Services & Software

High court rejects CDA

The Supreme Court finds the Communications Decency Act unconstitutional under the First Amendment.

By Courtney Macavinta
Staff Writer, CNET
June 26, 1997, 3:00 p.m. PT

update The Supreme Court today rejected the Communications Decency Act in a historic ruling determining the future of free speech on the Internet.

In the first test of the new medium before the high court, the justices affirmed a lower-court ruling that the CDA was unconstitutional. The CDA made it a felony to use the Net to display or send "indecent" material that could be seen by a minor.

The court supported the legislative goal of protecting children from exposure to adult material. But the 40-page ruling found that the exact provisions of the law also unconstitutionally undermined the free-speech rights of adults and harshly refuted the government's defense of the Net censorship law, which was passed as part of last year's sweeping federal telecommunications act.

Justice John Paul Stevens
"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 supresses a large amount of speech that adults have the 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."

Justice Sandra Day O'Connor
"I do not find that the provisions are overbroad in the sense that they restrict minors' access to a substantial amount of speech that minors have the right to read and view. Accordingly, the CDA can be applied constitutionally in some situations...I agree with the court that the provisions are overbroad in that they cover any and all communications between adults and minors, regardless of how many adults might be part of the audience to the communication."

President Clinton
"We will study [the] opinion closely. We can and must develop a solution for the Internet that is as powerful for the computer as the V-chip will be for television and that protects children in ways that are consistent with America's free-speech values."

Chris Hansen
"This decision is a ringing endorsement of free speech that was joined by justices who range across the full spectrum of the court."

Rep. Anna Eshoo (D-California)
"The Supreme Court has demonstrated a far better understanding of free-speech issues on the Internet than Congress did in its rush to address questionable online materials. Today's ruling erects a high legal barrier around online free speech that Congress would be wise not to attempt to breach."

The court ruled unanimously that the law's "patently offensive display" provision violates the First Amendment. This provision could have applied to speech posted on Web sites or in chat rooms.

"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 ruling stated.

It went on to say: "The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech."

Justice John Paul Stevens wrote the decision for the court.

But the court split, ruling 7-2, on the "transmission" condition, which made it a crime to "knowingly" send indecent material to someone under age 18.

Justice Sandra Day O'Connor and Chief Justice William Rehnquist wrote a separate opinion that concurred with the "patently offensive display" aspect of the ruling but dissented in part. The two justices rejected the argument that the CDA is inherently overbroad, stating that the CDA could be constitutional under some circumstances.

Even the majority decision agreed that Congress has a legitimate interest in shielding children from indecent material in cyberspace and provided guidelines for legally pursuing that goal in future legislation.

President Clinton signed the CDA into law in February 1996. The law has never been prosecuted because of ongoing legal disputes, but violators could have been sentenced to two years in prison and a $250,000 fine.

The same month the CDA became law, the American Civil Liberties Union and a coalition led by the American Library Association sued the government to block the CDA. A three-judge federal panel in Philadelphia ruled last July that the law was unconstitutional under the First Amendment. On appeal, the ACLU and ALA argued against the CDA again before the Supreme Court in March.

As opponents of the CDA had hoped, the court concluded today that broadcast content regulations used to censor obscenity do not automatically apply to the Internet: "The special factors recognized in some of the court's cases as justifying regulation of the broadcast media--the history of extensive government regulation of broadcasting--are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet."

This is the precedent that many online advocates wanted the high court to establish.

"This decision is more about free speech than technology. The ruling holds that the speech my clients engage in, such as speech about safe sex or gays and lesbians, is entitled to the highest First Amendment protection," said Chris Hansen, lead counsel for the ACLU. "This is recognition that speech over the Internet is entitled to the same First Amendment protection that books and magazines have always enjoyed," he added.

The majority opinion established several important legal points in terms of regulating online content:

  • "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 First Amendment purposes. For instance, its use of the undefined terms 'indecent' and 'patently offensive' will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean."

  • "The Government's argument that its 'significant' interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of 'indecent' and 'patently offensive' material is driving people away from the Internet."

  • "The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials," the majority opinion said. "The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the act's legitimate purposes."

    The high court flatly rejected the Justice Department's argument that the need to protect kids from online indecency supersedes an adult's right to have access to such content.

    The court also accepted the opposing argument that technology created to help parents screen online content is simply more effective than government regulation. It agreed with the lower court finding that "currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available."

    On behalf of herself and Chief Justice Rehnquist, Justice O'Connor wrote an opinion that left room open for future regulation.

    "I write separately to explain why I view the Communications Decency Act of 1996 as little more than an attempt by Congress to create 'adult zones' on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound."

    O'Connor said technological barriers can be built in cyberspace to keep kids out of pornographic areas while letting adults enter freely. "This transformation of cyberspace is already under way," she said, citing the evolution of blocking software such as Cyber Patrol and SurfWatch.

    But she hastened to add: "Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an "adult zone."

    Nevertheless, such "gateway" technology might someday be used to write zoning laws for the Internet. "The prospects for the eventual zoning of the Internet appear promising," she wrote.

    The government is likely to pursue this opening in future legislation.

    "We will study its opinion closely," said President Clinton in a statement released after the decision was issued. "The administration remains firmly committed to the provisions both in the CDA and elsewhere in the criminal code that prohibit the transmission of obscenity over the Internet and via other media...Therefore in the coming days, I will convene industry leaders and groups representing teachers, parents, and libraries."

    The ACLU's initial challenge to the CDA was filed February 8, the day that it was signed into law. The ACLU, representing nonprofit advocates for civil, human, gay and lesbian, and free-speech rights, filed the first lawsuit. The ALA filed another case on February 26, naming Internet companies, libraries, publishers, and users in the effort. The Philadelphia court quickly consolidated the two suits and lawyers from both organizations have argued the case.

    The reaction from both free-speech advocates and the computer industry was predictably buoyant.

    "The decision will probably define the First Amendment into the next century," said David Sobel, staff counsel to Electronic Privacy Information Center, which helped the ACLU fight the CDA.

    The Justice department had also appealed a ruling by a Manhattan federal court issued last summer that said the CDA is overly broad and unconstitutional. Joe Shea, editor of the American Reporter online newspaper, had argued that the law denied free speech rights to online publications that they would have if they operated in traditional printing mediums. The high court did not agree to hear the case this session.

    A CDA-like state law was also rejected last Friday by a federal court. The New York case, American Library Association vs. George Pataki, challenged the constitutionality of the state's online indecency regulation enacted last November. U.S. District Judge Loretta Preska ruled that the law was unconstitutional on the grounds that it violated the Constitution's interstate commerce clause, which forbids one state from regulating another state's commercial activity.

    Back to intro

    The law
    High court rejects CDA

    Long road to Supreme Court

    Commentary: The Supremes in cyberspace

    The future
    New version of CDA expected

    Next decency battle: libraries

    States enforce own Net laws

    The medium
    Internet isn't broadcast

    Technology no panacea

    Filtering is big business

    The people
    Video: Netizens cheer--for now

    NEWS.COM Poll: Would Net "zoning" work?

    The history
    CDA's roller-coaster ride (Dec. 26, 1996)

    50 ways to go to jail (Sept. 14. 1996)

    After CDA ruling, Net polices itself (June 15, 1996)

    Net effect of CDA unclear worldwide (May 18, 1996)

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