RENO VS ACLU : CASE SUMMARY

In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court considered the constitutionality of provisions of the Communications Decency Act of 1996 (CDA) that sought to protect minors from sexually explicit material on the Internet. The Court held that the challenged provisions criminalizing the knowing transmission of “indecent” communications and the display of material that was “patently offensive” to minors violated the First Amendment. The decision was one of the earliest major Supreme Court judgments applying traditional First Amendment principles to the emerging medium of the Internet.

The Court recognized the legitimacy of Congress’s objective of protecting children from harmful sexual material. However, it held that the Government could not accomplish that objective by imposing a broad content-based restriction that substantially suppressed constitutionally protected communication among adults. The decision established that the Internet was entitled to a high level of First Amendment protection and could not be subjected to the same degree of content regulation historically permitted in certain other media, particularly broadcast television and radio.

FACTS OF THE CASE

Congress enacted the Communications Decency Act of 1996 as part of the Telecommunications Act of 1996. The CDA contained provisions intended to protect minors from sexually explicit material available through the Internet.

Section 223(a)(1)(B)(ii) criminalized the knowing transmission of “obscene or indecent” communications to a person under 18 years of age. Section 223(d) prohibited the knowing sending or displaying to a person under 18 of a communication that, in context, depicted or described sexual or excretory activities or organs in terms “patently offensive as measured by contemporary community standards.”

The statute contained certain affirmative defenses. One defense was available to persons who took, in good faith, reasonable, effective and appropriate actions to restrict access by minors to the prohibited communications. Another defense applied where access was restricted through designated forms of age verification, such as the use of a verified credit card or an adult identification number.

The provisions were challenged by the American Civil Liberties Union and other organizations, businesses and individuals. The challengers argued that the statute violated the First Amendment because it was excessively broad, vague and imposed criminal liability upon communications that were constitutionally protected when directed to adults.

The District Court for the Eastern District of Pennsylvania convened a three-judge court and issued a preliminary injunction against enforcement of the challenged provisions. The Government appealed directly to the Supreme Court under the special review provisions contained in the Act.

OPINION OF THE COURT

Justice John Paul Stevens delivered the opinion of the Court. He was joined by Justices Scalia, Kennedy, Souter, Thomas, Ginsburg and Breyer. Justice O’Connor, joined by Chief Justice Rehnquist, concurred in the judgment in part and dissented in part.

Thus, the Court’s principal judgment was unanimous, although there was disagreement concerning the proper scope of the constitutional remedy and application of certain principles to Internet regulation.

The Supreme Court first examined the distinctive nature of the Internet.

The Court observed that sexually explicit material available through the Internet could take many forms, including text, photographs, images, chat-room communications, newsgroups and other forms of interactive communication. The material ranged from relatively mild sexual discussion to sexually explicit and “hard-core” material.

The Court also recognized that the Internet differed fundamentally from traditional broadcast media. A person could communicate with a worldwide audience through a website, discussion group, e-mail system or newsgroup without obtaining a government license or controlling access to a particular geographical community.

The Court therefore refused to assume that the constitutional rules governing broadcast media could simply be transferred to the Internet. Unlike broadcast radio and television, the Internet was not characterized by the same history of pervasive government regulation, scarcity of frequencies or uniquely invasive presence in the home.

First Amendment Protection of Internet Communication

The Court began with the basic proposition that communication on the Internet is protected by the First Amendment.

The Government argued that regulation of indecent material on the Internet was justified by earlier decisions involving the protection of minors from sexually explicit material. It relied particularly upon Ginsberg v. New York, which permitted regulation of material harmful to minors, and FCC v. Pacifica Foundation, which permitted certain regulation of indecent broadcasting.

The Court distinguished those cases. The Internet was fundamentally different from broadcasting. The CDA applied broadly to the entire universe of Internet communication and was not confined to commercial transactions or a narrowly defined category of speakers.

The Court therefore rejected the argument that the Internet should be subjected to the reduced level of First Amendment protection that had developed in certain broadcast cases.

The Problem of “Indecent” and “Patently Offensive”

A central defect in the CDA was the use of the undefined terms “indecent” and “patently offensive.”

The Court observed that these terms did not provide speakers with sufficient guidance about what communications were prohibited. A person communicating on the Internet could not confidently determine whether a serious discussion of subjects such as birth control, homosexuality, prison rape, sexual health or other matters involving sexuality would expose the speaker to criminal liability.

The problem was particularly serious because the statute imposed criminal penalties. Where a law regulating speech is unclear, speakers may refrain from engaging in constitutionally protected expression simply because they are uncertain whether their communication will be considered unlawful.

This produces what is known as a chilling effect upon protected speech.

The Court therefore concluded that the CDA lacked the precision required by the First Amendment when the Government regulates speech on the basis of its content.

Distinction between Obscenity and Indecent Speech

The Court made an important distinction between obscene speech and indecent but non-obscene speech.

Obscenity falls outside the protection of the First Amendment and may constitutionally be prohibited subject to the established requirements of obscenity doctrine. The CDA’s prohibition on obscenity therefore stood on a different constitutional footing.

However, sexual expression that is merely indecent but not obscene is protected by the First Amendment when communicated to adults.

The Court therefore rejected the Government’s attempt to treat all sexually explicit or offensive material as constitutionally unprotected. The fact that particular material may offend some persons does not, by itself, authorize the Government to suppress it.

Overbreadth and Suppression of Adult Speech

The most significant constitutional defect identified by the Court was the overbreadth of the CDA.

Congress unquestionably possessed a legitimate and important interest in protecting children from harmful sexual material. But the means chosen by Congress were so broad that they also restricted a substantial amount of speech to which adults had a constitutional right.

The statute was not limited to material that was obscene or legally unprotected. It extended to communications that were merely “indecent” or “patently offensive.”

Consequently, in attempting to prevent minors from accessing certain communications, Congress had created a system that could also prevent adults from communicating with one another about constitutionally protected subjects.

The Court considered this burden unacceptable because the Government had not demonstrated that such sweeping restrictions were necessary to achieve its legitimate objective.

Less Restrictive Alternatives

The Court emphasized that the Government’s legitimate objective could not justify an unnecessarily broad suppression of protected speech where less restrictive alternatives could achieve the same objective.

The constitutional problem was therefore not simply that Congress was attempting to protect children. Rather, the problem was that Congress attempted to accomplish this goal through a blanket restriction that affected a vast amount of adult communication.

The Court’s reasoning reflected the traditional First Amendment principle that the Government must not suppress protected speech more broadly than necessary merely because some unprotected or harmful speech is mixed with it.

The Affirmative Defenses did not Save the Statute

The Government argued that the affirmative defenses contained in the CDA prevented the statute from being unconstitutionally broad.

The Court rejected this argument.

The defenses required speakers and Internet service providers to undertake measures such as age verification or other access restrictions. The Court concluded that these mechanisms did not adequately cure the fundamental constitutional defect.

Moreover, the CDA’s broad criminal prohibitions remained in place, and speakers could not be expected to determine with sufficient certainty whether their communications would fall within the undefined categories of “indecent” or “patently offensive” material.

The existence of defenses therefore did not transform an otherwise unconstitutional restriction into a narrowly tailored regulation.

The CDA’s Unprecedented Breadth

The Court was particularly concerned about the enormous scope of the statute.

The CDA did not apply only to commercial pornography providers. It potentially applied to non-profit organizations, individuals and other speakers using the Internet.

Because Internet communication could reach a nationwide or worldwide audience, a speaker could potentially be exposed to liability based upon standards that were uncertain and difficult to predict.

The Court noted that the general terms employed by Congress could potentially encompass substantial amounts of material having serious educational, scientific, literary, artistic or political value.

Thus, the statute’s reach went far beyond pornography and other material harmful to minors.

Community Standards and the Internet

Another important concern involved the use of contemporary community standards.

The CDA contemplated evaluation of material according to community standards, but the Internet did not operate within the boundaries of a single local community. A communication posted online could be instantly accessible across the entire country and around the world.

This created the possibility that material acceptable in one community could be regarded as offensive in another. A speaker could therefore face uncertainty concerning which community’s standards would govern.

The Court found this problem especially troubling because the statute imposed criminal sanctions and regulated speech on the basis of its content.

The Government’s Interest in Protecting Children

The Court expressly recognized that protecting children from harmful material is a legitimate and important governmental objective. The decision therefore should not be understood as holding that minors may freely be exposed to all forms of sexual material on the Internet. Rather, the Court held that the importance of the governmental objective did not automatically validate every means adopted to achieve it.

The Government was required to respect the constitutional rights of adults while pursuing the protection of children. A law designed to protect minors could not constitutionally suppress a large amount of protected adult speech when more carefully drawn alternatives were available.

The Internet as a New “Marketplace of Ideas”

The Court also rejected the Government’s argument that unrestricted access to indecent material would discourage citizens from using the Internet.

The Government suggested that people might avoid the Internet because they feared that they or their children would encounter sexually explicit material.

The Court found this argument unpersuasive in light of the phenomenal growth of the Internet. The record demonstrated that the Internet was expanding rapidly rather than being driven into decline by the availability of indecent material.

The Court emphasized that, as a matter of constitutional principle, government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to promote it.

The Internet was therefore treated as an important new forum for communication in which individuals could speak, publish, debate and exchange ideas without the traditional barriers associated with older forms of mass communication.

The Court did not Decide the Fifth Amendment Issue

The challengers had also argued that the CDA violated the Due Process Clause of the Fifth Amendment because its terms were impermissibly vague.

The Supreme Court, however, found it unnecessary to decide that question.

The Court held that the challenged provisions could be invalidated under the First Amendment because of their breadth and the burden they imposed upon protected speech. Although the vagueness of the statutory terms was relevant to the First Amendment analysis, the Court expressly declined to reach the separate Fifth Amendment question.

Holding of the Court

The Supreme Court held that the CDA’s provisions prohibiting the knowing transmission of “indecent” communications and the knowing display of communications that were “patently offensive” to minors violated the First Amendment.

The Court therefore affirmed the judgment of the District Court.

Importantly, the Court did not invalidate every provision of the Communications Decency Act. The Court preserved the Government’s ability to prohibit material such as obscenity and child pornography that was already outside First Amendment protection.

CONCURRING OPINION OF JUSTICE O’CONNOR

Justice Sandra Day O’Connor, joined by Chief Justice Rehnquist, concurred in the judgment in part and dissented in part.

Justice O’Connor agreed that the CDA’s provisions were unconstitutional as applied to the broad Internet environment. However, she took a somewhat different approach concerning the possibility of creating constitutionally permissible restrictions or “adult zones” on the Internet.

She reasoned that technological developments might permit certain methods of separating communications accessible to adults from communications accessible to minors. In her view, the constitutional problem arose particularly from the CDA’s failure to provide an effective mechanism that would prevent adults from receiving protected speech while limiting minors’ access to the same material.

SIGNIFICANCE OF THE JUDGMENT

Reno v. ACLU is a landmark decision because it was among the first Supreme Court judgments to establish that the Internet receives substantial First Amendment protection.

The decision rejected the proposition that the Internet should be regulated like broadcast television and radio merely because sexually explicit material could be found online.

The Court emphasized that the Internet had become a major forum for political, educational, cultural and personal communication. Government regulation of that medium therefore had to comply with the fundamental principles of freedom of speech.

The judgment also illustrates the constitutional importance of narrow tailoring. The Government may have a legitimate purpose, such as protecting children, but the existence of a legitimate purpose does not permit it to suppress substantially more speech than necessary to accomplish that purpose.

IMPACT OF THE JUDGMENT

The decision had a profound influence on subsequent debates concerning Internet censorship, online speech and regulation of sexually explicit material.

Congress subsequently adopted more narrowly targeted legislation addressing minors’ access to online pornography. The constitutional questions surrounding Internet regulation continued to reach the Supreme Court in later cases involving online speech, content moderation, communications platforms and the application of traditional First Amendment principles to new technologies.

The importance of Reno v. ACLU therefore extends beyond the particular provisions of the 1996 CDA. The case established an enduring principle: the emergence of a new communication technology does not, by itself, reduce the constitutional protection afforded to speech communicated through that technology.

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