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The First Amendment and the Internet:

Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329 1997


In Reno, the United States Supreme Court struck down part or all of two far reaching provisions of the Communications Decency Act of 1996 ("the CDA") and in so doing established unequivocally that the medium of the Internet is entitled to the broadest First Amendment protections like traditional media such as books and newspapers, and not merely to the more limited First Amendment protections accorded broadcast media.


The first provision prohibited the knowing transmission of obscene or indecent messages to any recipient under 18. The second provision prohibited the knowing sending or displaying of patently offensive communications, defined as communications "that, in context, depict[] or describe[], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs," in a manner that is available to a person under 18.


The CDA provided two affirmative defenses to a charge of violating these provisions. One would not run afoul of these provisions provided that one had taken "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications or that one restricted access to the covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code.

The lower court, a special panel of three district and appellate court judges provided for in the statute, held that the CDA violated the First Amendment because the CDA is overbroad and violated the Fifth Amendment because the CDA is vague, and enjoined the United States government from enforcing the prohibitions of the first provision to the extent they related to "indecent" communications and to the prohibitions of the second provision in their entirety.


The Supreme Court, by a 7-2 vote, agreed with the district court panel that the CDA was indeed so vague and overbroad as to run afoul of the First Amendment. In particular, Justice Steven’s majority opinion indicated that the Court was troubled by the undefined terms and phrases used to describe the unlawful material. The Court feared that the term "indecent" as used in the first provision and the language of the second provision quoted above, given their vagueness, would provoke uncertainty among speakers about how the two standards related to each other and about what they meant: "Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by [a prior Court decision on the First Amendment], or the consequences of prison rape would not violate the CDA?"


The Court was also troubled by the breadth of the CDA’s coverage which it found to be "wholly unprecedented," noting that the undefined terms "indecent" and "patently offensive" cover large amounts of non-pornographic material with serious educational or other value. Finally, the Court expressed concern that the "community standards" criterion of the CDA meant that the nation-wide communications made possible by the Internet would necessarily be judged by the standard of the communities in America most likely to be offended by the message.


The Court was unpersuaded by the government’s argument that the CDA constituted mere "cyberzoning" akin to the zoning of adult entertainment districts which the Court had previously found constitutional, because the CDA applied to "the entire universe of cyberspace," not just a portion. The Court also rejected the argument that, even though the CDA effectively censored discourse on many of the Internet’s modalities such as chat groups, newsgroups, and mail exploders, it nonetheless was constitutional because it provided a reasonable opportunity to engage in the restricted speech on the World Wide Web on the ground that the restriction was a content-based one and thus, under prior First Amendment law, a "time, place and manner" analysis was inapplicable.


The Court also observed that the high cost required for construction of the necessary web site, database management, and an age verification system was prohibitive. The Court rejected as unfeasible the government’s argument that the burden on speech was less than it appeared because of possibilities afforded by of encoded "tags" identifying communications as inappropriate for minors to permit their blocking and verified credit card and adult identification systems. The Court noted that the proposed screening software necessary for the first approach does not even exist and the latter approaches were found to entail prohibitive cost and questionable effectiveness.


The Court conceded that the government had an interest in protecting children from harmful materials. Nevertheless, it concluded that the CDA placed an unacceptably heavy burden on protected speech and that the statute’s affirmative defenses did not constitute the sort of narrow tailoring that would save an otherwise patently invalid unconstitutional provision. Indeed, it concluded that, due to the vagueness of these provisions, the CDA would unquestionably silence some speakers whose messages are be entitled to constitutional protection. Because the Court was thus able to affirm the District Court’s decision on the basis of the First Amendment, it did not reach the Fifth Amendment issues discussed by the lower court below.

(Two lower federal court decisions similarly struck down these provisions of the CDA, Shea v. Reno, 930 F. Supp. 916 [S.D. N.Y. 1996], aff’d, U.S. , 117 S.Ct. 2501 [1997]; American Civil Liberties Union v. Reno, 929 F. Supp. 824 [E.D. Pa. 1996], aff’d, 512 U.S. 844, 117 S.Ct. 2329 [1997].

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