FAQs

Can the government regulate access to information on the Internet?

Not according to the Supreme Court’s decision in Reno v. ACLU.

"Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials," the Court declared Congress’s attempt to regulate access via the 1996 Communications Decency Act (CDA) was unconstitutional.

The CDA would have made it a crime, punishable by up to two years in prison and/or a $250,000 fine, for anyone to engage in Internet speech that is "indecent" or "patently offensive" if the speech could be viewed by a minor.

The day after Congress passed the CDA, the American Civil Liberties Union—representing a coalition of 20 plaintiffs—and Joe Shea, editor of an online newspaper, filed separate suits against the government challenging the new law’s constitutionality. The ACLU’s suit was filed in the U.S. District Court for the Eastern District of Pennsylvania and Shea’s in the Southern District of New York. The federal government appealed the Pennsylvania decision, but the Supreme Court upheld the three-judge District Court’s ruling on June 26.

Why did the Supreme Court find the CDA unconstitutional?

Justice John Paul Stevens, who wrote the majority opinion, agreed with the Pennsylvania District Court that the CDA abridges the freedom of speech protected by the First Amendment.

First, the Court noted that none of its earlier decisions had set a precedent that would require the CDA—"a content-based blanket restriction on speech"—to be upheld. In a 1975 decision, for example, the Court had found that different mediums of expression may present their own problems and thus result in varying degrees of constitutionally permissible regulation. For example, the broadcast medium is one that has traditionally received extensive government regulation, partly because of the scarcity of available frequencies and the "invasive" nature of broadcast.

The Internet, however, is not analogous to the broadcast medium, according to the Court. The Court noted that the Internet has not been subject to similar government supervision and is not as "invasive" as radio or television. Nor can the Internet be deemed a "scarce" expressive commodity.

"This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue," Stevens wrote. "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it would from any soapbox."

The Court also noted that the wording and criminal penalties of the CDA raised serious First Amendment concerns. Specifically, the Court found that because "indecent" and "patently offensive" were not defined within the statute, "large amounts of nonpornographic material with serious educational or other value" would be subject to censorship. The Court also noted that, besides being vague, the CDA’s criminal penalties (including the possibility of prison time and large fines) would only increase the chances that many speakers would remain silent instead of risking possible prosecution—thus effectively chilling speech in cyberspace.

Why does the First Amendment protect indecent and offensive speech?

The First Amendment protects speech that is loathed as well as speech that is appreciated. The Supreme Court has never ruled that the government can constitutionally ban indecent or sexually explicit, non-obscene speech.

In a 1957 Supreme Court decision, Justice Brennan noted that many types of speech receive First Amendment protection: "All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the First Amendment guarantees ...."

There are, however, categories of speech which the Supreme Court has found to be unprotected by the First Amendment. These include libelous words, words that advocate illegal conduct, and words that incite violence. Likewise, "obscene" speech enjoys no First Amendment protection, since its prurient sexual content lacks serious literary, artistic, political, or scientific value. Speech which includes a prurient sexual content—such as hard-core pornography—goes beyond the kind of sexual expression which may be deemed merely indecent.

Indecent or patently offensive speech can be regulated in the broadcasting medium. In a 1978 Supreme Court case, the Federal Communications Commission (FCC) was given the constitutional authority to regulate (but not ban) "indecent" content only because of what the Court called the "scarcity" of broadcast frequencies and the "pervasiveness" of the broadcast medium. Therefore, pursuant to the 1978 Supreme Court case, the FCC can create constitutional legislation that forces broadcasters to restrict allegedly indecent programs to times of the day when children are less likely be listening or watching.

In 1989, the Supreme Court again addressed the issue of indecent speech. In Sable Communications, Inc. v. FCC, 492 U.S. 115, the Court found unconstitutional a federal statute which totally banned "dial-a-porn." Justice White, writing for the majority, noted that: "Sexual expression which is indecent but not obscene is protected by the First Amendment."

Judge Dalzell, one of the three justices who wrote an opinion in ACLU v. Reno, stated that the government should continue to protect speech, even that which occurs on the Internet.

"Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar—in a word, ‘indecent,’ in many communities," Dalzell wrote. "But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates."

How will Congress attempt to regulate indecent material that appears on the Internet?

Justice John Paul Stevens noted in the Supreme Court decision regarding the CDA that not all content-based regulations on speech violate the First Amendment.

On June 26, the day the Court found the CDA unconstitutional, Senator Patty Murray (D-Wash.) announced she will soon introduce the Childsafe Internet Act of 1997, a plan to help keep harmful material away from children on the Internet. Murray’s proposed bill does not include criminal penalties for the transmission of indecent or patently offensive material but instead requires Internet Service Providers (ISPs) to include software that filters out "pornographic" material when they provide Internet services to customers.

The Murray bill does, however, create criminal penalties similar to those found in the now-defunct CDA for any person who "enters an area specifically designated as safe for children and intentionally posts ... any indecent comment, request, suggestion, proposal, or image."

In addition, several other members of Congress had earlier said that if CDA was invalidated, they would begin work on another attempt to regulate speech on the Internet, according to the public policy group Media Institute, a CDA supporter.

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