the provisions of the CDA.
The major argument against the CDA was the vague nature of the terms "indecent"
and "patently offensive," as well as the broad prohibition against picturing or
discussing "sexual or excretory organs." The courts were also concerned with
the lack of exceptions for socially redeeming material, such as art or
educational information. In COPA, commercial content providers are prohibited
from:
"depict[ing], describ[ing], or represent[ing], in a manner patently offensive
with respect to minors, an actual or simulated sexual act or sexual contact, an
actual or simulated normal or perverted sexual act, or a lewd exhibition of the
genitals or post-pubescent female breast; and taken as a whole, lacks serious
literary, artistic, political, or scientific value for minors" (47 U.S.C. 231).
COPA also includes a provision exempting content carriers, such as American
Online or Netscape, as long as they have not altered the content of the indecent
communication. Indecent sites that make a "good-faith effort" to restrict
minors' access through the use of an adult access code, credit card
verification, or other age verification techniques have an affirmative defense
against COPA's penalties. Additionally, the Act places restrictions on the type
of personal information website operators can collect during age-verification
procedures and requires Internet providers to notify customers of the existence
of parental control devices that can restrict access to indecent and obscene
sites. The Act also established the Commission on Online Child Protection,
which will explore a wide variety of methods to restrict minors' access to
harmful Internet materials (47 U.S.C. 231).
Despite the lessons from CDA, the Child On-line Protection Act has already been
challenged in court. On October 22, 1998, one day after President Clinton
signed COPA into law, a coalition of civil liberties groups and website
providers filed suit in a federal district court in Philadelphia in order to
enjoin enforcement of COPA (Sutin and Goldberg, 1998). The ACLU and other
plaintiffs had three complaints about COPA: 1) It burdens speech that is
constitutionally protected for adults; 2) It violates the First Amendment rights
of minors; 3) It is unconstitutionally vague under the First and Fifth
Amendments (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at 745, 1999). The
defendant claimed that COPA was narrowly tailored "to the government's
compelling interest in protecting minors from harmful materials" (ACLU v. Reno,
1999 U.S. Dist. LEXIS 735 at 746, 1999). Additionally, the defendant argued
that the Act does not prohibit adults from accessing indecent material, contains
affirmative defenses, targets only commercial pornographers, and would not apply
to the plaintiffs' websites.
On November 20, 1998, District Judge Lowell Reed issued a temporary restraining
order because the plaintiffs were able to prove the following: a likelihood of
success on the merits of their case, irreparable harm to themselves if the Act
were allowed to be enforced, less harm to the defendant if the injunction were
issued than to the plaintiffs if the injunction were not issued, and public
interest (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at 754, 1999). A hearing was
then held to determine the constitutionality of COPA. The district court heard
five days of testimony and one day of arguments, and received briefs, expert
reports, and documentary evidence from each side. On January 27, 1999, Judge
Reed ended the hearing by listening to answers to 19 questions he issued to both
sides of the case. He asked both sides to give their views on the wording of
the statute, its constitutionality and scope, as well as explain technical
facets of the measure relating to the World Wide Web (Loviglio, 1999).
On February 1, 1999, Judge Reed released his written opinion on the case. In it
he reviewed facts about the nature of the Internet, as well as arguments and
expert testimonies from both sides. In his final decision, Judge Reed balanced
the "potential harm to the parties" (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at
809, 1999). He concluded "the harm to plaintiffs from the infringement of their
rights under the First Amendment clearly outweighs any purported interest of the
defendant" (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at 809, 1999).
Despite ruling to preliminarily enjoin the government from enforcing COPA, Judge
Reed expressed regret at his decision. He stated, "The protection of children
from access to harmful to minors materials on the Web_particularly resonates
with the Court. This Court . . . would like to see the efforts of Congress to
protect children from harmful material on the Internet to ultimately succeed"
[stet] (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at 810, 1999). He noted that
"perhaps we do the minors of this country harm if First Amendment protections,
which they will with age inherit fully, are chipped away in the name of their
protection" " (ACLU v. Reno, 1999 U.S. Dist. LEXIS 735 at 812, 1999). The
government now has the choice to go to trial or to appeal the preliminary
injunction to the Third Circuit U.S. Court of Appeals. Analysts predict that
whatever decision the government makes, the case is sure to go before the
Supreme Court (Kraw, 1999).
Debate about the Internet, the First Amendment, and indecent speech will go on
as long as the medium is in existence. The body of legislative and case laws
governing print, broadcast, and telephones is still evolving, even though these
media have been around for many years. The Internet issue is especially urgent
now because of the current lack of restrictions on the medium and the general
public's growing awareness of, and access to, its content. Because of the
interest in establishing some rules for the Internet by the public, the courts,
and the government, it is likely that some sort of legislation will be passed in
the future. Just how far that legislation will go in restricting the First
Amendment rights of Internet content providers and users remains to be seen.
But, as can be seen through the cases detailed in this paper, efforts by the
ACLU and others ensure that the wishes of the majority will not completely drown
out the voices of the minority.
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