Communications Decency Act 110 Stat. 56 (1996)
COMMUNICATIONS DECENCY ACT 110 Stat. 56 (1996)
The internet has revolutionized the world of communications in an unprecedented fashion. Growing at an exponential rate, the Internet has become a new and unique global marketplace of images, ideas, and information. But the Internet's ease of access and wealth of available material have also raised problems, most notably access to certain kinds of information—particularly words and images of a sexual nature—either by unsuspecting adults or by children. Because of that concern, Congress passed the Communications Decency Act of 1996. That law was part of the much larger Telecommunications Act of 1996, an unusually important legislative enactment designed to encourage the rapid deployment of new telecommunications technologies and to promote competition in the local telephone service market, the multichannel video market, and the market for over-the-air broadcasting. In contrast to the rest of the Telecommunications Act, the communications decency provisions were not given careful or extensive consideration by the Congress.
The Communications Decency Act contained two controversial features: the "indecent" communication provision and the "patently offensive" display provision.
The first part of the law prohibited the knowing transmission of "obscene or indecent" messages to any recipient under 18 years of age, by making it a crime when any person "by means of a telecommunications device knowingly … makes, creates, or solicits, and … initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age.…" and regardless of who initiated the communication. The law also made it a crime to permit one's communication facility to be used for such activity.
The other provision of the law prohibited the knowing sending or displaying of "patently offensive" messages in a manner that is available to a person under 18 years of age. This portion of the law focused on the use of any "interactive computer service" (or "chatroom") to display any written or visual communication that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.…" Any person who controlled such facilities was criminally liable as well. The act nowhere defined or explained the meaning of the key terms "indecent" or "patently offensive" display beyond the text just set forth.
Although the act also provided certain defenses against criminal responsibility for individuals or organizations who take "appropriate measures" to restrict access by minors, the nature of those measures was unclear (most would be extremely expensive), and violation of the act carried significant criminal penalties. The act effectively meant that all who published covered information to people under 18 years of age did so at their peril.
Because of the very real chilling effect on freedom of speech on the Internet, the act was challenged on first amendment grounds the moment it went into effect. In a 1997 ruling, American Civil Liberties Union v. Reno, the Supreme Court declared the act to be unconstitutional. The Court concluded that the proper goal of protecting children could not be pursued through means that so broadly stifled the speech of adults on this vital new medium of communication.
Joel M. Gora
La Rue, Janet M. 1996 The Communications Decency Act of 1996: Sensible Not Censorship. St. John's Journal of Legal Commentary 11:721–726.
Lessig, Lawrence J. 1996 Reading the Constitution in Cyberspace. Emory Law Journal 45:886–910.