Communications Decency Act (1996)

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Communications Decency Act (1996)

Mikal Condon

The Communications Decency Act (CDA) (P.L. 104-104, 110 Stat. 133) was enacted as an amendment of the Telecommunications Act of 1996. The first version of this amendment, sponsored by Senator James Exon without hearings and with little discussion among committee members, would have made it illegal to make any indecent material available on computer networks. The House version of the amendment, sponsored by Representatives Christopher Cox and Ron Wyden, encouraged private, rather than government, solutions to the problem of indecency. The final, compromised amendment sought to protect minors from harmful material online by criminalizing Internet transmission of indecent materials to minors. The CDA prohibited posting "indecent" or "patently offensive" materials in a public forum on the Internet—including Web pages, newsgroups, chat rooms, or online discussion lists. This prohibition included materials that without doubt would enjoy the full protection of the First Amendment if published in print.

President William J. Clinton signed the Telecommunications Act despite his administration's concern that the CDA, "[b]y criminalizing the transmission of material outside the scope of the legal definition of 'obscenity,' ... will be subject to First Amendment challenge." The administration also informed Congress, as the amendment was debated, that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation.

CHALLENGES TO THE ACT

A broad-based coalition of civil liberties groups, Internet companies, and Internet users challenged the CDA beginning on the day it was signed. In June 1996, a three-judge panel granted a preliminary injunction against the CDA, ruling unanimously that the CDA was an unconstitutional abridgment of rights protected by the First and Fifth Amendments.

In 1997 the Supreme Court ruled unanimously to invalidate the CDA in Reno v. American Civil Liberties Union. The Court held that the Internet is a "unique and wholly new medium of worldwide human communication" deserving full First Amendment protection. In applying the First Amendment to developing technologies, the Court established different sets of rules, using a medium-by-medium approach. An examination of the unique characteristics of each medium would be necessary to determine the level of First Amendment protection that should be afforded to each. The Court applied this "medium-specific" analysis to determine that the Internet does not possess any of the characteristics that, when present in other forms of communication, have led the Court to make exceptions in the level of First Amendment protection applied to the medium.

Justice John Paul Stevens held that the CDA was an unconstitutional restriction on speech because "the [Act] places an unacceptably heavy burden on protected speech." He also found that all provisions of the CDA are unconstitutional as they apply to "indecent" or "patently offensive" speech. Because only obscenity can be regulated, the regulations would in effect reduce the constitutionally protected material available to adults "to only what is fit for children." The unique characteristics of Internet communications (its ready availability and ease of use) were an essential factor in the decision. Because it is possible to warn Internet users about indecent content (unlike radio, where warnings fail to protect all potential listeners), and because alternatives exist, at least in theory, the CDA's provisions cast a "far darker shadow over free speech which threatened to torch a larger segment of the Internet community than [any] speech restrictions previously encountered."

In a separate concurrence, Chief Justice William Rehnquist and Justice Sandra Day O'Connor agreed that the provisions of the CDA were unconstitutional except in their narrow application to "communications between an adult and one or more minors."

THE INTERNET AS A UNIQUE MEDIUM

Reno recognized that the Internet is a unique medium entitled to the highest protection under the free speech protections of the First Amendment to the U.S. Constitution. The Court acknowledged in its opinion that the nature of the Internet makes it a medium ideally suited to accomplish what Supreme Court Justice Oliver Wendell Holmes termed the "marketplace of ideas." In light of this desirable characteristic, the Court concluded that, "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."

BIBLIOGRAPHY

"Administration Concerns Regarding S. 652: The Telecommunications Competition and Deregulation Act of 1995." <http://www.cdt.org/speech/cda/admin_s652_comnts.html>.

Letter from Kent Markus, Acting Assistant Attorney General, U.S. Department of Justice, to Senator Patrick Leahy. 141 Congressional Record S8342 (June 14, 1995).