Reno v. American Civil Liberties Union

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), argued 19 March 1997, decided 26 June 1997, by a vote of 7 to 2; Stevens for the Court, O'Connor concurring in the judgment in part and dissenting in part, joined by Rehnquist.

In its first sustained treatment of the regulation of the Internet, the Supreme Court held that Internet speech is entitled to the fullest First Amendment protection.

The issue involved a challenge mounted by an exquisitely selected group—including publishers, civil rights activists, Planned Parenthood, and activists for AIDS awareness and gay rights—to clauses in the Communications Decency Act (CDA) making it a crime to knowingly send an indecent message or image to a specific person under the age of eighteen or to display patently offensive messages or images “in a manner available” to minors.

The deeper question was how to think about the Internet for First Amendment purposes. In rejecting the broadcast regulation model proffered by the government, the Court found that the Internet has no bandwidth scarcity, lacked a long history of government regulation, and was not an “invasive” medium in that “[u]sers seldom encounter content ‘by accident.’” (p. 854).

Thus the First Amendment requires strict scrutiny of content‐based Internet regulation. The Court held that the terms “patently offensive” and “indecent” were vague and chilling given the national scope of the Internet. The CDA's affirmative defenses could not save it in light of the District Court's findings about the ineffectiveness or expense of age verification technologies and adults' constitutional right to material potentially harmful to minors.

The decision did not resolve what “community standard” if any can be applied to salacious content online. And, already, the Internet's lack of pervasiveness seems open to challenge. If age‐verification technology or narrow geographic targeting were to become cheap or ubiquitous, a similar statute might survive strict scrutiny in the future and Justice Sandra Day O'Connor's opinion suggesting that an “attempt by Congress to create ‘adult zones’ on the Internet … can be constitutionally sound” (p. 886), might yet prove prophetic.

Michael Froomkin