One of the most fascinating technological developments of our time is the Internet, a system of interconnected computers that allows access to vast amounts of information to millions of people. Originally the outgrowth of a late 1960’s military project called "ARPANET"¹, the Internet has grown from a small collection of 300 computers in 1981 to approximately 9,400,000 host computers in 1996. It is expected to grow at exponential rates in the near future, with approximately 40 million users in 1996, to around 200 million users in 1999.²

The vast amount of information available to Internet users and the ease with which it is accessed raise fundamental questions about the power of information in our society and the protection such information should be given. Just as the Internet provides easy access to almost unlimited amounts of educational information, it also provides similarly easy access to non-educational information, some of which society deems indecent. There has been a great deal of concern, since the introduction of the Internet, that its very nature would allow people to access inappropriate information. Many parents fear that the Internet will allow uncontrollable access by children to indecent material, more specifically, pornography.

The Communications Decency Act, Title V of the Telecommunications Act of 1996³, signed into law on February 8, 1996, was the first attempt by government to take an active role in censoring indecent information available on the Internet to minors. The act outlawed any Internet host from "initiating the transmission" of "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent" knowingly to a recipient under 18 years of age.⁴ The act also outlawed sending information that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" to a minor by "any interactive computer service."⁵ In short, the first part of the act banned any Internet site from transmitting indecent or obscene information to minors on an established web site, and the second part made it illegal to send minors such information by email, mailing list, or similar internet services.

Immediately after the Communications Decency Act, (CDA), became law, twenty plaintiffs filed suit against the Attorney General of the United States and the Department of Justice, arguing that the aforementioned components of the law were unconstitutional. District Judge Buckwalter ordered a temporary restraining order against section §223(a)(1)(B)(ii) of the act, claiming that the term "indecent" was too vague. Another suit was then filed by twenty-seven additional plaintiffs, and the suits were consolidated. A three-judge District Court, required by §561 of the Telecommunications Act, then convened and held a hearing. The District Court issued an injunction against enforcement of both sections of the CDA. In separate but concurring decisions, the judges argued that the first part of the act, regulating information on web sites, was too vague in use of the word "indecent." They argued that the term "indecent" was so broad that it could prohibit speech that warrants protection under the First Amendment. They also argued that the second half of the act was too specific in that it didn’t make reference to "obscenity" or child pornography.

Once the District Court had made its ruling, District Attorney Janet Reno appealed to the Supreme Court, defending the constitutionality of the CDA with four arguments. First, the government cited Ginsberg v. New York,⁷ in which the court held that a New York statute prohibiting the sale of obscene material to minors under the age of 17 was constitutional.

Second, the government cited FCC v. Pacifica Foundation.⁸ In Pacifica, the FCC had banned a broadcast of a twelve-minute monologue entitled "Filthy Words". The company that made the broadcast, Pacifica, then sued the FCC for violating their First Amendment rights to free speech. The Supreme Court sided with the FCC, stating that "the First Amendment does not prohibit all governmental regulation that depends on the content of speech."⁹ The Court also stated that radio is different from other forms of communication, in that children may easily obtain access to broadcasts. Because of this, and the judicial precedent established in Ginsberg, the court ruled the FCC’s actions as "justified special treatment of indecent broadcasting."¹⁰

The final judicial precedent raised by the government was Renton v. Playtime Theaters, Inc.¹¹ In this case, the court upheld a zoning ordinance that forbade adult movie theaters from establishing themselves in residential districts. This, the government argued, showed that government has the right to create special "zones" for indecent material. They argued that the CDA was a comparable attempt to "zone" the Internet into "adult only" and "general" areas.

The Supreme Court ruled, in the majority opinion, that the CDA violated the First Amendment. Justice Stevens wrote the majority opinion, in which Justices Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer joined. Justice O’Conner filed an opinion that concurred with part of the judgement, and dissented in part. Justice Rehnquist joined this opinion.

Stevens’ opinion first struck down the three precedents offered by the government, and then argued that the CDA infringed upon speech protected by the First Amendment. In striking down the government’s precedent in Ginsberg, Stevens argued that there are four major differences between Ginsberg and the CDA. First, in Ginsberg, the Court noted that "the prohibition against sales to minors does not bar parents who so desire from purchasing magazines for their children."¹² Under the CDA, however, even if parents allowed their children to access indecent information, it would still be against the law. Second, the New York Statute in Ginsberg only applied to commercial transactions, while the CDA applies to all transactions. Unlike Ginsberg, the CDA makes it illegal for non-commercial institutions, such as museums with a web page, to transmit indecent material.

The third difference is that the statute in Ginsberg stated that the obscene material must be "utterly without redeeming social importance for minors."¹³ The CDA does not make any such provision, which means that it could prohibit information that would be socially important to minors, such as information about birth control or HIV/AIDS. Finally, while Ginsberg was a prohibition against selling obscene material to children under the age of 17, the CDA made it illegal to transmit such information to children under the age of 18.

Justice Stevens argued that the government’s precedent in Pacifica was also flawed. Pacifica was a ruling about an agency that had been regulating radio for decades; further, the banned program in question was aired at a time, the afternoon, when a large number of children would probably be watching. Justice Stevens argued, "The CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet."

The second difference between Pacifica and the CDA is that the FCC’s decision to ban the program in the former was not punitive; it simply did not permit the program to be broadcast. The Court did not make a ruling as to whether or not the broadcast "would justify a criminal prosecution."¹⁴ The CDA, on the other hand, made it a crime to transmit such information.

In addition, the regulation of radio had a strong judicial precedent by the time Pacifica came to court. Justice Stevens observed that "The Internet, however, has no comparable history."

Finally, Stevens differentiated the CDA from the Court’s decision in Renton. Specifically, he noted that, in Renton, the law was aimed at the secondary effects of adult theaters, such as crime and low property values. However, he argued, "the purpose of the CDA is to protect children from the primary effects of ‘indecent’ and ‘patently offensive’ speech, rather than any ‘secondary’ effect of such speech." Stevens then ruled that the CDA was "a content-based blanket restriction on speech, and, as such, cannot be ‘properly analyzed as a form of time, place, and manner regulation.’"¹⁵ With these arguments, Justice Stevens defeated the government’s claim that the CDA merely "zoned" the Internet.

After rejecting the judicial precedents offered by the government, Justice Stevens began the Court’s analysis of the CDA by citing the case of Southeastern Promotions, Ltd. V. Contrad¹⁶, in which the Court held that "[e]ach medium of expression…may present its own problems." Justice Stevens used this precedent to argue that judicial precedents that apply to radio or television may not necessarily extend to the realm of the Internet.

Justice Stevens then examined the reasons that the court ruled that radio and television could be regulated. He used the example of Sable Communications of California, Inc. v. FCC¹⁷, a case about sexually-oriented telephone messages. Sable, the company that offered the messages, sued the FCC when the Communications Act imposed a prohibition on indecent and obscene interstate commercial telephone messages. The Court observed in this case that one of the primary reasons radio and television could be regulated is that they are an "invasive" form of medium. Once an individual turns on a television or radio, he or she has no further means to regulate the material broadcast on a specific channel. It is possible that a minor, in the absence of any governmental regulation, could unwittingly find indecent material just by turning the television or radio on.

Telephone messages, on the other hand, are not "invasive"; People can not find indecent material just by picking up the phone. As a result, the court ruled that "the dial-in medium requires the listener to take affirmative steps to receive the communication."¹⁸ In addition, because telephone messages require one to give an act of consent, by pressing an additional button before coming in contact with indecent material, the telephone messages were not "invasive". The law prohibiting them, then, did not have the justification for regulation that radio and television have, and it was declared unconstitutional.

To apply Sable to this case, Justice Stevens quoted the District Court’s finding of fact that "the risk of encountering indecent material [over the Internet] by accident is remote because a series of affirmative steps is required to access specific material."¹⁹ This means that government does not have the same right to regulate Internet transmissions as it does radio or television transmissions, because the indecent material on the Internet is not "invasive".

Next, Stevens examined the next precedent for regulating transmissions. In Turner Broadcasting System, Inc. v. FCC²⁰, the court ruled that because television broadcasts are a "scarce" resource, in that there are a limited number of channels that can be utilized for programming, the FCC has the right to regulate television’s content simply because not everything can be broadcast. In the case of the Internet, however, Stevens found: "It provides relatively unlimited, low-cost capacity for communication of all kinds." The "scarce" resource precedent therefore does not apply to the Internet.

Stevens then objected to the vague phrasing of the law. In the first part of the CDA, the term "indecent" is used, while the second refers to "sexual or excretory activities or organs". Stevens argued that "the difference in language will provoke uncertainty among speakers about how the two standards relate to each other, and just what they mean."²¹ This is an important issue, Stevens argues, because, as he puts it: "Could a speaker confidently assume that a serious discussion about birth control practices… or the consequences of prison rape would not violate the CDA?"

This vagueness is particularly troublesome, Stevens argued, because it might prevent someone from speaking their mind over the Internet. Because the law imposes two years in prison for violation, Stevens argued that "the severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguable unlawful words, ideas, and images."²²

Stevens also objected to the vagueness of the term "indecent", in that unlike "obscene", indecent does not have a strong judicial precedent. In Miller v. California,²³ the court established a clear definition of obscenity. The three most important parts of this definition are: that the work labeled obscene, could not, as a whole, appeal "to the prurient interest"; that what is obscene must be defined by "applicable state law"; and the obscene work must lack "serious literary, artistic, political, or scientific value."²⁴ In using the word "indecent", the CDA did not limit itself to this definition. Indecent material could, under the CDA, mean something that did appeal to the common interest of those involved, had value to the society involved, and or was lawful according to the state’s law. For these reasons, the term "indecent", Stevens argued, is "unconstitutionally vague."

Justice Stevens next addressed the repercussions that the CDA would have on adult-to-adult communication. He quoted the precedent of Bolger v. Youngs Drug Products Corporation,²⁵ in which the Court ruled that "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." In other words, the government cannot limit information in adult communication to that which is appropriate to children. Stevens then quoted the District Court’s finding that "Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be a minor and, therefore, that it would be a crime to send the group an indecent message, would surely burden communication among adults.²⁶ In addition, anyone who merely disapproved of indecent speech could log-on to an Internet "chat room", claim that their underage child is watching, and thereby prevent any information from being exchanged. This would mean that speech among adults would be limited to what is acceptable to minors, which, the Court had found earlier, is unacceptable.

In addition, the District Court found that it would be "prohibitively expensive for non-commercial, as well as some commercial, speakers who have web sites to verify that their users are adults.²⁷ The District Court also found that "currently available user-based software suggests that a reasonably effective method by which parents can prevent their children form accessing sexually explicit material…will soon by widely available."²⁸ Justice Stevens concluded that these two findings overwhelm any compelling interest the government may have in regulating the Internet.

The final objection that Justice Stevens raised to the CDA was the requirement that the actions of the transmitter in screening out material to minors be by "good faith, reasonable, effective and appropriate actions."²⁹ Although the government argued that this could be accomplished by some sort of electronic "tagging", which would alert any browser to the presence of sexually explicit material, Stevens argued that the term "effective" put an unreasonable burden on transmitters of adult information. Regardless of whether or not web sites had some method to block out minors, they could be liable for criminal prosecution if their method was not "effective". Stevens then compared the CDA to Sable, in which the Court remarked that the government was "’burn[ing] the house to roast the pig.’"³⁰ Stevens similarly argued: "The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."

The opinion of the majority next rebutted the oral arguments offered by the government. First, Stevens answered the government’s reminder that the Court could save any inadequacies of the CDA by utilizing the severability clause. Stevens replied while the term "indecent" could be struck from the CDA, other parts of the law could not be rendered constitutional simply through the deletion of certain phrases. He quoted the Court’s previous decision that they "will not rewrite a…law to conform it to constitutional requirements."³¹

Next, he rebutted the claim that the amount of indecent information on the Internet would prevent people from logging on, in the fear that they would come in contact with such information. Pointing to the growth the Internet has undergone and will continue to undergo, Justice Stevens found this argument unpersuasive. For all these reasons, the majority upheld the District Court’s decision that the CDA violates the First Amendment and struck down the law.

Justice O’Connor wrote a separate opinion that assented in part with the majority opinion, and dissented in part; Chief Justice Rehnquist joined this opinion. In beginning her argument, Justice O’Connor agreed with government that the CDA was an attempt to create special adult "zones" on the Internet. She argued that the concept of zoning, by itself, is constitutional. She noted that there are many judicial precedents for denying the access of minors to "certain establishments frequented by adults."³² Justice O’Connor also noted that there is strong precedent to shield people under the age of 18 from speech that is "harmful to minors."³³

Justice O’Connor then argued that there are two conditions under which such zoning is constitutional. First, a zoning law must not unduly restrict adult access to the material.³⁴ Second, minors "must have no First Amendment right to read or view the banned material." O’Connor then went on apply these criteria to the Internet.

She noted that Ginsberg assumed that it would be easy to set aside a specific "zone" that only adults could access. The medium of Internet, however, is not so simple: Web sites cannot hire bouncers to check driver’s licenses. Such an idea is ludicrous; it simply doesn’t apply to the medium, and the comparable technology to prevent access by minors is far more complicated. O’Connor argued that to create adult "zones" on the Internet, three conditions would be required: "An agreed upon code (or ‘tag’) would have to exist; screening software or browsers with screening capabilities would have to be able to recognize the "tag"; and these programs would have to be widely available — and widely used — by Internet users". O’Connor found that such screening software "is not in wide-use today", and that "only a handful of browsers have screening capabilities."³⁵

O’Connor agreed with the majority that the Court must "evaluate the constitutionality of the CDA as it exists today."³⁶ Because such information was not then available, however, O’Connor concluded, "a speaker cannot be reasonably assured that the speech he displays will reach only adults". To abide by the law, then, would require all adult speakers to refrain from using indecent speech. The CDA therefore violates the first standard of constitutionality for zoning laws, because it restricts adult-to-adult communication.

Justice O’Connor next considered the second section of the CDA which outlaws transmission of indecent material to any "specific person" via a computer’s electronic mail program. She recognized the argument that the presence of one minor would inhibit adult speech in multi-party conversations and agreed that the CDA is too broad in that it could possibly cover all communications between adults. At this point, however, where the majority had ruled the CDA unconstitutional, Justice O’Connor argued that the Court has the power to interpret the law in such a way as to narrow its scope to constitutional limits. She quoted Brockett v. Spokane Arcades, Inc,³⁷ in which the Court ruled that where "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish…..[t]he statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact." O’Connor accepted the constitutionality of the section of the CDA that outlawed "indecent transmissions" to a "specific person", with the interpretation that this refers to the "transmission of Internet communications where the party initiating the communication knows that all of the recipients are minors." She argued that this interpretation would constrain the CDA to constitutional limits.

Justice O’Connor then addressed the challenge that the CDA might infringe upon the First Amendment rights of minors. She first argued that, based upon the precedent of Broadrick v. Oklahoma³⁸, the plaintiff must show "real" and "substantial" overbreadth. While the CDA may have "some" overbreadth, she found no reason to believe this was substantial. She argued that "while discussions about prison rape or nude art,… may have some redeeming educational value for adults, they do not necessarily have any such value for minors". Because the overbreadth of the CDA is not "substantial", O’Connor argued that the CDA is a constitutional attempt to zone the Internet.

In sum, O’Connor objected only to the extent to which the CDA interfered with the First Amendment rights of adults. She invalidated the first section of the bill for its potential inhibition of all indecent speech. O’Connor then invalidated the CDA to the extent that "specific person" could mean multi-party adult communications, but found the rest constitutional, in respect to conversations between an adult and one or more minors.

The Supreme Court ruled, in the majority, that the CDA was unconstitutional, for violation of the First Amendment. This ruling, however, was largely dependent on the poor wording of the law, and the level of technology available at the time the decision was made. As the Internet develops, and our ability to "zone" information advances, we may see the Internet being divided into "adult-only" and "general" areas (at least among sites in the United States). For now, however, parents concerned with their children accessing indecent information must take the responsibility themselves to monitor, through commercial products or active supervision, what information their children access.