* The Government Tries – And Fails – To Regulate ‘Indecency’ On The Internet

The ACLU successfully challenged the Communications Decency Act (CDA) in US District Court on the grounds that it was unconstitutional on its face.

By Erik J. Heels

First published 9/1/1996; Student Lawyer magazine, “Online” column; publisher: American Bar Association

Score one for the ACLU (and friends). They successfully challenged the Communications Decency Act (CDA) in US District Court on the grounds that it was unconstitutional on its face.

On June 11, 1996, the Court granted the ACLU’s motion for a preliminary injunction, which prevents the Department of Justice (DOJ) from enforcing certain provisions of the CDA. American Civil Liberties Union v. Jane Reno (E.D. Penn. 1996) (No. 96-963.).

The Communications Decency Act of 1996 (CDA), part of the Telecommunications Act of 1996, was signed into law by President Clinton on February 8, 1996. The bills that became the CDA gained widespread attention in the Internet community. Public interest groups such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) loudly criticized the CDA as an unconstitutional restriction on speech.

Specifically, two provisions of the CDA were challenged by, among others, the ACLU.

Section 223(a) of the CDA criminalizes “indecent” speech on the Internet. Section 223(a)(1)(B) states that any person in interstate or foreign communications who, “by means of a telecommunications device,”[5] “knowingly … makes, creates, or solicits” and “initiates the transmission” of “any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age,” “shall be criminally fined or imprisoned.” This is commonly referred to as the “indecency” provision.

Section 223(d)(1) criminalizes using an “interactive computer service”[6] to “send” or “display in a manner available” to a person under age 18, “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication.” This is commonly referred to as the “patently offensive” provision.

These two provisions raise many questions. What does the Government mean by “indecent”? By “patently offensive”? Since the Internet is international, which community defines the appropriate standard? What is the purpose of the CDA?

Thus the question at issue in this case was whether the “indecency” provision and the “patently offensive” provisions were unconstitutional restrictions on speech. Plaintiffs sought an injunction on the grounds that they would be irreparably harmed by the legislation.

The Government argued that statutory defenses of the CDA provide a “safe harbor” to those who fear prosecution. For example, it would be a defense if an Internet content provider had reasonably tried to prevent minors from accessing “indecent” and “patently offensive” material. Specifically, the Government proposed three defenses for content providers — age verification by credit card, password, or “tagging”.

The Court’s decision (about 82 pages) starts with 123 paragraphs of findings of fact. Some of those paragraphs accurately describe the Internet and its history. Some confuse or misstate Internet terminology, such as paragraph 34, which refers to the World-Wide Web as “W3C,” which is the abbreviation for the World-Wide Web Consortium a group of R&D organizations (including MIT and CERN, the European Laboratory for Particle Physics) that supports and promotes the WWW. Other paragraphs sound more like free advertising than findings of “fact.” See paragraph 68, which states “SurfWatch is available at over 12,000 retail locations, including National stores such as Comp USA, Egghead Software, Computer City, and several national mail order outlets. SurfWatch can also be ordered directly from its own site on the World Wide Web, and through the Internet Shopping Network.”

The Court’s findings of fact can be summed up as follows. The Internet is international, with only 60% of it in the US (paragraph 3). Efforts have been made by the World-Wide Web Consortium and commercial organizations to provide parents with the means to control what their children see on the Internet (paragraphs 49-73). “[C]ontent on the Internet is as diverse as human thought (paragraph 74). The Government’s proposed defenses for content providers — age verification by credit card, password, or “tagging” — are all either financially or technically impractical (paragraphs 97-116).

The First Amendment states, in part, that “Congress shall make no law … abridging the freedom of speech, or of the press…” Constitutional jurisprudence tells us that “no law” does not mean no law. It means that the Government may only regulate certain types of speech if it has a compelling reason to do so and if it does so in the least restrictive manner. Sable Communications v. FCC, 492 US 115, 126 (1989). Among the types of speech that the Government excludes from First Amendment protection are obscenity, Miller v. California, 413 US 15 (1973), and child pornography, New York v. Ferber, 458 US 747 (1982).

Based on the Court’s findings of fact, its findings of law — that the CDA is unconstitutional — were a foregone conclusion. But the three-judge panel did not agree on why the challenged CDA provisions were unconstitutional.

Chief Judge Dolores K. Sloviter (Court of Appeals for the Third Circuit) acknowledged that the Government has a compelling interest in protecting minors from certain Internet content, but that the means it chose to do so effectively bans a broad range of protected speech. Judge Sloviter declined Government requests to imposing a narrowing construction on the statute, stating that if the Government had wanted to draft a law limited to commercial pornographers, then that’s what it should have done. Regarding the Government’s safe-harbor defenses to prosecution, she stated that “[a] successful defense to a criminal prosecution would be small solace” to a content provider. She also noted that examples of conduct that the Government proffered as candidates for prosecution under the CDA were already being successfully prosecuted under existing laws. See United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995) (affirming obscenity convictions for the operation of a computer bulletin board).

Judge Ronald L. Buckwalter (District Judge for the Eastern District of Pennsylvania) concurred with Judge Sloviter. Judge Buckwalter pointed out that the government in arguing this case failed to agree on what the term “indecent” means and that “[i]n statutes that break into relatively new areas, such as this one, the need for definition of terms is greater…”

Judge Steward Dalzell’s (District Judge for the Eastern District of Pennsylvania) opinion is likely to cause the most controversy. Judge Dalzell first dips into the morass of “legislative history” to conclude that “indecent” and “patently offensive” mean the same thing. He then concludes that “indecent” is not vague, and that that term has been defined by free speech radio and telephone cases.

The opposite conclusion more logically follows. If Congress had wanted to use “indecent” in 223(d), it could have done so. It also could have included definitions for “indecent” and “patently offensive,” but it chose not to. What the Government wanted was wide prosecutorial discretion to prosecute as it saw fit. It wanted the plaintiffs in this case and other content providers to simply trust they the Government would only go after the bad guys. Judge Sloviter’s opinion dismisses the notion that these plaintiffs — or anybody else — should have to trust the Government with overly broad legislation.

Next, Judge Dalzell notes that the Supreme Court has treated different media of communication differently. Interestingly, Judge Dalzell had not problems defining “indecent” from radio and telephone cases. In general, print media have been given more protection under the First Amendment then the broadcast media. He then concludes that because of the Internet’s “special attributes” that “Congress may not regulate indecency on the Internet at all.” He then departs on a tangent about Holmes’s view that “the best test of truth is the power of the thought to get itself accepted in the competition of the market…” Abraham v. United States, 250 US 616, 630 (1919) (Holmes, J., dissenting). And how the Internet is the best marketplace of free ideas that the US has ever seen, devoid of the financial barriers of print and broadcast media. All of this is interesting reading, but I don’t understand how it is relevant to the questions of whether “indecent” and “patently offensive” are unconstitutionally vague or broad.

One statement made by Judge Dalzell contradicts the Court’s own findings of fact. That “[t]he Government could also completely ban obscenity and child pornography from the Internet.” Given that only 60% of the Internet is within the US (see findings of fact paragraph 3), I fail to see how the US Government could successfully impose such a ban.

It appears that when the Government seeks to regulate speech, it must define its terms so that they are not vague, and it must narrowly draft legislation to address the particular issue at hand. In this case, the Government set out to protect children from pornography on the Internet, but it drafted a law that failed to do so. And it appears that existing laws are sufficient to allow the DOJ to prosecute obscenity and child pornography cases. Ironically, the commercial pornographers would have been least affected by the CDA, since most of them already have some sort of adult verification system in place, whether by credit card or otherwise.

Keep in mind that this is an election year. I believe that those who voted in favor of the CDA did so in order to satisfy their constituents’ desire to protect children from pornography on the Internet. I’m also convinced that they knew that the CDA was unconstitutional on its face. Perhaps the most surprising thing about this case is that it took about 82 pages to come to the obvious conclusion that the CDA is unconstitutional on its face (either because its terminology was too vague or too broad, depending on which judge you believe).

We have certainly not heard the end of this case, as the Government has indicated its intent to appeal. It make take a Supreme Court ruling to answer some of these questions. And Congress will certainly continue to legislate in this area as well. Did I mention that it is an election year?

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