The Battle for the Communications Decency Act 1996 is over
By Yaman Akdeniz, LL.B., MA
Citation: Yaman Akdeniz, The battle for the Communications Decency Act 1996 is over,  New Law Journal 147 (6799), page 1003.
Copyright © 1997-2001 Yaman AKdeniz
The Battle for the Communications Decency Act 1996 is over
As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion. Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. (1)
Since the introduction of the Communications Decency Act 1996 (CDA), the American Civil Liberties Union (ACLU) has been involved fighting attempts to regulate speech on the Internet which may be othervise permissible in other medium such as publishing and broadcasting at both state and federal level. While the ACLUs challenge to the CDA reached the Supreme Court, it has also successfully challenged two state legislations in Georgia and New York in June 1997.
Communications Decency Act 1996
The US Telecommunications Act 1996, included the provisions of the CDA to be codified at 47 U.S.C. 223. The clear purpose of the Act was to restrict access by minors to patently offensive depictions of sexual or excretory activities that is to widely available pornographic images and materials on-line over an interactive computer service, including materials available on the Internet. Speech which is not considered obscene may qualify as indecent, and indecent speech enjoys First Amendment protection though it can still be regulated where there is a sufficient governmental interest. But the extension of the CDA to indecent speech would have a chilling effect on the Internet. Information regarding protection from AIDS, birth control or prison rape, is sexually explicit and may be considered indecent or patently offensive in some communities, and this kind of speech would be affected by the provisions of the CDA which did not define the word indecent.
According to the ACLU, the CDA extends the reach of the 19th-century Comstock Act, which long suppressed information about birth control and abortion, so that it will apply to the latest state-of-the-art communications technologies. (2)
The Trial of the Internet
ACLU and other civil liberties groups filed a lawsuit to stop the government from restraining free speech on the Internet. In ACLU v. Janet Reno, ACLU claimed that the CDA is ill defined and that plaintiffs do not know what speech or other actions might subject them to prosecution. ACLU and the other plaintiffs argued that:
Not only does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans "indecent" or "patently offensive" speech entirely, thus impermissibly reducing the adult population to "only what is fit for children".
The plaintiffs initially requested a temporary restraining order (TRO), and the court ordered that the plaintiffs motion for a TRO be granted in part. It only applied to the provisions of 47 U.S.C. 223 in so far as indecent is concerned but not obscene. Buckwalter J stated that:
This strikes me as being serious because the undefined word "indecent," standing alone, would leave reasonable people perplexed in evaluating what is or is not prohibited by the statute.
Plaintiffs did not challenge the statute to the extent that it covers obscenity or child pornography, which were already proscribed before the CDAs adoption.(3)
The Decision of the Federal District Court in ACLU v. Reno
In June 1996, the Federal District Court of Philadelphia held that the plaintiffs have established a reasonable probability of eventual success in the litigation by demonstrating that sections 223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Accordingly, a preliminary injunction was granted.
Both parties agreed that sexually explicit material exists on the Internet. But there is no evidence that sexually-oriented material is the primary type of content on the Internet. Sexually explicit material is created, named, and posted in the same manner as material that is not sexually explicit. Sloviter, Chief Judge stated:
The CDA is patently a government-imposed content-based restriction on speech, and the speech at issue, whether denominated indecent or patently offensive, is entitled to constitutional protection.
Dalzell J stated:
As a general rule, the Constitution forbids the Government from silencing speakers because of their particular message. Two of the exceptions to this general rule deal with obscenity and child pornography. The Government could punish these forms of speech on the Internet even without the CDA.(4)
The decision of the Supreme Court in Reno v ACLU
The Supreme Court, by a 7-2 vote, struck down the online censorship provisions of the CDA in a historic ruling determining the future of free speech on the Internet on June 26, 1997. The Supreme Court affirmed the Philadelphia Courts ruling that the CDA was unconstitutional. The CDAs "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment, the decision read.(5)
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.
Referring to the decision in Sable Communications v. FCC, the Supreme Court stated that the speech restriction at issue there amounted to burn[ing] the house to roast the pig. In his opinion for the Court, Justice Stevens wrote that [t]he CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.
Legislation such as the CDA might have set up a dangerous precedent for similar legislation in modern and developing societies including the UK. But the battle does not seem to be over as a new legislation already dubbed as the son of CDA is on its way.
(1) ACLU, et al.v. Janet Reno, 929 F Supp 824 (1996).
(2) In 1934 with the case of United States v. One Book Named Ulyssess by James Joyce, 72 F.2d 705 (1934) the Comstock law came to an end.
(3) See 18 U.S.C. 1464-65 and 2251-52. See also New York v. Ferber, 458 U.S. 747 (1982), and Miller v. California, 413 U.S. 15 (1973), and U.S. v. Thomas 74 F.3d 701 (1996).
(4) ACLU, et al.v. Janet Reno, 929 F Supp 824 (1996).
(5) See the Supreme Court decision in Reno v. ACLU, 117 S. Ct. 2329 (1997) at <http://www.aclu.org/court/renovacludec.html>.