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Update on the recent supreme court decision about

From the Legal Information Institute and Project Hermes
[Other parts of the opinion, WordPerfect versions, and related documents]
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(Bench Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL

LIBERTIES UNION et al.

appeal from the united states district court for
the eastern district of pennsylvania

No. 96-511. Argued March 19, 1997 -- Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to
protect minors from harmful material on the Internet, an international
network of interconnected computers that enables millions of people to
communicate with one another in "cyberspace" and to access vast amounts of
information from around the world. Title 47 U. S. C. A. ?223(a)(1)(B)(ii)
(Supp. 1997) criminalizes the "knowing" transmission of "obscene or indecent"
messages to any recipient under 18 years of age. Section 223(d) prohibits
the "knowin[g]" sending or displaying to a person under 18 of any message
"that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities
or organs." Affirmative defenses are provided for those who take "good
faith, . . . effective . . . actions" to restrict access by minors to the
prohibited communications, ?223(e)(5)(A), and those who restrict such access
by requiring certain designated forms of age proof, such as a verified credit
card or an adult identification number, ?223(e)(5)(B). A number of plaintiffs
filed suit challenging the constitutionality of ??223(a)(1) and 223(d). After
making extensive findings of fact, a three judge District Court convened
pursuant to the Act entered a preliminary injunction against enforcement of
both challenged provisions. The court's judgment enjoins the Government from
enforcing ?223(a)(1)(B)'s prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited
therein. The injunction against enforcement of ?223(d) is unqualified
because that section contains no separatereference to obscenity or child
pornography. The Government appealed to this Court under the Act's special
review provisions, 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.

Held: The CDA's "indecent transmission" and "patently offensive display"
provisions abridge "the freedom of speech" protected by the First
Amendment. Pp. 17-40.

(a) Although the CDA's vagueness is relevant to the First Amendment
overbreadth inquiry, the judgment should be affirmed without reaching the
Fifth Amendment issue. P. 17.

(b) A close look at the precedents relied on by the Government--Ginsberg v.
New York, 390 U.S. 629; FCC v. Pacifica Foundation, 438 U.S. 726; and Renton
v. Playtime Theatres, Inc., 475 U.S. 41 raises, rather than relieves, doubts
about the CDA's constitutionality. The CDA differs from the various laws and
orders upheld in those cases in many ways, including that it does not allow
parents to consent to their children's use of restricted materials; is not
limited to commercial transactions; fails to provide any definition of
"indecent" and omits any requirement that "patently offensive" material lack
socially redeeming value; neither limits its broad categorical prohibitions
to particular times nor bases them on an evaluation by an agency familiar
with the medium's unique characteristics; is punitive; applies to a medium
that, unlike radio, receives full First Amendment protection; and cannot be
properly analyzed as a form of time, place, and manner regulation because it
is a content based blanket restriction on speech. These precedents, then, do
not require the Court to uphold the CDA and are fully consistent with the
application of the most stringent review of its provisions. Pp. 17-21.

© 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, see, e.g., Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 399-400; the scarcity of available frequencies at its inception,
see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638;
and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492
U.S. 115, 128--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. Pp. 22-24.

(d) 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 vagueness of such a content based regulation, see, e.g.,
Gentile v. State Bar of Nev., 501 U.S. 1030, coupled with its increased
deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380
U.S. 479, raise special First Amendment concerns because of its obvious
chilling effect on free speech. Contrary to the Government's argument, the
CDA is not saved from vagueness by the fact that its "patently offensive"
standard repeats the second part of the three prong obscenity test set forth
in Miller v. California, 413 U.S. 15, 24. The second Miller prong reduces
the inherent vagueness of its own "patently offensive" term by requiring that
the proscribed material be "specifically defined by the applicable state law."
In addition, the CDA applies only to "sexual conduct," whereas, the CDA
prohibition extends also to "excretory activities" and "organs" of both a
sexual and excretory nature. Each of Miller's other two prongs also
critically limits the uncertain sweep of the obscenity definition. Just
because a definition including three limitations is not vague, it does not
follow that one of those limitations, standing alone, is not vague. The
CDA's vagueness undermines the likelihood that it has been carefully tailored
to the congressional goal of protecting minors from potentially harmful
materials. Pp. 24-28.

(e) The CDA lacks the precision that the First Amendment requires when a
statute regulates the content of speech. Although the Government has an
interest in protecting children from potentially harmful materials, see, e.g.,
Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a
large amount of speech that adults have a constitutional right to send and
receive, see, e.g., Sable, supra, at 126. Its breadth is wholly
unprecedented. 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. See, e.g., Sable, 492 U. S., at 126. The
Government has not proved otherwise. On the other hand, the District Court
found 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. Moreover, the arguments in this Court referred to possible
alternatives such as requiring that indecent material be "tagged" to
facilitate parental control, making exceptions for messages with artistic or
educational value, providing some tolerance for parental choice, and
regulating some portions of the Internet differently than others.
Particularly in the light of the absence of any detailed congressional
findings, or even hearings addressing the CDA's special problems, the Court
is persuaded that the CDA is not narrowly tailored. Pp. 28-33.

(f) The Government's three additional arguments for sustaining the CDA's
affirmative prohibitions are rejected. First, the contention that the Act is
constitutional because it leaves open ample "alternative channels" of
communication is unpersuasive because the CDA regulates speech on the basis
of its content, so that a "time, place, and manner" analysis is inapplicable.
See, e.g., Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y.,
447 U.S. 530, 536. Second, the assertion that the CDA's "knowledge" and
"specific person" requirements significantly restrict its permissible
application to communications to persons the sender knows to be under 18 is
untenable, given that most Internet forums are open to all comers and that
even the strongest reading of the "specific person" requirement would confer
broad powers of censorship, in the form of a "heckler's veto," upon any
opponent of indecent speech. Finally, there is no textual support for the
submission that material having scientific, educational, or other redeeming
social value will necessarily fall outside the CDA's prohibitions. Pp. 33-35.

(g) The ?223(e)(5) defenses do not constitute the sort of "narrow tailoring"
that would save the CDA. The Government's argument that transmitters may
take protective "good faith actio[n]" by "tagging" their indecent
communications in a way that would indicate their contents, thus permitting
recipients to block their reception with appropriate software, is illusory,
given the requirement that such action be "effective": The proposed screening
software does not currently exist, but, even if it did, there would be no way
of knowing whether a potential recipient would actually block the encoded
material. The Government also failed to prove that ?223(b)(5)'s verification
defense would significantly reduce the CDA's heavy burden on adult speech.
Although such verification is actually being used by some commercial
providers of sexually explicit material, the District Court's findings
indicate that it is not economically feasible for most noncommercial speakers.
Pp. 35-37.

(h) The Government's argument that this Court should preserve the CDA's
constitutionality by honoring its severability clause, ?608, and by
construing nonseverable terms narrowly, is acceptable in only one respect.
Because obscene speech may be banned totally, see Miller, supra, at 18, and
?223(a)'s restriction of "obscene" material enjoys a textual manifestation
separate from that for "indecent" material, the Court can sever the term "or
indecent" from the statute, leaving the rest of ?223(a) standing. Pp. 37-39.

(i) 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. P. 40.

929 F. Supp. 824, affirmed.

Stevens, J., delivered the opinion of the Court, in which Scalia,
Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined.
O'Connor, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which Rehnquist, C. J., joined.

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