The Reno case originally consolidated two separate lawsuits challenging the constitutionality of the 1996 Communications Decency Act (CDA). Appellees in the case include 19 plaintiffs led by the ACLU and 27 plaintiffs organized as the Citizens Internet Empowerment Coalition. Notable plaintiffs include the Electronic Privacy Information Center, the Electronic Frontier Foundation, the National Writers Union, Planned Parenthood Federation of America, the American Library Association, the American Booksellers Association, the American Society of Newspaper Editors, America Online, Apple Computer, CompuServe, and Microsoft Corporation.
The criminal provisions at issue in the litigation are embodied in two sections of the CDA. Section 223(a)(1)(B) applies to "telecommunications device[s]" and makes it a felony to transmit an "indecent" communication "knowing that the recipient of the communication is under 18 years of age." The term "indecent" is undefined in the statute.
Section 223(d)(1) applies to "interactive computer services." It criminalizes communications to minors that, "in context, depict[] or describe[], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Section 223(d)(1)(A) makes it a crime to "use[] an interactive computer service to send [such material] to a specific person or persons under 18 years of age." Section 223(d)(1)(B) makes it a crime to "display [such material] in a manner available" to any person under eighteen.
It is important to note that Section 223(e)(5)(A) creates an affirmative defense for anyone who "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to [prohibited] communication[s] . . . ." Section 223(e)(5)(B) creates an affirmative defense for anyone who "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."
In a truly remarkable oral argument, both the attorneys and the justices focused extensively on the Internet itself and sought to identify the most relevant and appropriate analogy for cyberspace. Plaintiffs were represented by Washington, D.C. Attorney Bruce J. Ennis, and the government was represented by Deputy Solicitor General Seth P. Waxman.
Is the Internet more like a library? This was the first analogy suggested during Mr. Waxman's oral argument. For many people, the Internet indeed functions as a research tool, and the government's position with regard to this analogy is that the CDA simply requires that certain indecent material be put in "a different room." Judith Krug of the American Library Association noted afterward that "the justices paid special attention to the threat that the CDA would pose to libraries around the country seeking to use the Internet to provide greater public access to information." See Press Release, Citizens Internet Empowerment Coalition, March 19, 1997.
Mr. Waxman suggested, however, that the Internet is more like a city, with the obscene and pornographic material equivalent to adult bookstores and video stores. This analogy has been suggested in the past by several commentators. See, e.g., William J. Mitchell, City of Bits (1995). Waxman argued that the dispute could really be viewed as "a zoning issue," with the case of Renton v. Playtime Theaters directly on point.
In Renton, 475 U.S. 41 (1986), theater owners argued unsuccessfully that their First and Fourteenth Amendment rights had been violated by a zoning regulation that forbid the building of X-rated theaters near residential areas, schools, churches and parks. The Court found that the city was rightly concerned about the "secondary effects" of pornographic theaters, and that in fact quality of life issues were at stake. By analogy, the quality of life of online users can be seen as being affected by the presence of obscene and pornographic material. See also Paul Chavez, CDA May Hinge on Two Previous Cases, MSNBC, March 18, 1997.
Justice Breyer suggested that perhaps the Internet is more like a telephone. He wondered aloud whether a group of high school students discussing their sexual experiences online might appropriately be characterized as simply teenagers talking on the telephone. Breyer appeared genuinely concerned about the prospect of criminalizing such behavior. And since for a great percentage of online users the Internet constitutes communication sent via modems over telephone lines, the analogy to the telephone is arguably not incorrect. And Mr. Ennis reminded the justices that in Sable Communications of Cal, Inc. v. FCC, 492 U.S. 115 (1989) the Court had "in the telephone context" struck down a law that banned "telephone indecent speech."
Justices O'Connor and Kennedy suggested in their questions to Mr. Waxman that the Internet might be considered analogous to "a street corner or a park," raising the question of whether the online world could be viewed as a public forum for purposes of First Amendment analysis. Commentators have wrestled extensively with this issue, and have wondered whether the Internet might actually be characterized as a private shopping mall in this context (see, e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980)) or even as a public parade (see, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995)).
The government, however, would prefer that the Internet be viewed as more akin to broadcast media. The Justice Department's brief relies heavily on FCC v. Pacifica, 438 U.S. 726 (1978), the case that considered the complaints of a father who heard the broadcast of George Carlin's "Seven Dirty Words" monologue with his young son. In Pacifica, the Court found that "broadcasting has the most limited First Amendment protection."
Building on this decision in its brief, the government argues that it should be able to regulate online speech because there is a "danger of inadvertent exposure to indecent material on the Internet as well." Plaintiffs counter, however, with the argument that if the Internet is analogous to any form of media, the most appropriate analogy would be newspapers and magazines -- which are afforded much greater First Amendment protection under constitutional law.
Two other analogies for the Internet were suggested by the attorneys and the justices: private living room and public educational institution. In questions directed at Mr. Waxman, several justices wondered whether a parent permitting a minor child to view indecent material on the Internet in the privacy of their home might be seen as a criminal under the CDA. Waxman answered that "if necessary to save the constitutionality of that provision, th[e] Court...could exempt the provision of this material for parents."
If the Internet were viewed as a public educational institution, however, greater restrictions could arguably apply. Major cases have consistently upheld restrictions in a public school setting that would have certainly been unconstitutional off campus, because of the "special characteristics" of a school environment. See, e.g., Bethel School Dist. v. Fraser, 478 U.S. 675 (1986). However, college and university cases tend to find that students have the same free speech rights as adults in the "real world." Thus the question in this context is whether the Internet is more akin to a public K-12 institution or a public institution of higher education.
In the end, it must be recognized that the Internet can probably be viewed as all of the above: a library, a city, a telephone, a public park, a broadcast medium, a print medium, a private living room, and a public educational institution. Thus the answer to the Supreme Court's inquiry will inevitably become that much harder to ascertain.
A decision in Reno v. ACLU is expected to be handed down some time in June.
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