Communications Decency Act (1996)

The Communications Decency Act (CDA) of 1996, an amendment to the Telecommunications Reform Act of 1996, aimed to protect children by regulating the content of the Internet. The legislation, introduced by Senator James Exon (D-Nebraska), could theoretically have led to the fining and imprisonment of anyone who used an offensive word in an electronic communication. It had the potential to smother both free expression and the infant Internet. The Supreme Court ruled this effort at censorship to be unconstitutionally broad in June 1997.

The CDA formed part of an effort to update laws relating to the telecommunications industry in light of dramatic technological advancements. While the other parts of the telecommunications bill removed barriers that restricted the growth of media business, Congress also decided to regulate the content of the material distributed by these companies. Previous communications law banned the deliberate telephone transmission of obscene material. The new CDA covered all methods of telecommunication. In addition, existing federal laws against importing obscene material or transporting such material across state lines for sale or distribution were now applicable to computer- transmitted materials.

The CDA prohibited the display of sexual and excretory material deemed ‘‘patently offensive’’ in ‘‘a manner available to a person under 18 years of age.’’ It targeted both text and images in public areas of the Internet. In a revision of the CDA by the House, the indecency provision of the amendment was changed to update the 1873 Comstock Act. This amendment, introduced by longtime abortion opponent Representative Henry Hyde (R-Illinois), banned electronic dissemination of information ‘‘designed, adapted, or intended for producing abortion or for any indecent or immoral use or any . . . notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any such mentioned article, matter, or things may be obtained or made . . . .’’ Violation of the CDA brought a penalty of up to two years in prison and a maximum fine of $250,000. The Senate approved the Telecommunications Reform Act by a vote of ninety-one to five with the House supporting it by a vote of 414 to sixteen. President Bill Clinton signed the bill into law on February 8, 1996.

Part of the problem with the legislation lay with Congress’s lack of knowledge about electronic communication. Senator Patrick Leahy, an opponent of the CDA, estimated that only six other senators had used the Internet. Unfamiliar with the technology, they did not understand how the Internet worked. They apparently thought that it was like cable television, with channels that could easily be regulated. Senators were also unaware that much of the available pornography came from foreign sources that would not be affected by American laws.

The new law met with immediate opposition. The online community condemned the CDA as statesanctioned censorship. The American Civil Liberties Union, along with twenty-five anticensorship organizations, filed a lawsuit against the Justice Department challenging the constitutionality of the law on the day that it went into effect. On February 26, 1996, a coalition of thirty-five groups, including the American Library Association, the Recording Industry Association of America, the National Writers Union, and commercial online providers America Online, CompuServe, Microsoft, and Prodigy, filed a second lawsuit against the CDA. Lawyers for the opponents of the CDA argued both that the law banned certain speech that was suitable for adults and that such a ban would be unenforceable. It would not be possible for online service providers to verify the identity and age of each person browsing the Internet.

On June 12, 1996, the U.S. District Court in Philadelphia imposed a preliminary injunction against enforcement of the CDA. The judges ruled that the CDA violated First Amendment guarantees of free speech and Fifth Amendment protections against vaguely defined criminal conduct. The judges stated that the government had provided no compelling reason to restrict speech. The availability of software that enabled parents to regulate the Internet use of their children led the judges to further conclude that the government had not met its obligation to use the least restrictive means to regulate speech.

The Justice Department, under Attorney General Janet Reno, appealed the decision. The Supreme Court ruled on June 26, 1997, in Reno v. American Civil Liberties Union, that the CDA was unconstitutional, because it was so broad that it would have banned material about breast cancer and AIDS awareness, as well as such art as Michelanglo’s nude David. Seven justices supported the decision, with Justices Sandra Day O’Connor and William Rehnquist agreeing in part and dissenting in part. Congress has made subsequent efforts to restrict Internet content, but no bill was made into law.

CARYN E. NEUMANN

References and Further Reading

  • Drucker, Susan J., and Gary Gumpert, eds. Real law @ Virtual Space: Communication Regulation in Cyberspace. Cresskill, NJ: Hampton Press, 2005.
  • Godwin, Mike. Cyber Rights: Defending Free Speech in the Digital Age. Boston: MIT Press, 2003.

Cases and Statutes Cited

  • Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996)

See also Abortion; American Civil Liberties Union; Comstock, Anthony; Obscenity; Reno v. ACLU, 521 U.S. 844 (1997)

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