Reno: The Constitutionality of the Communications Decency Act of 1996

In 1997 the Supreme Court on a 9-0 decision held that the Communications Decency Act (CDA) violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. Content-based restriction is the restriction on the exercise of free speech based on the subject matter or type of speech.

The legal question in Reno v ACLU (1997) asked if certain provisions of the 1996 CDA  violated the First Amendment by being overly broad and vague in their definitions of types of internet communications which they criminalized.

The Act failed to clearly define “indecent” communications, it also did not limit its restrictions to particular times or individuals, provide supportive statements from an authority on the unique nature of internet communications, or demonstrate that the allegedly offensive material does not obtain any social value.

According to the Act, the CDA was created to achieve five main purposes.

  • First, to promote the development of the internet and other interactive computer services.
  • Secondly, it was used to preserve the vibrant and competitive free market that is available on the internet.
  • The third purpose of the CDA was to encourage the development of technologies that can maximize user control over what information is received by others who use the internet.
  • The fourth purpose was to remove the deterrents that exist for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to the inappropriate online material.
  • The final purpose was to ensure enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer use (Communications Decency Act, 1996).

These purposes were widely argued, once in Philadelphia on June 12, 1996, when a panel of federal judges blocked part of the CDA, by saying it would infringe upon the free speech rights of adults. One month after that a U.S. federal court in New York struck down the portion of the CDA intended to protect children from indecent speech due to the fact that it was too broad.

Within the holding, the Court added that since the First Amendment distinguishes between indecent and obscene sexual expressions, the CDA could be saved from its vague challenges if it dropped the words “or indecent” from its text. The question of the CDA fulfilling its purpose remains.

“The odds are slim that a user would enter a sexually explicit site by accident.(16) Unlike communications received by radio or television, the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended,” Justice Stevens said in his deliberation of the Court’s opinion.

The opinion examines the facts and Justice Stevens found that the CDA was intended to protect children, however, there’s a good chance it wouldn’t. The above quotation demonstrates the lack of ability the CDA had to protect minors instead Justice Stevens states it would only lead to further censorship. In the opinion, he evaluates the used of age verification but found that would also be an inadequate way of determining age. Justice Stevens transcribes further in the opinion that sexually explicit content isn’t the main problem but how it’s obtained and through whom.

In the end, we can conclude that the Communications Decency Act of 1996 did not clearly define the terms indecent. Due to the vagueness of the CDA it could not be used to evaluate cases in the future and in turn violated the First Amendment.

See a timeline of Congress’s attempts to address adult content on the internet.


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