Highlights from the decision of JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al., APPELLANTS v. AMERICAN CIVIL LIBERTIES UNION et al. (No. 96-511). Supreme Court Justice John Paul Stevens wrote the majority opinion, which was not as voluminous as the District Court opinion, but informative nonetheless. (The full text of the Supreme Court's syllabus, opinion, and concurrence can all be found here.)

"We agree with [the District Court's] conclusion that ... cases [cited by the Government as precedents] provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium."
-- from Justice Stevens' Majority Opinion

"Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment."
-- from Justice Stevens' Majority Opinion

"Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials."
-- from Justice Stevens' Majority Opinion

"... the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech."
-- from Justice Stevens' Majority Opinion

"In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute."
-- from Justice Stevens' Majority Opinion

"We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In 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. That burden on adult speech is unacceptable ..."
-- from Justice Stevens' Majority Opinion

"In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual expression which is indecent but not obscene is protected by the First Amendment." ... ("[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression"). Indeed, Pacifica itself admonished that "the fact that society may find speech offensive is not a sufficient reason for suppressing it." ... It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. ... But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population . . . to . . . only what is fit for children." ... "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." ..."
-- from Justice Stevens' Majority Opinion

"In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult to adult communication. The findings of the District Court make clear that this premise is untenable."
-- from Justice Stevens' Majority Opinion

"By contrast, the District Court found that "[d]espite its limitations, currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available."
-- from Justice Stevens' Majority Opinion

"The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value. ... Moreover, the "community standards" criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message. ... The regulated subject matter includes any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony. ... It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library."
-- from Justice Stevens' Majority Opinion

"Under the CDA, 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. ... Similarly, 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."
-- from Justice Stevens' Majority Opinion

"The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities--such as chat groups, newsgroups, and mail exploders--it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. ... This argument is unpersuasive because the CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore inapplicable. ... It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for database management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content--we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939)."
-- from Justice Stevens' Majority Opinion

"Even the strongest reading of the "specific person" requirement of 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child--a "specific person . . . under 18 years of age," 47 U. S. C. A. 223(d)(1)(A) (Supp. 1997)--would be present."
-- from Justice Stevens' Majority Opinion

"Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions. "
-- from Justice Stevens' Majority Opinion

"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 unconstitutional provision. In Sable, 492 U. S., at 127, 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."
-- from Justice Stevens' Majority Opinion

"The "indecency" provision, 47 U. S. C. A. 223(a) (Supp. 1997), applies to "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent." (Emphasis added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment protection. ... Therefore, we will sever the term "or indecent" from the statute, leaving the rest of 223(a) standing. In no other respect, however, can 223(a) or 223(d) be saved by such a textual surgery."
-- from Justice Stevens' Majority Opinion

"This Court "will not rewrite a . . . law to conform it to constitutional requirements." "
-- from Justice Stevens' Majority Opinion

And finally . . .

"In this Court, though not in the District Court, the Government asserts that--in addition to its interest in protecting children--its "[e]qually significant" interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. ... The Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.

We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. [The beginning of the Decision stated as an "undisputed fact" that "The Internet has experienced "extraordinary growth." [n.5] The number of "host" computers--those that store information and relay communications--increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999." -- Chris F.] 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.

For the foregoing reasons, the judgment of the district court is affirmed. It is so ordered. "
-- from Justice Stevens' Majority Opinion

In a sort-of-but-not-quite-almost dissent, Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist wrote a separate "concurrence" to the above decision. I qualify it that way because even though Justice O'Connor didn't reject the CDA as vigorously as her colleagues ("...in my view, the CDA does not burden a substantial amount of minors' constitutionally protected speech," and "Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. The Court reaches a contrary conclusion, and from that holding that I respectfully dissent."), she still for the most part agreed with the decision to strike down the law as unconstitutional. Here are some of the highlights from her concurrence, which Justice Rehnquist joined. (The full concurrence can be viewed here.)

"Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the regulated speech. If they cannot, the law does more than simply keep children away from speech they have no right to obtain--it interferes with the rights of adults to obtain constitutionally protected speech and effectively "reduce[s] the adult population . . . to reading only what is fit for children." . . . The First Amendment does not tolerate such interference."
-- Justice Sandra Day O'Connor's Concurrence

"Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Ante, at 36. Given the present state of cyberspace, I agree with the Court that the "display" provision cannot pass muster. Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an "adult zone." Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, "reduce[s] the adult population [on the Internet] to reading only what is fit for children." . . . As a result, the "display" provision cannot withstand scrutiny." -- Justice Sandra Day O'Connor's Concurrence

"If a minor enters a chat room otherwise occupied by adults, the CDA effectively requires the adults in the room to stop using indecent speech. If they did not, they could be prosecuted under the "indecency transmission" and "specific person" provisions for any indecent statements they make to the group, since they would be transmitting an indecent message to specific persons, one of whom is a minor. . . . The CDA is therefore akin to a law that makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store. Even assuming such a law might be constitutional in the physical world as a reasonable alternative to excluding minors completely from the store, the absence of any means of excluding minors from chat rooms in cyberspace restricts the rights of adults to engage in indecent speech in those rooms. The "indecency transmission" and "specific person" provisions share this defect. " -- Justice Sandra Day O'Connor's Concurrence

Jump Back to the Top!
Return to CENSORSHIP.
RETURN TO FREE NEW YORK!