Reno v. ACLU, 521 U.S. 844 (1997)

In Reno v. ACLU, the Supreme Court struck down two provisions of the 1996 Communication Decency Act (CDA) as violating the First Amendment. The CDA, which was intended to protect children from exposure to harmful material on the Internet, made it a crime punishable by up to two years in prison per offense to knowingly transmit ‘‘obscene or indecent’’ messages to anyone under eighteen years old or to display ‘‘patently offensive’’ materials that depict or describe ‘‘sexual or excretory activities or organs’’ in a manner that is accessible to anyone under eighteen years old. The CDA exempted from prosecution those who took ‘‘good faith, reasonable, effective, and appropriate actions’’ to restrict minors’ access to prohibited communications and those who required proof of age before allowing access to those communications.

Two lawsuits challenging the constitutionality of the CDA were consolidated before a three-judge panel of the District Court for the Eastern District of Pennsylvania. The court granted the plaintiffs’ motion for a preliminary injunction against the law’s enforcement—except for those provisions prohibiting obscenity and child pornography. The court reasoned that the CDA violated the First Amendment because it was overbroad and violated the Fifth Amendment because it was vague. The government appealed the lower court’s decision directly to the Supreme Court as provided in the CDA’s review provisions.

The Supreme Court’s nine-to-zero decision, authored by Justice John Paul Stevens, affirmed the district court’s judgment on First Amendment grounds, but did not reach the Fifth Amendment question. The Court first distinguished the CDA’s regulation of the Internet from government regulation of other broadcast media. In contrast to the New York statute prohibiting the sale of obscene magazines to minors under seventeen years old that the Court upheld in Ginsberg v. New York (1968), the CDA swept too broadly. The CDA interfered with parental authority by restricting a parent’s ability to permit his or her child access to prohibited communications; was not limited to commercial transactions; was not restricted to prohibiting communications that were ‘‘utterly without redeeming social importance for minors;’’ and it applied to minors who were a year closer to the age of majority. In contrast to the Federal Communication Commission’s order sanctioning the radio broadcast of George Carlin’s ‘‘Filthy Words’’ monologue that the Court upheld in FCC v. Pacifica Foundation (1978), the CDA applied to a medium that had no history of limited First Amendment protection and imposed criminal sanctions, not civil ones. In contrast to the zoning ordinance restricting adult movie theatres in residential neighborhoods that the Court upheld in City of Renton v. Playtime Theatres, Inc. (1986), the CDA was not a ‘‘time, place, and manner’’ regulation because it applied to the entire Internet. Indeed, the Court concluded that those precedents ‘‘provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].’’ Moreover, the Court held that the Internet was sufficiently different from traditional broadcast media that extensive government regulation was unwarranted—the Internet has never been subject to government supervision, as have other media; communications over the Internet must be solicited and so are not as invasive as are radio and television transmissions; and the Internet is not a scarce commodity as is the broadcast spectrum.

Having determined that Internet communications are deserving of full First Amendment protection, the Court explained that the two provisions of the CDA were unconstitutional because they were ambiguous and overbroad. The Court declined to consider the plaintiffs’ Fifth Amendment challenge to the statute, but concluded that Congress’s failure to define the terms ‘‘indecent’’ and ‘‘patently offensive’’ in the CDA raised First Amendment concerns. Indeed, the language of the CDA swept more broadly than the definition of obscenity that the Court adopted in Miller v. California (1973). The CDA required neither that patently offensive material be ‘‘specifically defined by the applicable state law’’ nor that indecent materials ‘‘lack serious literary, artistic, political, or scientific value.’’ The Court found that the CDA’s vagueness was problematic because ambiguous content- based restrictions have a chilling effect on constitutionally protected speech. The fact that the statute carried strict criminal penalties only increased that likelihood. The Court concluded that the ‘‘burden [the CDA places] on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.’’

Even allowing that government has a legitimate interest in protecting children from harmful materials, the Court found that the CDA was not sufficiently narrowly tailored to that purpose. Given the size of the audience for messages and postings on the Internet, a sender of an indecent or offensive message could be charged with knowing that at least one minor is likely to view their communication. Moreover, since there is currently no technology to allow a sender to prevent minors from accessing communications or to accurately check the age of a message recipient, the only way a sender could be sure to evade the CDA would be to refrain from sending any messages that are arguably indecent or offensive— even to other adults. The Court was not convinced that Congress tried hard enough to find less restrictive alternatives to the ‘‘wholly unprecedented’’ coverage of the CDA.

The Court held that the CDA could not be saved by the fact that it left open alternative channels for communicating indecent or offensive messages, by the fact that the statutory language could be read narrowly by enforcers, or by the government’s contention that the communications prohibited by the CDA would almost always be lacking in scientific, educational, or other redeeming social value. Moreover, the statute’s exemption from prosecution for those who attempted to comply with its provisions did not reduce its scope sufficiently to redeem the otherwise unconstitutional law. Finally, the Court held that the CDA’s severability clause could only be applied to save its prohibition of obscene speech on the Internet, not to the rest of the statute.

Justices O’Connor and Rehnquist concurred in the judgment and dissented in part. Those justices argued that the Court was right to strike down the CDA as applied to Internet communications between adults, but that the law should have been sustained to the extent that it prohibited indecent communications between an adult and one or more minors.

DENISE C. MORGAN

References and Further Reading

• Heins, Marjorie. Not in Front of the Children: ‘‘Indecency,’’ Censorship, and the Innocence of Youth. New York: Hill and Wang, 2001.
• The Supreme Court 1996 Term, Harvard Law Review 111 (1997): 1:329–39.

Cases and Statutes Cited

• City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)
• FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
• Ginsberg v. New York, 390 U.S. 629 (1968)