The First Amendment and the Internet:
United States v. Kufrovich, 997 F. Supp.246 D. Conn. 1997
In the criminal context, Reno v. ACLU’s holding that the medium of the Internet is entitled to the broadest First Amendment protections has been limited where the speech in question constitutes the crime itself or is incidental to the crime.
In Kufrovich, the defendant was prosecuted for violation two federal statutes. The first, 18 U.S.C. § 2422(b), makes illegal the use of any means of interstate commerce, including the Internet, to persuade a minor to engage in a sexual activity for which anyone may be prosecuted. The second, 18 U.S.C. § 2423(b), makes illegal travel in interstate commerce to engage in a sexual act with a minor. The defendant argued that both charges against him were based on communications made over the Internet which, he claimed, Reno v. ACLU had rendered "presumptively protected speech."
The United States District Court for the District of Connecticut readily distinguished Reno v. ACLU on the ground that Reno v. ACLU construed the CDA which regulates content on the Internet while the two statutes under which the defendant was charged do not purport to regulate the content of any speech. The court noted that "otherwise criminal conduct is not protected by the First Amendment simply because it involves the use of speech." If it were, the government would be unable to prohibit an activity that involved speech, yet laws that criminalize speech activities such as transmitting wagering information or promoting the sexual performance of a child have withstood First Amendment challenges. Like those cases, the court noted, the case before it involved a statute which does not attempt to regulate the content of speech, but simply criminalizes conduct which incidentally involves speech. The court thus ruled that the First Amendment did not prohibit the defendant’s prosecution.