By: Theresa Chmara
On this day 20 years ago, the United States Supreme Court issued a landmark opinion striking down the Communications Decency Act (“CDA”). This statute constituted the first attempt by Congress to regulate the content of material on the Internet.
The CDA made it a crime to place content on the Internet that was “indecent” or “patently offensive” if that content would be accessed by minors under the age of 18. The Freedom to Read Foundation joined 27 other organizations — including the American Library Association, American Booksellers Association, Association of American Publishers, Apple and Microsoft — in a lawsuit challenging the statute on the ground that it violated the First Amendment. The lawsuit was filed in the federal district court in the Eastern District of Pennsylvania with Bruce J. Ennis, then General Counsel of FTRF, as lead counsel. At the same time, the American Civil Liberties Union filed a lawsuit on behalf of 27 organizations also challenging the statute. The two cases were consolidated for trial.
The CDA required any challenges to the statute to be heard initially by a panel of three judges with direct appeal to the United States Supreme Court. The district court panel held unanimously that the CDA violated the First Amendment because it was overbroad and violated the Fifth Amendment because it was vague.
The case was appealed to the United States Supreme Court. After briefing, the case was argued by Bruce J. Ennis on behalf of both the FTRF and ACLU plaintiff groups. Bruce Ennis appeared in more than 250 cases before the Supreme Court before dying in August 2000 from complications of leukemia at the age of 60. He was an ardent champion of First Amendment rights and his death was a loss to the entire First Amendment community. It was a great privilege and honor for me to work with him on a great number of cases, including our representation of FTRF. When he died, we lost a mentor and friend. We greatly miss his intellect, sense of humor and passionate advocacy.
As in all his cases, Bruce Ennis fiercely advocated his cause before the Supreme Court in the CDA case. And on June 26, 1997, the United States Supreme Court, in an opinion written by Justice John Paul Stevens, unanimously agreed that the CDA violated the First Amendment. The Court did not reach the Fifth Amendment issue but found that the vagueness of the statute, when coupled with its overbreadth, violated the First Amendment. Specifically, the Court held that the statute “lacks the precision that the First Amendment requires when a statute regulates the content of speech.” The Court held that the statute was unconstitutional because “[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” The Supreme Court Justices unanimously concluded that “[t]hat burden 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.”
The Supreme Court also rejected the government’s attempt to defend the statute. The Supreme Court accepted the lower court’s finding that “at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults” and that there was “no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms.”
The Supreme Court observed that the “breadth of the CDA’s coverage is wholly unprecedented” in that unlike previous regulations it was “not limited to commercial speech or commercial entities” because 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 Court concluded that “the general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value.”
Additionally, the Court found it disturbing that based on the broad and vague language of the statute and the application of a “community standards” criterion “a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term” and that “a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material ‘indecent’ or ‘patently offensive’ if the college town’s community thought otherwise.”
The CDA case has proved to be an important precedent for First Amendment advocates, confirming the importance of the right to receive information as the corollary to the right to speak and reaffirming that the government cannot burden the First Amendment rights of adults with content based restrictions based on the argument that the restrictions are necessary to protect minors from potentially harmful material. With its unanimous decision, the Supreme Court reaffirmed that restrictions on content-based speech require precision, not vague and overbroad language.
Theresa Chmara is an attorney in Washington, DC. She also is the General Counsel of the Freedom to Read Foundation. She is the author of Privacy and Confidentiality Issues: A Guide for Libraries and their Lawyers (ALA 2009). She has been a First Amendment lawyer for over twenty-five years and is a frequent speaker on intellectual freedom issues in libraries. She is a contributing author for the Intellectual Freedom Manual published by the Office of Intellectual Freedom of the American Library Association.