Introduction *

The Beginning of the CDA *

ACLU vs. Reno *

ACLU vs. Reno *

COPA *

Conclusion *

Censorship and the First Amendment. For as long as the Constitution has been in effect, these two words, and the ideas behind those words, have been hopelessly entangled. This has never been truer when, in 1996, Congress passed the Communications Decency Act (CDA). It was illustrated again when Congress passed the Child Online Protection Act (COPA) in 1998, trying again to censor the Internet to ‘what is appropriate for children.’ Again, Congress was defeated in that purpose by the Supreme Court of the United States because it was vague and overbroad like its predecessor the CDA. In the following pages, I will attempt to prove to you, the reader, just how right the Supreme Court was to strike these laws down.

The CDA began in 1995, as Senate Bill 652. Originally, this bill was to only be about the deregulation of the telecommunications industry. Then, due to the efforts of Senators James J. Exon, Dan Coats, and Charles Grassley, a passage was included at the end of the bill that dealt with ‘indecent’ speech on the Internet. That amendment, written by Exon and Coats, stated that it would ‘establish regulatory control over the content of speech in cyberspace, criminalize making available so-called "indecent" content to persons under 18, and impose other speech crimes on cyberspace users.’

When the bill went over to the House for approval, it was almost defeated. Newt Gingrich, the then Speaker of the House, even said it was unconstitutional. Then, Representative Henry Hyde made a ‘last minute "manager’s mark amendment"’ to the bill, and it was passed without most of the members even realizing that the amendment had been added. After the bill had been passed, a joint committee of both the House and Senate reconciled the two amendments, which became the heavily contested Communications Decency Act, signed into law by President Clinton in 1996. In part, the amendment reads as follows:

Thus was the attempted chilling of the Internet begun.

The American Civil Liberties Union (ACLU) on behalf of 19 other named plaintiffs filed suit against Janet Reno in February of 1996 in the Third District Federal Court of Pennsylvania. This suit challenged portions of the CDA and demanded an injunction against it. The suit also wanted the court to find the Act unconstitutional, because ‘it criminalizes expression that is protected by the First Amendment; it is also impermissibly overbroad and vague; and it is not the least restrictive means of accomplishing any compelling governmental purpose.’ The complaint goes on further to ‘assert that the Act violates the constitutional right to privacy encompassed in the First, Fourth, Fifth, and Ninth Amendments because it criminalizes private "e-mail" computer correspondence to or among individuals under the age of 18 if the correspondence is deemed "patently offensive" or "indecent."’ The suit also ‘further assert[s] that the Act in effect prohibits the right to anonymous speech, guaranteed by the First Amendment, for vast portions of the computer networks.’

The CDA is not the first attempt by the government to censor ‘patently offensive’ and ‘indecent’ speech. There are at least six other cases in which the government has tried to cast a chill over constitutionally protected speech. Those cases are Erznoznik vs. City of Jacksonville, Forsyth County vs. Nationalist Movement, Bolger v. Youngs Drug Products Corporation, Consolidated Edison Company vs. Public Service Commission of New York, and Gentile vs. State Bar of Nevada.

The city of Jacksonville, Florida had an ordinance making it ‘a public nusiance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place.’ The Supreme Court in a 6-3 decision, held that the ordinance was ‘facially invalid as an infringement of First Amendment Rights.’ In their decision, the judges of the concurring majority opinion wrote

In 1992, the Supreme Court ruled 5-4 for freedom of speech in the case of Forsyth County vs. Nationalist Movement. In this case, Forsyth County, Georgia, had an ordinance requiring that persons or organizations wishing to have ‘private demonstrations and other uses of public property’ must pay a fee for a permit, since such demonstration ‘exceeds the usual and normal cost of law enforcement, and should be borne by the participants.’ This ordinance also allows the ‘county administrator to adjust the fee’s amount to meet the expense incident to the ordinance’s administration and to the maintenance of public order.’

The Supreme Court affirmed an earlier decision of the appellate court in which ‘an ordinance which charges more than a nominal fee for using public forums for public issue speech is facially unconstitutional.’ ‘The ordinance is unconstitutionally content based, because it requires that the administrator, in order to assess accurately the cost of security for parade participants, must examine the content of the message conveyed, estimate the public response…and judge the number of police necessary to meet that response.’

This case involved the mailing of unsolicited ads for contraceptives by Youngs Drug Products Corporation that included discussions on venereal disease and family planning. According to Title 39 U.S.C. 3001(e)(2), the mailing of unsolicited ads for contraceptives are banned, which Youngs admitted that they were.

The Supreme Court found that the information included in those proposed mailings ‘not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference.’ In a 8-1 decision, the justices wrote that

This case came about when the Consolidated Edison Company sent inserts along with its monthly bills discussing controversial issues; and the NY Public Service Commission ordered Consolidated Edison to stop. Consolidated Edison sued, saying that the order stepped on their First and Fourteenth Amendment rights.

The Supreme Court agreed with Consolidated Edison, saying ‘The restriction on bill inserts cannot be upheld on the ground that appellant, as a corporation, is not entitled to freedom of speech.’ The 8-1 ruling continues with a quote from a previous case: ‘The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.’

In 1991, the state of Nevada had in place a rule for lawyers that ‘prohibits a lawyer from making extrajudicial statements to the press that he knows or reasonably should know will have a "substantial likelihood of materially prejudicing" an adjudicative proceeding…’ The Supreme Court reversed the lower courts’ ruling that the state was right in reprimanding Gentile in a 5-4 ruling.

The justices found that the rule was ‘void for vagueness. Its safe harbor provision misled Gentile into thinking that he could give his press conference without fear of discipline.’

Provision 343 of the Michigan Penal Code reads in part:

Butler was found guilty of this section after selling a book that fell under the provision to a police officer. He appealed on Fourteenth Amendment claims, and the Supreme Court in a 9-0 decision reversed his conviction. The fatal mistake of the law was that ‘by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig.’

This case originated because the FCC had drawn up legislation that would require dial-a-porn sponsors to screen out underaged callers. Sable Communications of California, a provider of ‘sexually oriented prerecorded telephone messages’ in and around the Los Angeles area, brought suit. They demanded a restraining order and an injunction against the provision’s obscenity and indecency passages, claiming it was unconstitutional under the First and Fourteenth Amendments.

The Supreme Court in an unanimous decision found that while the law was not unconstitutional referring back to the obscenity portion, it was a violation of First Amendment rights in regard to the indecency portion. ‘…The statute’s denial of adult access to such messages far exceeds that which is necessary to serve the compelling interest of preventing minors from being exposed to the messages.’

‘The plaintiffs…seek emergency relief to stop the enforcement of provisions of the Act that criminalize their expression of constitutionally protected information and ideas over computer communications systems.’ Thus began the fight for the same First Amendment protections for the Internet that the print medium currently enjoys. The introduction to the case goes on to say that the law not only bans protected First Amendment rights of minors, it also reduces the online medium’s adult population to ‘only what is fit for children.’

In the suit against the Department of Justice, the ACLU argued against two provisions of the Act specifically. Those were 47 U.S.C. § 223 (a)(1)(B) (the ‘indecency’ provision), and 47 U.S.C. § 223(d)(1) (the ‘patently offensive’ provision). The terms ‘patently offensive’ and ‘indecency’ aren’t further defined in these provisions, leaving the plaintiffs to guess at what Congress meant when drawing up the Act.

In order to illustrate just how terrible this proposed censorship would be, the brief explains as best as possible the nature of the Internet, and how it works. Also, to better visualize the process, the prosecution wired the courtroom for Internet access.

The basic thrust of this line of offense was to show the judges two important things: ‘Users must seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage; and online systems provide users with a multitude of options for controlling and limiting, if desired, the kinds of information they access through the networks.’

There were other important points to the offense raised by the prosecution, especially in the area of how the Internet should be viewed in regard to First Amendment protections. First, the Internet is not controlled nor owned by any one person or entity. Online providers ‘have little prior control over the content of their subscribers’ email or the speech that takes place in their simultaneous chat rooms.’

Internet users are radically different from the audiences of broadcast because not only do Internet users receive information, they can respond to that information to a worldwide audience. There is no scarcity of broadcast stations in cyberspace; anyone can purchase the necessary items needed to connect to the Internet and announce his/her opinions to the world. Therefore, ‘the effect of censorship is thus much broader than on radio and television, which have a limited and identifiable number of producers; it is even broader than print because information travels instantaneously across national boundaries.’

There are also screening applications and software available to parents, businesses, and schools that can block access to certain sites, and monitor the use of the Internet. Since there is no way to ascertain how old a user is on the Internet, these programs are used by the parent to prevent a child from accessing sites that the parent feels are inappropriate for his/her children to see.

Because of these facts, the plaintiffs argued that they had more than satisfied the requirements (plaintiffs likely to prevail on merits, plaintiffs will suffer irreparable harm, potential harm to defendants does not outweigh possible harm to plaintiffs, and it is not against public interest) for getting a temporary restraining order against the Act.

If the CDA were to have taken effect, the plaintiffs and others would have either had to self-censor or undertake the costly alternatives named in the Act as acceptable for avoiding a suit. If they chose ‘not to self-censor or [were] unable to apply the statute’s vague and overbroad terms [would] face the risk of criminal prosecution…By doing so, [banning the contested speech] they would deprive the plaintiffs, their members, and those who use their online resources of the ability to communicate about important issues.’

The prosecution hit the mark of the scope of what the Act entailed with these statements: ‘The "indecency" and "patently offensive" standards…are unconstitutional because they criminalize constitutionally protected expression. …The "indecency" and "patently offensive" provisions…are unquestionably content-based bans…upheld only when they are justified by "compelling" governmental interests and "narrowly tailored" to effectuate those interests.’

When Senator Exon was leading the debate in Congress, he waved around a "blue book" full of pornographic images, claiming that they were just a click away from the startup screens of Internet providers. Pornography in all mediums is already illegal, and certainly considered "obscene." ‘Yet, "indecency" (unlike obscenity) is constitutionally protected speech that often has substantial social value. …the Act targets any reference to sexual activity of body parts that is considered "offensive," even if the ideas or information in question undeniably has serious literary, artistic, scientific, or educational value.’

The statute also was not the "least restrictive means" to clear away "indecency" from the Internet. ‘…Because of the nature of the online medium, even a total ban will be ineffective at ridding online networks of "indecent" or "patently offensive" material, …[because] cyberspace is a global medium.’ That is, Internet users can go anywhere in the world at the click of a mouse, and ‘online users and content providers in other countries may not even know of the law and are unlikely to follow it in any event.’

‘Vague laws violate two fundamental principles of due process: (1) they leave the public guessing as to what actions are proscribed; and (2) they invide arbitrary and discriminatory enforcement by giving unbridled discretion to law enforcement officers.’ The term "indecency" is a flagrant example of the above principles. Different people have different views on what indecency entails, and there is no way to reconcile everyone’s views to make a national standard. Trying to define indecency as something that is "patently offensive" falls prey to the same reasoning. "Contemporary community standards" do nothing to resolve the vagueness issue because what one community tolerates, another could ban totally. Is it fair, then, to impose the more restrictive community’s views on the less restrictive one? These terms ‘give unbridled discretion to prosecutors and invite the worst type of arbitrary and viewpoint-discriminatory censorship actions. …For prosecutors to be allowed to prosecute persons or organizations using such vague standards is to invite the most serious kind of constitutional harm.’

Another problem with the Act is that it also trampled on the First Amendment rights of minors. ‘The Supreme Court has ruled in many context that the First Amendment protects minors as well as adults; and that minors have the constitutional right to speak and to receive the information and ideas necessary for their intellectual development and their participation as citizens in a democracy…’

There are two ways that the statute could reduce the rights of minors. In order to prevent minors from seeing "patently offensive" or "indecent" things, online providers would essentially have to make two versions for their websites: one for minors, and the other for adults. ‘Minors would have to be completely excluded from online public spaces to ensure that adult users and information providers could post material they are constitutionally entitled to post.’ The second way that the statute burdens minors’ First Amendment rights is that minors have a right ‘to ideas and information about sexuality, reproduction, and the human body…’

Along with taking away minors’ rights, the Act also infringed on the First Amendment rights of adults. A total ban on "indecent" and "patently offensive" speech would have restricted the online world to what was permissible for children. Screening users to find out their age would take away the right to access information anonymously. ‘…Compelled disclosure of identity may unconstitutionally deter the exercise of First Amendment rights.’ It also makes no sense if what is banned online a person can get through the print medium with no fear of possible prosecution.

‘Plaintiffs face suppression of constitutionally protected speech.’ There is no greater loss than the loss of constitutional rights, which is exactly what the Act banned. No one should have to censor themselves because they are afraid of prosecution from overzealous attorneys taking full advantage of a unconstitutionally vague and overbroad law. The government does not have a controlling interest in shielding minors from what they can get in print, and have the right to see.

‘There is no public interest in suppressing constitutionally protected speech or in reducing all speech in the promising new online medium to a level considered by the government to be acceptable for minors.’ In fact, the public interest is best served by allowing parents to decide what their children should see, and not have the government dictate to us what is acceptable or not.

On June 11, 1996, a three-judge panel comprised of Chief Judge Dolores K. Sloviter, Judge Ronald J. Buckwalter, and Judge Stewart Dalzell unanimously found the Communications Decency Act unconstitutional and granted the preliminary injunction to stop its enforcement.

The government promptly appealed to the Supreme Court, arguing that ‘the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague.’ But, on June 27^th, 1997, the Supreme Court in a 7-2 decision rejected the CDA as unconstitutional.

So a victory was won that day for the First Amendment. But the government would not be put off so easily. October 23, 1998: Congress passed the Child Online Protection Act (COPA), which attempted to again chill free speech on the Internet.

As with its predecessor the Communications Decency Act, COPA attempted to ban ‘material harmful to minors’ from the Internet. But, instead of going after "indecent" and "patently offensive" speech everywhere, the COPA specifically targeted providers of information who were in business. It didn’t matter if the corporations involved did not charge for their speech over the Internet: they just had to make a profit from other interests.

In part, the COPA reads thusly:

Again, the ACLU filed suit against the government to prevent this law from taking effect.

The ACLU suit asked the court to find the COPA unconstitutional under both the First and Fifth Amendments. In the preliminary statement, the suit states: ‘Under the Act, any speech that some community might consider to be "harmful to minors"… is potentially criminal if displayed for free on the World Wide Web… and accessible to minors.’ The complaint goes on to explain that ‘the Act does not restrict the sale of speech on the Web. …the Act explicitly and purposefully bans a wide range of protected expression that is provided for free on the Web by organizations and entities who happen to be communicating on the Web "for commercial purposes."’

The problems raised by the suit were basically the same as the concerns in ACLU vs. Reno I. Again, the COPA tried to restrict a wide range of speech constitutionally protected for adults. It was vague in defining what material ‘was "harmful to a very young minor and material that may be "harmful" to older minors,’ what kind of community would be used in determining the standard for the "harmful to minors" part, and it did not define how to consider a work "as a whole" when the Internet is a ‘seamless, interconnected set of texts, sound and graphics provided by different content providers and located on different computers around the world.’

The impact on the content providers would have been extreme. The Act was aimed expressly at content providers who provided their content for free. The defenses provided in the Act were unavailable options for the providers: most cost money that those providers could not justify spending, or did not have the money required to spend. The point was also raised that the requirement of having age verifications or credit card verifications was that it would require the user to give up his/her anonymity in order to access the information, possibly deterring that user from entering the site. Again, the plaintiffs urged the use of screening and blocking programs as a reasonable and alternative means to the Act.

On Monday, February 1, 1999, Judge Lowell A. Reed ruled that the COPA was unconstitutional under the First Amendment, and granted the preliminary injunction against it.

As of yet, Janet Reno has not appealed this decision to the Supreme Court or asked for a trial in the District Court.

‘Congress shall make no law…abridging the freedom of speech.’ Even in the global medium of cyberspace, this fundamental right holds true. The courts, recognizing that everyone has the right to speak, even if that speech is unpopular, have upheld the First Amendment, and given the same protections to cyberspace that the print medium currently enjoys. Simply because some speech is "indecent" or "harmful to minors" by some standards does not entitle anyone to suppress that speech or to require that the speaker censor him/herself. Because of these important decisions, this phrase can be heard around the world: ‘Let freedom ring!’

1. America (My Country, ‘Tis of Thee). Smith, Samuel F. http://www.hymnsite.com/lyrics/umh697.sht
2. First Amendment. Introduction to Law, pg. i.
3. ACLU v. Reno II Decision. Reed, Judge Lowell A. http://www.nylj.com/links/aclureno.html
4. ACLU v. Reno II Complaint. http://www.aclu.org/court/acluvrenoII_complaint.html
5. Child Online Protection Act. http://www.cdt.org/legislation/speech/copa.html
6. Supreme Court Decision in Reno v. ACLU. Stevens, Justice. http://supct.law.cornell.edu/supct/html/96-511.ZO.html
7. ACLU Memorandum of Law. http://www.aclu.org/court/cdacom2.html
8. Butler v. Michigan, 352 U.S. 380 (1957) http://findlaw.com
9. Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989) http://findlaw.com
10. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) http://findlaw.com
11. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) http://findlaw.com
12. Consolidated Edison Company v. Public Service Commission, 447 U.S. 530 (1980) http://findlaw.com
13. Bolger v. Youngs Drug Products Corporation, 463 U.S. 60 http://www.findlaw.com
14. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) http://www.findlaw.com
15. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) http://www.findlaw.com
16. ACLU Complaint. http://www.aclu.org/courts/cdacom.html
17. Communications Decency Act. http://www.cdt.org/policy/freespeech/12_21.cda.html
18. The Religious Right and Internet Censorship. Wallace, Jonathan. http://www.spectacle.org/cda/rr.html
19. ACLU Cyber-Liberties Letter. Murphy, Laura W. http://www.aclu.org/congress/cybrltr.html