Supreme Court decision
By: John Paul Stevens
Date: June 26, 1997
Source: Stevens, John Paul. Reno v. American Civil Liberties Union. 521 U.S. 844 (1997). Available online at http://laws.findlaw.com/us/521/844.html; website home page: http://laws.findlaw.com (accessed May 5, 2003).
About the Author: John Paul Stevens (1920–) graduated from the University of Chicago and Northwestern Law School, and clerked for Supreme Court Justice Rutledge in 1947-1948. Before serving on the Court, he worked in private practice and taught at Northwestern and the University of Chicago. From 1970 to 1975, he served on the Seventh Circuit Court of Appeals. He was considered to be a moderate when appointed to the Court. However, he has more often than not aligned himself with the Court's liberal wing.
In the early American republic, control of obscenity was always done at the local level. Local and state laws defined obscenity, and federal courts, and the Constitution, were not involved. The federal government had to observe the First Amendment in its actions, but the states did not—as the Bill of Rights was not held to apply against the states. The federal government first became involved in regulating obscenity with the 1873 Comstock Act, which prohibited "obscene" materials from the interstate mails. This act was named after Anthony Comstock, an anti-vice crusader who pushed the law through because he believed that the current state laws were inadequate. The Comstock Act was enforced against the distributors of birth control information, as well as against a number of different books and magazines. None of these prosecutions violated the First Amendment, because the First Amendment did not protect obscenity or its publication. Freedom of the press was also repressed during World War I (1914–1919), as courts upheld the power of government to censor the press.
In 1925, the landscape of the freedom of the press began to change. In light of the Fourteenth Amendment, the Supreme Court stated that the First Amendment freedoms of speech and the press applied against the states, as well as the federal government. The question then became whether the First Amendment protected "obscenity." In 1942, in Chaplinsky v. New Hampshire, the court held again that obscenity was not protected. In 1955, another conviction under the Comstock Act reached the Supreme Court. The Court defined obscenity as material which lacked the "slightest redeeming social importance," and upheld the convictions. The Court also declared that "contemporary community standards" would be applied to test whether something had "redeeming social importance." This standard continued into the 1960s and 1970s, and was held to apply to radio programs, film, and television. In the 1980s and 1990s, the "community standard" continued, except that material which claimed literary or artistic value would be decided based upon a nationwide standard, rather than a community standard. By the end of the century the "community standard" rule for obscenity seemed to be firmly entrenched.
With the rise of the Internet, however, the whole issue of the "contemporary community standard" lacked relevance—people who posted materials on the Internet often had no idea where the documents would be downloaded. The rise of the Internet and the World Wide Web prompted several attempts to regulate it. One of the first was the Communications Decency Act (CDA), the issue before the court in Reno v. American Civil Liberties Union.
Reno delineated the difficulties of keeping potentially "obscene" material from youths—while noting the problems with the "contemporary community standards" doctrine used for interpreting what is obscene. The Court struck down the CDA because the act was overbroad, prohibiting both material that is not obscene, as well as prohibiting material to adults simply because it might be obscene if viewed by minors. This setback did not stop the Congress, however—"protecting the innocent children" is a favorite and well-worn political issue. Several other attempts to regulate the Internet have also been considered, and at least two have been passed. The Courts, however, have struck both, and no workable solution has been found to regulating a worldwide medium by local community standards. Politicians, though, will surely try again.
Primary Source: Reno v. American Civil Liberties Union [excerpt]
SYNOPSIS: Stevens opens by holding that one cannot verify a viewer's age on the Internet, making age-based restrictions, established by the Communications Decency Act (CDA), unworkable. He then holds that the CDA is ambiguous and vague, thus violating the First Amendment. There is no way to restrict content to minors, while not censoring it for adults. Stevens closes by noting that the CDA overly censors the Internet, destroying free expression, and is therefore, unconstitutional.
Justice Stevens delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment.…
The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." The Government offered no evidence that there was a reliable way to screen recipients and participants in such for a for age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics or other subjects that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible to block their access to that material and "still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent." …
Neither before nor after the enactment of the CDA have the vast democratic for a of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as "invasive" as radio or television. The District Court specifically found that "[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.'" … It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that "'odds are slim' that a user would come across a sexually explicit sight by accident." … We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.
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 purposes of the First Amendment. For instance, each of the two parts of the CDA uses a different linguistic form. The first uses the word "indecent," … while the second speaks of material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." … Given the absence of a definition of either term, this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech.… Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.… As a practical mat ter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area Ed.…
The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California.…
Because the CDA's "patently offensive" standard (and, we assume arguendo, its synonymous "in-decent" standard) is one part of the three prong Miller test, the Government reasons, it cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test—the purportedly analogous standard—contains a critical requirement that is omitted from the CDA: that the proscribed material be "specifically defined bythe applicable state law." This requirement reduces the vagueness inherent in the open ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and excretory nature.
The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague. Each of Miller's additional two prongs—(1) that, taken as a whole, the material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"—critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by contemporary community standards.… This "societal value" requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's contention that courts will be able to give such legal limitations to the CDA's standards is belied by Miller's own rationale for having juries determine whether material is "patently offensive" according to community standards: that such questions are essentially ones of fact.
In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.
We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.…
It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials.… But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.…
In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult to adult communication. The findings of the District Court make clear that this premise is untenable.
Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100 person chat group will be minor—and therefore that it would be a crime to send the group an indecent message—would surely burden communication among adults.
The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.…
The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value. Moreover, the "community standards" criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message. The regulated subject matter includes any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony.… It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.…
The breadth of this content based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as commercial web sites—differently than others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.
In an attempt to curtail the CDA's facial over-breadth, the Government advances three additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the Act's "knowledge" and "specific person" requirement significantly restricts its permissible applications; and (3) that the Act's prohibitions are "almost always" limited to material lacking redeeming social value.
The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities—such as chat groups, newsgroups, and mail exploders—it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web.… This argument is unpersuasive because the CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore inapplicable.… It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for database management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content—we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." …
The Government also asserts that the "knowledge" requirement … especially when coupled with the "specific child" element … saves the CDA from overbreadth.… Even the strongest reading of the "specific person" requirement of §223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child—a "specific person … under 18 years of age …"—would be present.
Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions.…
We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save an otherwise patently invalid unconstitutional provision. In Sable, … we remarked that the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.…
In this Court, though not in the District Court, the Government asserts that—in addition to its interest in protecting children—its "[e]qually significant" interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA.… The Government ap parently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.
We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
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