Cyberspace Law

The Communications Decency Act—The Continuing Saga

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David Louzecky and Tamara McNulty

In 1996, Congress passed the Communications Decency Act (CDA) as part of major changes to the 1934 Communications Act. Since we last reported on it in the November 1995 issue of New Tech News, the CDA went through some minor language changes; the general import of the law, however, remains the same. In essence, the CDA makes it a felony, punishable by a fine of up to $100,000 or a prison term of up to two years, for anyone to use on-line computer communications to transmit or "display in a manner available to minors" any material that is "indecent" or "patently offensive."

In our first article on the CDA we contended that it is unconstitutional for two reasons. First, the CDA is too vague: it doesn’t define with sufficient clarity what exactly constitutes "indecent" speech, leaving Internet users with no idea what they can and cannot say. Second, the CDA is excessively broad: it punishes speakers and transmitters for speech that is constitutionally protected under the First Amendment even if that speech were used in other media "in a manner available to minors."

FEDERAL COURT ACTION

On the same day the CDA was signed into law by President Clinton, a lawsuit was filed in the United States District Court for the Eastern District of Pennsylvania, sitting in Philadelphia, to prevent enforcement of the CDA. The case, known as ACLU v. Reno, was brought by a number of providers of on-line information, including groups dedicated to providing information on AIDS, prisoner rape, and safe sex for teens.

In June of 1996, the Court, sitting as a three-judge panel, granted the preliminary injunction and made a number of important findings, which we summarize below. One of the most interesting facets of the Court’s decision, however, was procedural. Instead of one judge writing a majority opinion on behalf of the whole panel and the other judges writing opinions which concurred with or dissented from the majority, each judge wrote a separate opinion. This is a rare occurrence and probably happened because none of the three judges wanted to give up the fun of writing an opinion effecting this new form of communication or their place in the history of free speech law.

The decision of the Court consists of both findings of fact and conclusions of law. Among the most important of the findings of fact are:

· The CDA "will almost certainly fail to accomplish the government’s interest in shielding children from pornography on the Internet," since "nearly half of Internet communications originate outside the United States."

· The government failed to meet its burden of establishing a compelling interest in (reason for) regulating speech in on-line communications: banning speech for all of us because minors might see it wasn’t judged to be a compelling reason. (If they could show that speech leads directly to people getting hurt, then they would have a compelling reason.) This finding is important because it means the government did not pass the first prong of "the strict scrutiny test" imposed by courts when the government tries to regulate speech protected by the First Amendment.

· There are many alternative ways of accomplishing the government’s purpose more effectively and less restrictively than an outright ban; these ways include parental use of blocking software and the development of other technology that allows voluntary personal screening. This is important because the Court found that the government did not pass the second prong of "the strict scrutiny test," namely, that regulations must be narrowly tailored.

The Court held as a matter of law that the statute was unconstitutional as written because it violated the First and Fifth Amendments to the Constitution. The statute was excessively broad because it would effectively eliminate all indecent speech for all users. The Court also held that the CDA is excessively vague because no definition of decency is given in the statute itself and no definition has ever been agreed upon in the courts. Thus, people providing content to the Web cannot be sure that what they are posting is not indecent.

The District Court Judges further stated that the plaintiffs had shown irreparable injury, no party had any interest in the enforcement of an unconstitutional law, and the public interest would not be served. They therefore granted a temporary injunction which prohibited the government from enforcing the CDA.

CONGRESSIONAL SECOND THOUGHTS

As the courts attempt to limit an unconstitutional and ineffective piece of legislation, Senators Russell Feingold (D-WI) and Patrick Leahy (D-VT) have introduced a bill (on February 9, 1996) to repeal the CDA portion of the larger Communications Act.

In his floor statements on repealing the CDA, Senator Leahy said that the people who are at risk of committing a felony under the CDA are not child pornographers, purveyors of obscene material, or child molesters. Those people are already prosecuted under 18 U.S.C. §§1465, 2252, and 2423(a), statutes which prevent the distribution over computer networks of obscene and other pornographic materials, prohibit the solicitation of a minor by way of a computer network, and bar the illegal luring of a minor into sexual activity through the computer.

Senators Leahy and Feingold introduced their repeal because of their concern that the CDA sweeps far more broadly than simply stopping obscene materials from being sent to children. Instead, it would impose federal penalties for using four letter words or discussing material deemed indecent on electronic bulletin boards, newsgroups, and chat areas accessible to children.

The Senators were also concerned that the CDA would apply to the racy parts of great works of fiction, such as Catcher in the Rye and Ulysses, and to medical and educational discussions, art works, and even the Victoria’s Secret Catalogue and other items which are perfectly acceptable in the local newspaper. In effect, the Web would be limited to only those things found in a kindergarten class.

In his floor remarks Senator Leahy stated:

Frankly, and I will close with this , Mr. President, at some point we ought to stop saying the Government is going to make a determination of what we read and see, the Government will determine what our children have or do not have.

I grew up in a family where my parents thought it was their responsibility to guide what I read or would not read. They probably had their hands full.... I am sure I read some things that were a total waste of time, but very quickly I began to determine what were the good things to read and what were the bad things.

Should we not say that the parents ought to make this decision, not us in Congress? We should put some responsibility back on families, on parents. They have the software available that they can determine what their children are looking at. That is what we should do. Banning indecent material from the Internet is like using a meat cleaver to deal with problems better addressed with a scalpel.

We should not wait for the courts. Let us get this new unconstitutional law off the books as soon as possible.

Thus, not only were private citizens raising the issue of the constitutionality of the CDA in courts, public officials were questioning the validity of the law they themselves had written and approved.

THE FINAL ARBITER:

ACLU V. RENO GOES TO THE SUPREME COURT

The decision of the Philadelphia Court in ACLU v. Reno was appealed by the government to the United States Supreme Court. The Court certified the case for oral argument, which took place on March 9, 1997.

During the months of preparation, there was much speculation in the press that the Justices would have difficulty understanding the unique problems presented in trying to regulate this new communications medium. None of the Justices have access to the Internet from their office computers, and a number of Justices had never been on the Net. Prior to the oral argument, however, the Justices arranged a seminar for themselves on the Internet, and the consensus in the press was that the Justices, in light of the questions they asked, had a firm grasp of both the legal and technical issues. After the parties emerged from the courthouse for their press conference, Tamara overheard one of the lawyers for the government say to a coworker that when the first question the Justices asked was about CGI scripts, the technology currently used to screen for age on-line, he knew that they were definitely up to speed.

During the oral arguments the Justices were especially interested in a number of issues. First, whether the technology could block material at its source: they questioned both lawyers closely on whether the available technology makes blocking feasible. Lawyers for the Government argued that it is technically possible and that it should be done for the protection of minors. Lawyers for the plaintiffs argued that not only is the present technology prohibitively expensive for most providers of content, but it is also not capable of working at all for many of the methods of communication on the net, for example, individuals posting messages to newsgroups or conversing in chat rooms. Furthermore, present technology is not capable of making value distinctions: a newsgroup posting may mention female sexual organs in the context of a slur or in an educational discussion of AIDS transmission. The technology cannot determine which of these, if either, are indecent.

Second, the Justices were interested in whether Internet speech could be regulated in a manner akin to other speech which the Court had previously dealt with under First Amendment principles. Justices O’Connor, Kennedy, and Ginsburg saw analogies between the Internet and a public sidewalk, where indecent conversations cannot be criminalized. Justice Breyer thought some aspects of the Internet were like the telephone, where the Court has previously found that indecent content cannot be criminalized.

The Justices seemed unusually hostile to an argument made by the plaintiffs that more than forty percent of the content generated on the Web comes from abroad and therefore would be beyond the reach of the criminal penalties of the United States Government. Justice Rehnquist and Justice Scalia both stated that this is no reason for Congress not to act with respect to home generated content.

The plaintiffs’ argument may have been saved, however, by a response to a question from Justice Ginsburg, who asked what other countries regulate speech on the Internet. The response she got gave all the Justices pause. The plaintiffs’ lawyer stated that the countries that currently regulate their citizens access to the Web are China and Iran.

If the Justices do not rewrite the CDA to "save" it, as was urged by the Government, then it seems likely that they will find the Act unconstitutional, as has every other court which has dealt with the CDA. We hope that they too will find, that in spite of the good intentions of the Government in trying to protect other peoples’ children, the law as written cannot stand in light of long held First Amendment principles. When the Government has tried to restrict constitutionally protected speech, the courts have held again and again that they will subject the restriction to "strict scrutiny": the restriction must be reasonably related to an important government interest and narrowly tailored so that the least restrictive means is used to address that interest. The CDA is never going to meet this test.

The outcome of this phase of the continuing saga will probably come sometime in July of 1997 when Supreme Court watchers have predicted that a decision will be rendered in ACLU v. Reno, No. 96-511.