Professor Wendy Seltzer, email wendy.seltzer@brooklaw.edu
Week 2 Readings: Speech and Control |
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Questions for thought: How does the Court see the Internet? What is the
Internet like or unlike?
How did the CDA attempt to control speech on the Internet?
Why do Justice O'Connor and the Chief Justice dissent, in part? How would
they permit Congress to control Internet speech?
The cases below deal with other attempts to regulate "harmful" speech. What are
some of the options and obstacles? How would the different regulations affect Internet
architecture? John Gilmore is often quoted as saying "The Internet interprets censorship as
damage and routes around it." What kind of "routing around" might these regulations
induce?
New York adopted a "state CDA" prohibiting the online communication of speech "harmful
to minors." In American Library Association v. Pataki, 969 F.Supp.160 (S.D.N.Y. 1997), the
district court struck down the New York law on Commerce Clause grounds: "[T]he
Internet is one of those areas of commerce that must be marked off
as a national preserve to protect users from inconsistent legislation that, taken to
its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce
Clause ordains that only Congress can legislate in this area, subject, of course,
to whatever limitations other provisions of the Constitution (such as the First Amendment)
may require."
A French court held Yahoo! responsible for allowing French Internet users to view
Nazi memorabilia other users had posted to Yahoo auctions. League Against Racism and
Anti-Semitism (LICRA) v. Yahoo! Inc., No. RG00/05308 Tribunal de Grande Instance de Paris,
November 20, 2000. After an expert panel indicated that Yahoo could identify French
visitors by IP address or by asking viewers to self-identify, the court ordered
Yahoo to block French users' access to paraphernalia that violated French law. Yahoo
sued for declaratory relief in the U.S. courts, where the case is currently
on appeal. (It also removed most of the questionable material.)
Decision in English available at <http://www.eff.org/legal/Jurisdiction_and_sovereignty/LICRA_v_Yahoo/20001120_fr_int_ruling.en.pdf>, but not required.
Connecticut tried regulating child pornography at a different level. It authorized the state
attorney general's office to force Internet service providers to block Pennsylvania residents' access
to sites the AG's office identified as child pornography. The ISPs had to
block access through their networks – even when there was no claim that the
ISPs were responsible for the sites at issue. Please read the Center for
Democracy and Technology's fact sheet on CDT v. Pappert, 337 F.Supp.2d 606 (E.D.
Penn. 2004), <http://www.cdt.org/speech/pennwebblock/20040915highlights.pdf>
Full decision available at <http://www.yale.edu/lawweb/jbalkin/telecom/cdtvpappert.pdf>, but not required.
The United States and other governments recently put pressure on ICANN, the body that oversees Internet resource assignment, to delay approval of a .XXX top-level domain. ICANN had approved a private organization's application to begin selling .XXX domains. Please read the BBC article "Delay for .xxx 'net sex' domain," <http://news.bbc.co.uk/1/hi/technology/4155568.stm>, and think about why governments and free speech advocates might support or oppose this domain extension.
To make sense of these calls for Internet regulation, courts need to develop
an understanding of how the Internet works. It might help if more lawmakers
did the same. For a good explanation of the Internet's "coordination without control,"
please read Sharon Eisner Gillett and Mitchell Kapor, The Self-governing Internet: Coordination by
Design (1997) <http://ccs.mit.edu/papers/CCSWP197/CCSWP197.html>
Reno v. American Civil Liberties Union
521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)
[The Communications Decency Act of 1996 (“CDA”) provided for expedited review of the
law’s constitutionality, first by a three-judge district court panel, then directly to the
Supreme Court. The district court panel struck down the law as violating the
First and Fifth Amendments.]
STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER,
THOMAS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in
the judgment in part and dissenting in part, in which REHNQUIST, C. J.,
joined.
At issue is the constitutionality of two statutory provisions enacted to protect minors
from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and
importance of the congressional goal of protecting children from harmful materials, we agree
with the three-judge District Court that the statute abridges "the freedom of speech"
protected by the First Amendment.
The District Court made extensive findings of fact, most of which were based
on a detailed stipulation prepared by the parties. The findings describe the character
and the dimensions of the Internet, the availability of sexually explicit material in
that medium, and the problems confronting age verification for recipients of Internet communications. Because
those findings provide the underpinnings for the legal issues, we begin with a
summary of the undisputed facts.
The Internet
The Internet is an international network of interconnected computers. It is the outgrowth
of what began in 1969 as a military program called "ARPANET," which was
designed to enable computers operated by the military, defense contractors, and universities conducting
defense-related research to communicate with one another by redundant channels even if some
portions of the network were damaged in a war. While the ARPANET no
longer exists, it provided an example for the development of a number of
civilian networks that, eventually linking with each other, now enable tens of millions
of people to communicate with one another and to access vast amounts of
information from around the world. The Internet is "a unique and wholly new
medium of worldwide human communication."
The Internet has experienced "extraordinary growth." 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.
Individuals can obtain access to the Internet from many different sources, generally hosts
themselves or entities with a host affiliation. Most colleges and universities provide access
for their students and faculty; many corporations provide their employees with access through
an office network; many communities and local libraries provide free access; and an
increasing number of storefront "computer coffee shops" provide access for a small hourly
fee. Several major national "online services" such as America Online, CompuServe, the Microsoft
Network, and Prodigy offer access to their own extensive proprietary networks as well
as a link to the much larger resources of the Internet. These commercial
online services had almost 12 million individual subscribers at the time of trial.
Anyone with access to the Internet may take advantage of a wide variety
of communication and information retrieval methods. These methods are constantly evolving and difficult
to categorize precisely. But, as presently constituted, those most relevant to this case
are electronic mail ("e-mail"), automatic mailing list services ("mail exploders," sometimes referred to
as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of these
methods can be used to transmit text; most can transmit sound, pictures, and
moving video images. Taken together, these tools constitute a unique medium--known to its
users as "cyberspace"--located in no particular geographical location but available to anyone, anywhere
in the world, with access to the Internet.
E-mail enables an individual to send an electronic message--generally akin to a note
or letter--to another individual or to a group of addressees. The message is
generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and
sometimes making its receipt known through some type of prompt. A mail exploder
is a sort of e-mail group. Subscribers can send messages to a common
e-mail address, which then forwards the message to the group's other subscribers. Newsgroups
also serve groups of regular participants, but these postings may be read by
others as well. There are thousands of such groups, each serving to foster
an exchange of information or opinion on a particular topic running the gamut
from, say, the music of Wagner to Balkan politics to AIDS prevention to
the Chicago Bulls. About 100,000 new messages are posted every day. In most
newsgroups, postings are automatically purged at regular intervals. In addition to posting a
message that can be read later, two or more individuals wishing to communicate
more immediately can enter a chat room to engage in real-time dialogue--in other
words, by typing messages to one another that appear almost immediately on the
others' computer screens. The District Court found that at any given time "tens
of thousands of users are engaging in conversations on a huge range of
subjects." It is "no exaggeration to conclude that the content on the Internet
is as diverse as human thought."
The best known category of communication over the Internet is the World Wide
Web, which allows users to search for and retrieve information stored in remote
computers, as well as, in some cases, to communicate back to designated sites.
In concrete terms, the Web consists of a vast number of documents stored
in different computers all over the world. Some of these documents are simply
files containing information. However, more elaborate documents, commonly known as Web "pages," are
also prevalent. Each has its own address--"rather like a telephone number." Web pages
frequently contain information and sometimes allow the viewer to communicate with the page's
(or "site's") author. They generally also contain "links" to other documents created by
that site's author or to other (generally) related sites. Typically, the links are
either blue or underlined text--sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address
of a known page or enter one or more keywords into a commercial
"search engine" in an effort to locate sites on a subject of interest.
A particular Web page may contain the information sought by the "surfer," or,
through its links, it may be an avenue to other documents located anywhere
on the Internet. Users generally explore a given Web page, or move to
another, by clicking a computer "mouse" on one of the page's icons or
links. Access to most Web pages is freely available, but some allow access
only to those who have purchased the right from a commercial provider. The
Web is thus comparable, from the readers' viewpoint, to both a vast library
including millions of readily available and indexed publications and a sprawling mall offering
goods and services.
From the publishers' point of view, it constitutes a vast platform from which
to address and hear from a world-wide audience of millions of readers, viewers,
researchers, and buyers. Any person or organization with a computer connected to the
Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy
groups, and individuals. Publishers may either make their material available to the entire
pool of Internet users, or confine access to a selected group, such as
those willing to pay for the privilege. "No single organization controls any membership
in the Web, nor is there any centralized point from which individual Web
sites or services can be blocked from the Web."
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat and "extends
from the modestly titillating to the hardest-core." These files are created, named, and
posted in the same manner as material that is not sexually explicit, and
may be accessed either deliberately or unintentionally during the course of an imprecise
search. "Once a provider posts its content on the Internet, it cannot prevent
that content from entering any community." Thus, for example,
"when the UCR/California Museum of Photography posts to its Web site nudes by
Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel
to Baltimore and New York City, those images are available not only in
Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or
Beijing--wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts
to its Web site, written in street language so that the teenage receiver
can understand them, are available not just in Philadelphia, but also in Provo
and Prague."
Some of the communications over the Internet that originate in foreign countries are
also sexually explicit.
Though such material is widely available, users seldom encounter such content accidentally. "A
document's title or a description of the document will usually appear before the
document itself . . . and in many cases the user will receive
detailed information about a site's content before he or she need take the
step to access the document. Almost all sexually explicit images are preceded by
warnings as to the content." For that reason, the "odds are slim" that
a user would enter a sexually explicit site by accident. Unlike communications received
by radio or television, "the receipt of information on the Internet requires a
series of affirmative steps more deliberate and directed than merely turning a dial.
A child requires some sophistication and some ability to read to retrieve material
and thereby to use the Internet unattended."
Systems have been developed to help parents control the material that may be
available on a home computer with Internet access. A system may either limit
a computer's access to an approved list of sources that have been identified
as containing no adult material, it may block designated inappropriate sites, or it
may attempt to block messages containing identifiable objectionable features. "Although parental control software
currently can screen for certain suggestive words or for known sexually explicit sites,
it cannot now screen for sexually explicit images." Nevertheless, the evidence indicates 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 available."
Age Verification
The problem of age verification differs for different uses of the Internet.
The District Court categorically determined that there "is no effective way to determine
the identity or the age of a user who is accessing material through
e-mail, mail exploders, newsgroups or chat rooms." The Government offered no evidence that
there was a reliable way to screen recipients and participants in such fora
for age. Moreover, even if it were technologically feasible to block minors' access
to newsgroups and chat rooms containing discussions of art, politics or other subjects
that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible
to block their access to that material and "still allow them access to
the remaining content, even if the overwhelming majority of that content was not
indecent."
Technology exists by which an operator of a Web site may condition access
on the verification of requested information such as a credit card number or
an adult password. Credit card verification is only feasible, however, either in connection
with a commercial transaction in which the card is used, or by payment
to a verification agency. Using credit card possession as a surrogate for proof
of age would impose costs on non-commercial Web sites that would require many
of them to shut down. For that reason, at the time of the
trial, credit card verification was "effectively unavailable to a substantial number of Internet
content providers." Moreover, the imposition of such a requirement "would completely bar adults
who do not have a credit card and lack the resources to obtain
one from accessing any blocked material."
Commercial pornographic sites that charge their users for access have assigned them passwords
as a method of age verification. The record does not contain any evidence
concerning the reliability of these technologies. Even if passwords are effective for commercial
purveyors of indecent material, the District Court found that an adult password requirement
would impose significant burdens on noncommercial sites, both because they would discourage users
from accessing their sites and because the cost of creating and maintaining such
screening systems would be "beyond their reach."
In sum, the District Court found:
"Even if credit card verification or adult password verification were implemented, the Government
presented no testimony as to how such systems could ensure that the user
of the password or credit card is in fact over 18. The burdens
imposed by credit card verification and adult password verification systems make them effectively
unavailable to a substantial number of Internet content providers."
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an
unusually important legislative enactment. As stated on the first of its 103 pages,
its primary purpose was to reduce regulation and encourage "the rapid deployment of
new telecommunications technologies." The major components of the statute have nothing to do
with the Internet; they were designed to promote competition in the local telephone
service market, the multichannel video market, and the market for over-the-air broadcasting. The
Act includes seven Titles, six of which are the product of extensive committee
hearings and the subject of discussion in Reports prepared by Committees of the
Senate and the House of Representatives. By contrast, Title V--known as the "Communications
Decency Act of 1996" (CDA)--contains provisions that were either added in executive committee
after the hearings were concluded or as amendments offered during floor debate on
the legislation. An amendment offered in the Senate was the source of the
two statutory provisions challenged in this case. They are informally described as the
"indecent transmission" provision and the "patently offensive display" provision.
The first, 47 U.S.C. A. § 223(a) (Supp. 1997), prohibits the knowing transmission of obscene or indecent
messages to any recipient under 18 years of age. It provides in pertinent
part:
"(a) Whoever--
"(1) in interstate or foreign communications--
. . . . .
"(B) by means of a telecommunications device knowingly--
"(i) makes, creates, or solicits, and
"(ii) 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, regardless of whether the maker of such communication placed the call or
initiated the communication;
. . . . .
"(2) knowingly permits any telecommunications facility under his control to be used for
any activity prohibited by paragraph (1) with the intent that it be used
for such activity,
"shall be fined under Title 18, or imprisoned not more than two years,
or both."
The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive
messages in a manner that is available to a person under 18 years
of age. It provides:
"(d) Whoever--
"(1) in interstate or foreign communications knowingly--
"(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or
"(B) uses any interactive computer service to display in a manner available to
a person under 18 years of age,
"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; or
"(2) knowingly permits any telecommunications facility under such person's control to be used
for an activity prohibited by paragraph (1) with the intent that it be
used for such activity,
"shall be fined under Title 18, or imprisoned not more than two years,
or both."
The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5).
One covers those who take "good faith, reasonable, effective, and appropriate actions" to
restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those
who restrict access to covered material by requiring certain designated forms of age
proof, such as a verified credit card or an adult identification number or
code. § 223(e)(5)(B).
…
In arguing for reversal, the Government contends that the CDA is plainly constitutional
under three of our prior decisions: (1) Ginsberg v. New York, 390 U.S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U.S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). A close look
at these cases, however, raises--rather than relieves--doubts concerning the constitutionality of the CDA.
In Ginsberg, we upheld the constitutionality of a New York statute that prohibited
selling to minors under 17 years of age material that was considered obscene
as to them even if not obscene as to adults. We rejected the
defendant's broad submission that "the scope of the constitutional freedom of expression secured
to a citizen to read or see material concerned with sex cannot be
made to depend on whether the citizen is an adult or a minor."
In rejecting that contention, we relied not only on the State's independent interest
in the well-being of its youth, but also on our consistent recognition of
the principle that "the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of our
society." n31 In four important respects, the statute upheld in Ginsberg was narrower
than the CDA. First, we noted in Ginsberg that "the prohibition against sales
to minors does not bar parents who so desire from purchasing the magazines
for their children." Under the CDA, by contrast, neither the parents' consent--nor even
their participation--in the communication would avoid the application of the statute. n32 Second,
the New York statute applied only to commercial transactions, whereas the CDA contains
no such limitation. Third, the New York statute cabined its definition of material
that is harmful to minors with the requirement that it be "utterly without
redeeming social importance for minors." The CDA fails to provide us with any
definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits any
requirement that the "patently offensive" material covered by § 223(d) lack serious literary, artistic,
political, or scientific value. Fourth, the New York statute defined a minor as
a person under the age of 17, whereas the CDA, in applying to
all those under 18 years, includes an additional year of those nearest majority.
In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding
that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words"
that had previously been delivered to a live audience "could have been the
subject of administrative sanctions." The Commission had found that the repetitive use of
certain words referring to excretory or sexual activities or organs "in an afternoon
broadcast when children are in the audience was patently offensive" and concluded that
the monologue was indecent "as broadcast." The respondent did not quarrel with the
finding that the afternoon broadcast was patently offensive, but contended that it was
not "indecent" within the meaning of the relevant statutes because it contained no
prurient appeal. After rejecting respondent's statutory arguments, we confronted its two constitutional arguments:
(1) that the Commission's construction of its authority to ban indecent speech was
so broad that its order had to be set aside even if the
broadcast at issue was unprotected; and (2) that since the recording was not
obscene, the First Amendment forbade any abridgement of the right to broadcast it
on the radio.
In the portion of the lead opinion not joined by Justices Powell and
Blackmun, the plurality stated that the First Amendment does not prohibit all governmental
regulation that depends on the content of speech. Accordingly, the availability of constitutional
protection for a vulgar and offensive monologue that was not obscene depended on
the context of the broadcast. Relying on the premise that "of all forms
of communication" broadcasting had received the most limited First Amendment protection, the Court
concluded that the ease with which children may obtain access to broadcasts, "coupled
with the concerns recognized in Ginsberg," justified special treatment of indecent broadcasting.
As with the New York statute at issue in Ginsberg, there are significant
differences between the order upheld in Pacifica and the CDA. First, the order
in Pacifica, issued by an agency that had been regulating radio stations for
decades, targeted a specific broadcast that represented a rather dramatic departure from traditional
program content in order to designate when--rather than whether--it would be permissible to
air such a program in that particular medium. 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. Second, unlike
the CDA, the Commission's declaratory order was not punitive; we expressly refused to
decide whether the indecent broadcast "would justify a criminal prosecution." Finally, the Commission's
order applied to a medium which as a matter of history had "received
the most limited First Amendment protection," in large part because warnings could not
adequately protect the listener from unexpected program content. The Internet, however, has no
comparable history. Moreover, the District Court found that the risk of encountering indecent
material by accident is remote because a series of affirmative steps is required
to access specific material.
In Renton, we upheld a zoning ordinance that kept adult
movie theatres out of residential neighborhoods. The ordinance was aimed, not at the
content of the films shown in the theaters, but rather at the "secondary
effects"--such as crime and deteriorating property values--that these theaters fostered: "'It is the
secondary effect which these zoning ordinances attempt to avoid, not the dissemination of
"offensive" speech.'" According to the Government, the CDA is constitutional because it constitutes
a sort of "cyberzoning" on the Internet. But the CDA applies broadly to
the entire universe of cyberspace. And 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. Thus, the CDA is a content-based
blanket restriction on speech, and, as such, cannot be "properly analyzed as a
form of time, place, and manner regulation." See also Boos v. Barry, 485 U.S. 312, 321 (1988) ("Regulations that focus on
the direct impact of speech on its audience" are not properly analyzed under
Renton); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation").
These precedents, then, surely do not require us to uphold the CDA and
are fully consistent with the application of the most stringent review of its
provisions.
In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), we observed that "each medium of expression . . . may present
its own problems." Thus, some of our cases have recognized special justifications for
regulation of the broadcast media that are not applicable to other speakers, see
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In these cases, the Court relied on the history of extensive government regulation
of the broadcast medium, see, e.g., Red Lion, 395 U.S. at 399-400; the scarcity of available frequencies at its
inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the enactment
of the CDA have the vast democratic fora of the Internet been subject
to the type of government supervision and regulation that has attended the broadcast
industry. Moreover, the Internet is not as "invasive" as radio or television. The
District Court specifically found that "communications over the Internet do not 'invade' an
individual's home or appear on one's computer screen unbidden. Users seldom encounter content
'by accident.'" It also found that "almost all sexually explicit images are preceded
by warnings as to the content," and cited testimony that "'odds are slim'
that a user would come across a sexually explicit sight by accident."
We distinguished Pacifica in Sable, on just this basis. In Sable, a company engaged
in the business of offering sexually oriented prerecorded telephone messages (popularly known as
"dial-a-porn") challenged the constitutionality of an amendment to the Communications Act that imposed
a blanket prohibition on indecent as well as obscene interstate commercial telephone messages.
We held that the statute was constitutional insofar as it applied to obscene
messages but invalid as applied to indecent messages. In attempting to justify the
complete ban and criminalization of indecent commercial telephone messages, the Government relied on
Pacifica, arguing that the ban was necessary to prevent children from gaining access
to such messages. We agreed that "there is a compelling interest in protecting
the physical and psychological well-being of minors" which extended to shielding them from
indecent messages that are not obscene by adult standards but distinguished our "emphatically
narrow holding" in Pacifica because it did not involve a complete ban and
because it involved a different medium of communication. We explained that "the dial-it
medium requires the listener to take affirmative steps to receive the communication." "Placing
a telephone call," we continued, "is not the same as turning on a
radio and being taken by surprise by an indecent message."
Finally, unlike the conditions that prevailed when Congress first authorized regulation of the
broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It
provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates
that "as many as 40 million people use the Internet today, and that
figure is expected to grow to 200 million by 1999." This dynamic, multifaceted
category of communication includes not only traditional print and news services, but also
audio, video, and still images, as well as interactive, real-time dialogue. Through the
use of chat rooms, any person with a phone line can become a
town crier with a voice that resonates farther than it could from any
soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same
individual can become a pamphleteer. As the District Court found, "the content on
the Internet is as diverse as human thought." We agree with its conclusion
that our cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium.
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. For instance, each of the two parts
of the CDA uses a different linguistic form. The first uses the word
"indecent," 47 U.S.C. A. § 223(a) (Supp. 1997), while the second speaks of material that "in context,
depicts or describes, in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs," § 223(d). Given the absence of a definition
of either term, this difference in language will provoke uncertainty among speakers about
how the two standards relate to each other and just what they mean.
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.
The vagueness of the CDA is a matter of special concern for two
reasons. First, 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. Second, the CDA is a criminal statute. In addition
to the opprobrium and stigma of a criminal conviction, the CDA threatens violators
with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas, and images. As a practical
matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of
vague regulations, poses greater First Amendment concerns than those implicated by the civil
regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S.
__ (1996).
The Government argues that the statute is no more vague than the obscenity
standard this Court established in Miller v. California, 413 U.S. 15 (1973). But that is not so. In Miller, this
Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing
pictures of sexually explicit activities to individuals who had not requested such materials.
Having struggled for some time to establish a definition of obscenity, we set
forth in Miller the test for obscenity that controls to this day:
"(a) whether the average person, applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value."
Because the CDA's "patently offensive" standard (and, we assume arguendo, its synonymous "indecent"
standard) is one part of the three-prong Miller test, the Government reasons, it
cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The second prong
of the Miller test--the purportedly analogous standard--contains a critical requirement that is omitted
from the CDA: that the proscribed material be "specifically defined by the applicable
state law." This requirement reduces the vagueness inherent in the open-ended term "patently
offensive" as used in the CDA. Moreover, the Miller definition is limited to
"sexual conduct," whereas the CDA extends also to include (1) "excretory activities" as
well as (2) "organs" of both a sexual and excretory nature.
The Government's reasoning
is also flawed. Just because a definition including three limitations is not vague,
it does not follow that one of those limitations, standing by itself, is
not vague. Each of Miller's additional two prongs--(1) that, taken as a whole,
the material appeal to the "prurient" interest, and (2) that it "lack serious
literary, artistic, political, or scientific value"--critically limits the uncertain sweep of the obscenity
definition. The second requirement is particularly important because, unlike the "patently offensive" and
"prurient interest" criteria, it is not judged by contemporary community standards. This "societal
value" requirement, absent in the CDA, allows appellate courts to impose some limitations
and regularity on the definition by setting, as a matter of law, a
national floor for socially redeeming value. The Government's contention that courts will be
able to give such legal limitations to the CDA's standards is belied by
Miller's own rationale for having juries determine whether material is "patently offensive" according
to community standards: that such questions are essentially ones of fact. n.
- - - - - - - - - - - - -
- Footnotes - - - - - - - - - - -
- - - -
n. (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive'.
. . . are essentially questions of fact, and our Nation is simply
too big and too diverse for this Court to reasonably expect that such
standards could be articulated for all 50 States in a single formulation, even
assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary community standards"
language of Miller, thus conflicts with the Conferees' own assertion that the CDA
was intended "to establish a uniform national standard of content regulation." S. Conf.
Rep., at 191.
- - - - - - - - - - -
- End Footnotes- - - - - - - - - - -
- - -
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.
VII
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 if less restrictive
alternatives would be at least as effective in achieving the legitimate purpose that
the statute was enacted to serve.
In evaluating the free speech rights of adults,
we have made it perfectly clear that "sexual expression which is indecent but
not obscene is protected by the First Amendment." 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 "reduce the adult population . . . to .
. . only what is fit for children." "Regardless of the strength of
the government's interest" in protecting children, "the level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a sandbox."
Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983).
The District Court was correct to conclude that the CDA effectively resembles the
ban on "dial-a-porn" invalidated in Sable. In Sable, this Court rejected the argument that we
should defer to the congressional judgment that nothing less than a total ban
would be effective in preventing enterprising youngsters from gaining access to indecent communications.
Sable thus made clear that the mere fact that a statutory regulation of
speech was enacted for the important purpose of protecting children from exposure to
sexually explicit material does not foreclose inquiry into its validity. As we pointed
out last Term, that inquiry embodies an "over-arching commitment" to make sure that
Congress has designed its statute to accomplish its purpose "without imposing an unnecessarily
great restriction on speech."
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. 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 minor--and therefore that it would be a crime to send the group
an indecent message--would surely burden communication among adults.
The District Court found that at the time of trial existing technology did
not include any effective method for a sender to prevent minors from obtaining
access to its communications on the Internet without also denying access to adults.
The Court found no effective way to determine the age of a user
who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. As
a practical matter, the Court also found that it would be prohibitively expensive
for noncommercial--as well as some commercial--speakers who have Web sites to verify that
their users are adults. These limitations must inevitably curtail a significant amount of
adult communication on the Internet. By contrast, the District Court found that "despite
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."
The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld
in Ginsberg and Pacifica, the scope of the CDA is not limited to
commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and
individuals posting indecent messages or displaying them on their own computers in the
presence of minors. 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.
For the purposes of our decision, we need neither accept nor reject the
Government's submission that the First Amendment does not forbid a blanket prohibition on
all "indecent" and "patently offensive" messages communicated to a 17-year old--no matter how
much value the message may contain and regardless of parental approval. It is
at least clear that the strength of the Government's interest in protecting minors
is not equally strong throughout the coverage of this broad statute. 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. See 47 U.S.C. A. § 223(a)(2) (Supp. 1997). 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.
The breadth of this content-based restriction of speech imposes an especially heavy burden
on the Government to explain why a less restrictive provision would not be
as effective as the CDA. It has not done so. The arguments in
this Court have referred to possible alternatives such as requiring that indecent material
be "tagged" in a way that facilitates parental control of material coming into
their homes, making exceptions for messages with artistic or educational value, providing some
tolerance for parental choice, and regulating some portions of the Internet--such as commercial
web sites--differently than others, such as chat rooms. Particularly in the light of
the absence of any detailed findings by the Congress, or even hearings addressing
the special problems of the CDA, we are persuaded that the CDA is
not narrowly tailored if that requirement has any meaning at all.
In an attempt to curtail the CDA's facial overbreadth, the Government advances three
additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is
constitutional because it leaves open ample "alternative channels" of communication; (2) that the
plain meaning of the Act's "knowledge" and "specific person" requirement significantly restricts its
permissible applications; and (3) that the Act's prohibitions are "almost always" limited to
material lacking redeeming social value.
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. See Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536 (1980). 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).
The
Government also asserts that the "knowledge" requirement of both §§ 223(a) and (d), especially
when coupled with the "specific child" element found in § 223(d), saves the CDA
from overbreadth. Because both sections prohibit the dissemination of indecent messages only to
persons known to be under 18, the Government argues, it does not require
transmitters to "refrain from communicating indecent material to adults; they need only refrain
from disseminating such materials to persons they know to be under 18." Brief
for Appellants 24. This argument ignores the fact that most Internet fora--including chat
rooms, newsgroups, mail exploders, and the Web--are open to all comers. The Government's
assertion that the knowledge requirement somehow protects the communications of adults is therefore
untenable. 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.
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.
The Government's three remaining arguments focus on the defenses provided in § 223(e)(5). First,
relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government
suggests that "tagging" provides a defense that saves the constitutionality of the Act.
The suggestion assumes that transmitters may encode their indecent communications in a way
that would indicate their contents, thus permitting recipients to block their reception with
appropriate software. It is the requirement that the good faith action must be
"effective" that makes this defense illusory. The Government recognizes that its proposed screening
software does not currently exist. Even if it did, there is no way
to know whether a potential recipient will actually block the encoded material. Without
the impossible knowledge that every guardian in America is screening for the "tag,"
the transmitter could not reasonably rely on its action to be "effective."
For its second and third arguments concerning defenses--which we can consider together--the Government
relies on the latter half of § 223(e)(5), which applies when the transmitter has
restricted access by requiring use of a verified credit card or adult identification.
Such verification is not only technologically available but actually is used by commercial
providers of sexually explicit material. These providers, therefore, would be protected by the
defense. Under the findings of the District Court, however, it is not economically
feasible for most noncommercial speakers to employ such verification. Accordingly, this defense would
not significantly narrow the statute's burden on noncommercial speech. Even with respect to
the commercial pornographers that would be protected by the defense, the Government failed
to adduce any evidence that these verification techniques actually preclude minors from posing
as adults. Given that the risk of criminal sanctions "hovers over each content
provider, like the proverbial sword of Damocles," the District Court correctly refused to
rely on unproven future technology to save the statute. The Government thus failed
to prove that the proffered defense would significantly reduce the heavy burden on
adult speech produced by the prohibition on offensive displays.
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, we remarked that the speech restriction at issue there amounted to
"'burning 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.
…
In this Court, though not in the District Court, the Government asserts that--in
addition to its interest in protecting children--its "equally 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. 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.
DISSENT:
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in
part and dissenting in part.
I write separately to explain why I view the Communications Decency Act of
1996 (CDA) as little more than an attempt by Congress to create "adult
zones" on the Internet. Our precedent indicates that the creation of such zones
can be constitutionally sound. Despite the soundness of its purpose, however, portions of
the CDA are unconstitutional because they stray from the blueprint our prior cases
have developed for constructing a "zoning law" that passes constitutional muster.
Appellees bring a facial challenge to three provisions of the CDA. The first,
which the Court describes as the "indecency transmission" provision, makes it a crime
to knowingly transmit an obscene or indecent message or image to a person
the sender knows is under 18 years old. 47 U.S.C. A. § 223(a)(1)(B) (May 1996 Supp.). What
the Court classifies as a single "'patently offensive display'" provision, see ante, at
11, is in reality two separate provisions. The first of these makes it
a crime to knowingly send a patently offensive message or image to a
specific person under the age of 18 ("specific person" provision). § 223(d)(1)(A). The second
criminalizes the display of patently offensive messages or images "in any manner available"
to minors ("display" provision). § 223(d)(1)(B). None of these provisions purports to keep indecent
(or patently offensive) material away from adults, who have a First Amendment right
to obtain this speech. Thus, the undeniable purpose of the CDA is to
segregate indecent material on the Internet into certain areas that minors cannot access.
See S. Conf. Rep. No. 104-230, p. 189 (1996) (CDA imposes "access restrictions
. . . to protect minors from exposure to indecent material").
The creation of "adult zones" is by no means a novel concept. States
have long denied minors access to certain establishments frequented by adults. States have
also denied minors access to speech deemed to be "harmful to minors." The
Court has previously sustained such zoning laws, but only if they respect the
First Amendment rights of adults and minors. That is to say, a zoning
law is valid if (i) it does not unduly restrict adult access to
the material; and (ii) minors have no First Amendment right to read or
view the banned material. As applied to the Internet as it exists in
1997, the "display" provision and some applications of the "indecency transmission" and "specific
person" provisions fail to adhere to the first of these limiting principles by
restricting adults' access to protected materials in certain circumstances. Unlike the Court, however,
I would invalidate the provisions only in those circumstances.
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 "reduces the adult population . . . to reading only what
is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). The First Amendment does not tolerate such interference. See
id., at 383 (striking down a Michigan criminal law banning sale of books--to minors or adults--that
contained words or pictures that "'tended to . . . corrupt the morals
of youth'"); Sable Communications, supra (invalidating federal law that made it a crime to transmit indecent,
but nonobscene, commercial telephone messages to minors and adults); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983) (striking down a federal
law prohibiting the mailing of unsolicited advertisements for contraceptives). If the law does
not unduly restrict adults' access to constitutionally protected speech, however, it may be
valid. In Ginsberg v. New York, 390 U.S. 629, 634 (1968), for example, the Court sustained a New York law that barred
store owners from selling pornographic magazines to minors in part because adults could
still buy those magazines.
The Court in Ginsberg concluded that the New York law created a constitutionally
adequate adult zone simply because, on its face, it denied access only to
minors. The Court did not question--and therefore necessarily assumed--that an adult zone, once
created, would succeed in preserving adults' access while denying minors' access to the
regulated speech. Before today, there was no reason to question this assumption, for
the Court has previously only considered laws that operated in the physical world,
a world that with two characteristics that make it possible to create "adult
zones": geography and identity. See Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 886 (1996). A minor
can see an adult dance show only if he enters an establishment that
provides such entertainment. And should he attempt to do so, the minor will
not be able to conceal completely his identity (or, consequently, his age). Thus,
the twin characteristics of geography and identity enable the establishment's proprietor to prevent
children from entering the establishment, but to let adults inside.
The electronic world is fundamentally different. Because it is no more than the
interconnection of electronic pathways, cyberspace allows speakers and listeners to mask their identities.
Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for
example, exist at fixed "locations" on the Internet. Since users can transmit and
receive messages on the Internet without revealing anything about their identities or ages,
see Lessig, supra, at 901, however, it is not currently possible to exclude
persons from accessing certain messages on the basis of their identity.
Cyberspace differs from the physical world in another basic way: Cyberspace is malleable.
Thus, it is possible to construct barriers in cyberspace and use them to
screen for identity, making cyberspace more like the physical world and, consequently, more
amenable to zoning laws. This transformation of cyberspace is already underway. Lessig, supra,
at 888-889. Id., at 887 (cyberspace "is moving . . . from a
relatively unzoned place to a universe that is extraordinarily well zoned"). Internet speakers
(users who post material on the Internet) have begun to zone cyberspace itself
through the use of "gateway" technology. Such technology requires Internet users to enter
information about themselves--perhaps an adult identification number or a credit card number--before they
can access certain areas of cyberspace, much like a bouncer checks a person's
driver's license before admitting him to a nightclub. Internet users who access information
have not attempted to zone cyberspace itself, but have tried to limit their
own power to access information in cyberspace, much as a parent controls what
her children watch on television by installing a lock box. This user-based zoning
is accomplished through the use of screening software (such as Cyber Patrol or
SurfWatch) or browsers with screening capabilities, both of which search addresses and text
for keywords that are associated with "adult" sites and, if the user wishes,
blocks access to such sites. The Platform for Internet Content Selection (PICS) project
is designed to facilitate user-based zoning by encouraging Internet speakers to rate the
content of their speech using codes recognized by all screening programs.
Despite this progress, the transformation of cyberspace is not complete. Although gateway technology
has been available on the World Wide Web for some time now, it
is not available to all Web speakers, and is just now becoming technologically
feasible for chat rooms and USENET newsgroups. Gateway technology is not ubiquitous in
cyberspace, and because without it "there is no means of age verification," cyberspace
still remains largely unzoned--and unzoneable. User-based zoning is also in its infancy. For
it to be effective, (i) an agreed-upon code (or "tag") would have to
exist; (ii) screening software or browsers with screening capabilities would have to be
able to recognize the "tag"; and (iii) those programs would have to be
widely available--and widely used--by Internet users. At present, none of these conditions is
true. Screening software "is not in wide use today" and "only a handful
of browsers have screening capabilities." There is, moreover, no agreed-upon "tag" for those
programs to recognize.
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, "reduces the
adult population [on the Internet] to reading only what is fit for children."
Butler, 352 U.S. at 383. As a result, the "display" provision cannot withstand scrutiny.
The "indecency transmission" and "specific person" provisions present a closer issue, for they
are not unconstitutional in all of their applications. As discussed above, the "indecency
transmission" provision makes it a crime to transmit knowingly an indecent message to
a person the sender knows is under 18 years of age. 47 U.S.C. A. § 223(a)(1)(B) (May
1996 Supp.). The "specific person" provision proscribes the same conduct, although it does
not as explicitly require the sender to know that the intended recipient of
his indecent message is a minor. § 223(d)(1)(A). Appellant urges the Court to construe
the provision to impose such a knowledge requirement, and I would do so.
So construed, both provisions are constitutional as applied to a conversation involving only
an adult and one or more minors--e.g., when an adult speaker sends an
e-mail knowing the addressee is a minor, or when an adult and minor
converse by themselves or with other minors in a chat room. In this
context, these provisions are no different from the law we sustained in Ginsberg.
Restricting what the adult may say to the minors in no way restricts
the adult's ability to communicate with other adults. He is not prevented from
speaking indecently to other adults in a chat room (because there are no
other adults participating in the conversation) and he remains free to send indecent
e-mails to other adults. The relevant universe contains only one adult, and the
adult in that universe has the power to refrain from using indecent speech
and consequently to keep all such speech within the room in an "adult"
zone.
The analogy to Ginsberg breaks down, however, when more than one adult is
a party to the conversation. 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.
But these two provisions do not infringe on adults' speech in all situations.
And as discussed below, I do not find that the provisions are overbroad
in the sense that they restrict minors' access to a substantial amount of
speech that minors have the right to read and view. Accordingly, the CDA
can be applied constitutionally in some situations. Normally, this fact would require the
Court to reject a direct facial challenge. Appellees' claim arises under the First
Amendment, however, and they argue that the CDA is facially invalid because it
is "substantially overbroad"--that is, it "sweeps too broadly . . . [and] penalizes
a substantial amount of speech that is constitutionally protected." I agree with the
Court that the provisions are overbroad in that they cover any and all
communications between adults and minors, regardless of how many adults might be part
of the audience to the communication.
This conclusion does not end the matter, however. Where, as here, "the parties
challenging the statute are those who desire to engage in protected speech that
the overbroad statute purports to punish . . . the statute may forthwith
be declared invalid to the extent that it reaches too far, but otherwise
left intact." There is no question that Congress intended to prohibit certain communications
between one adult and one or more minors. See 47 U.S.C. A. § 223(a)(1)(B) (May 1996 Supp.)
(punishing "whoever . . . initiates the transmission of [any indecent communication] knowingly
that the recipient of the communication is under 18 years of age"); § 223(d)(1)(A)
(punishing "whoever . . . sends to a specific person or persons under
18 years of age [a patently offensive message]"). There is also no question
that Congress would have enacted a narrower version of these provisions had it
known a broader version would be declared unconstitutional. 47 U.S.C. § 608 ("If . . . the
application [of any provision of the CDA] to any person or circumstance is
held invalid, . . . the application of such provision to other persons
or circumstances shall not be affected thereby"). I would therefore sustain the "indecency
transmission" and "specific person" provisions to the extent they apply to the transmission
of Internet communications where the party initiating the communication knows that all of
the recipients are minors.
II
Whether the CDA substantially interferes with the First Amendment rights of minors, and
thereby runs afoul of the second characteristic of valid zoning laws, presents a
closer question. In Ginsberg, the New York law we sustained prohibited the sale
to minors of magazines that were "harmful to minors." Under that law, a
magazine was "harmful to minors" only if it was obscene as to minors.
Noting that obscene speech is not protected by the First Amendment, and that
New York was constitutionally free to adjust the definition of obscenity for minors,
the Court concluded that the law did not "invade the area of freedom
of expression constitutionally secured to minors." New York therefore did not infringe upon
the First Amendment rights of minors.
The Court neither "accepts nor rejects" the argument that the CDA is facially
overbroad because it substantially interferes with the First Amendment rights of minors. I
would reject it. Ginsberg established that minors may constitutionally be denied access to
material that is obscene as to minors. As Ginsberg explained, material is obscene
as to minors if it (i) is "patently offensive to prevailing standards in
the adult community as a whole with respect to what is suitable .
. . for minors"; (ii) appeals to the prurient interest of minors; and
(iii) is "utterly without redeeming social importance for minors." Because the CDA denies
minors the right to obtain material that is "patently offensive"--even if it has
some redeeming value for minors and even if it does not appeal to
their prurient interests--Congress' rejection of the Ginsberg "harmful to minors" standard means that
the CDA could ban some speech that is "indecent" (i.e., "patently offensive") but
that is not obscene as to minors.
I do not deny this possibility, but to prevail in a facial challenge,
it is not enough for a plaintiff to show "some" overbreadth. Our cases
require a proof of "real" and "substantial" overbreadth, and appellees have not carried
their burden in this case. In my view, the universe of speech constitutionally
protected as to minors but banned by the CDA--i.e., the universe of material
that is "patently offensive," but which nonetheless has some redeeming value for minors
or does not appeal to their prurient interest--is a very small one. Appellees
cite no examples of speech falling within this universe and do not attempt
to explain why that universe is substantial "in relation to the statute's plainly
legitimate sweep." That the CDA might deny minors the right to obtain material
that has some "value," is largely beside the point. While discussions about prison
rape or nude art, may have some redeeming education value for adults, they
do not necessarily have any such value for minors, and under Ginsberg, minors
only have a First Amendment right to obtain patently offensive material that has
"redeeming social importance for minors." There is also no evidence in the record
to support the contention that "many [e]-mail transmissions from an adult to a
minor are conversations between family members," and no support for the legal proposition
that such speech is absolutely immune from regulation. Accordingly, in my view, the
CDA does not burden a substantial amount of minors' constitutionally protected speech.
Thus, the constitutionality of the CDA as a zoning law hinges on the
extent to which it substantially interferes with the First Amendment rights of adults.
Because the rights of adults are infringed only by the "display" provision and
by the "indecency transmission" and "specific person" provisions as applied to communications involving
more than one adult, I would invalidate the CDA only to that extent.
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.