Janet Reno, Attorney General of the United States, et al., Appellants v. American Civil Liberties Union, et al., Appellee
Supreme Court of the United States 521 U.S. 844 (1997)

This was the first case involving the limits and powers of government to regulate the Internet to be heard by the U.S. Supreme Court. The American Civil Liberties Union (ACLU) and the federal government asked the Court to decide whether Congress violated the free speech protections of the First Amendment of the U.S. Constitution when it passed the Communications Decency Act (CDA). A Pennsylvania district court had found this legislation unconstitutional under the First Amendment

The CDA created criminal liability for the online transmission of "indecent" and "patently offensive" material to minors. In addition, it created a defense for defendants who, in good faith, took effective actions to restrict access by minors to indecent material or for those defendants who conditioned access on the provision of a credit card, debit account, adult access code, or adult personal identification number. Because technology, however, does not currently exist that would allow senders to block minors but not adults from accessing Internet communications, the CDA would limit adult-to-adult communications in addition to communications with minors.

In this case, the Court considered these issues: (1) Does the Internet enjoy the fullest degree of First Amendment protection? (2) Is the CDA unconstitutionally overbroad? (3) Can the CDA be considered a "cyberzone"and analyzed as a time, place, and manner regulation because it applies to all of cyberspace? (4) Did Congress demonstrate that it could not find less restrictive means of advancing its interest in protecting children from indecent speech?

After deciding that the contested provisions of the CDA were content-based blanket restrictions on speech and, thus, could not be analyzed as time, place, and manner regulations, the Court applied strict scrutiny to the statute.

Justice Stevens
Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that have attended the broadcast industry. Moreover, the Internet is not as "invasive" as radio or television. The District Court specifically found that "[c]ommunications over the Internet do not ‘invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content ‘by accident.'" It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that "‘odds are slim' that a user could come across a sexually explicit site by accident."

In Sable [Communications of California, Inc.], a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and criminalization of indecent commercial telephone messages, the Government . . . [argued] that the ban was necessary to prevent children from gaining access to such messages. We agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors" which extended to shielding them from indecent messages that are not obscene by adult standards. . . . [However, we could not allow the blanket prohibition on indecent messages because] "the dial-it medium requires the listener to take affirmative steps to receive the communication."

[T]he Internet . . . provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn"invalidated in Sable. In Sable, this Court rejected the argument that we should defer to Congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a statutory regulation of speech was enacted for the purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into its validity.... [T]hat inquiry embodies an "over-arching commitment" to make sure that Congress has designed its statute to accomplish its purpose "without imposing an unnecessarily great restriction on speech."

The breadth of the CDA's coverage is wholly unprecedented. . . . [T]he scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.

The breadth of this content-based regulation of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet- such as commercial Web sites-differently than others, such as chat rooms. . . . [W]e are persuaded that the CDA is not narrowly tailored.

We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save an otherwise patently invalid constitutional provision. In Sable, we remarked that the speech restriction at issue there amounted to "burn[ing] the house to roast the pig." The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community

phenomenal. 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.

CRITICAL THINKING ABOUT THE LAW
As you know, courts often use analogies when making decisions. Often, once the Court decides which analogy it will use, it has decided who will win and lose the case. This is true in Case 6-1 in which the Court scrutinized the CDA.
Please refer to Case 6-1 and consider the following questions:

1. The U.S. Supreme Court decided that the case was a good analogy to the case before the Court. Once the government realized that the Court saw as a good analogy, the government knew it was likely to lose and that the CDA would be struck down. How so?
Clue: Reread the discussion of paying particular attention to the level of scrutiny the Court applied to the law challenged in that case.

2. If you were a member of Congress who had a hand in drafting the CDA, how would you modify this legislation in light of the Court's opinion?
Clue: Reread the Court's discussion of the ways in which the CDA is too broad and think of ways to make the law narrower in scope.