Reno v. American Civil Liberties Union

521 U.S. 844 (1997), argued 19 March 1997, decided 26 June 1997, by a vote of 7 to 2; Stevens for the Court, O'Connor concurring in the judgment in part and dissenting in part, joined by Rehnquist.

In its first sustained treatment of the regulation of the Internet, the Supreme Court held that Internet speech is entitled to the fullest First Amendment protection.

The issue involved a challenge mounted by an exquisitely selected group—including publishers, civil rights activists, Planned Parenthood, and activists for AIDS awareness and gay rights—to clauses in the Communications Decency Act (CDA) making it a crime to knowingly send an indecent message or image to a specific person under the age of eighteen or to display patently offensive messages or images “in a manner available” to minors.

The deeper question was how to think about the Internet for First Amendment purposes. In rejecting the broadcast regulation model proffered by the government, the Court found that the Internet has no bandwidth scarcity, lacked a long history of government regulation, and was not an “invasive” medium in that “[u]sers seldom encounter content ‘by accident.’” (p. 854).

Thus the First Amendment requires strict scrutiny of content‐based Internet regulation. The Court held that the terms “patently offensive” and “indecent” were vague and chilling given the national scope of the Internet. The CDA's affirmative defenses could not save it in light of the District Court's findings about the ineffectiveness or expense of age verification technologies and adults' constitutional right to material potentially harmful to minors.

The decision did not resolve what “community standard” if any can be applied to salacious content online. And, already, the Internet's lack of pervasiveness seems open to challenge. If age‐verification technology or narrow geographic targeting were to become cheap or ubiquitous, a similar statute might survive strict scrutiny in the future and Justice Sandra Day O'Connor's opinion suggesting that an “attempt by Congress to create ‘adult zones’ on the Internet … can be constitutionally sound” (p. 886), might yet prove prophetic.

— Michael Froomkin

• 117 S.Ct. 2329 (1997)
• Vote: 9–0
• For the Court: Stevens
• Concurring: O'Connor and Rehnquist In 1996 Congress, with the strong support of President Bill Clinton, passed the Communications Decency Act (CDA) to prohibit the transmission of indecent or pornographic messages via e-mail or the Internet. The law made it a crime for a person to send indecent messages by way of an interactive computer network to anyone younger than 18. It also banned Internet displays of pornography that would be accessible to someone under 18. The law did not clearly or precisely define the material to be banned. Rather the act referred to “patently offensive” and “indecent” portrayals of sexual or excretory activities. Convicted violators of the CDA could be fined $25,000, sentenced to two years in prison, or both.

Supporters of the CDA argued that the law served a compelling public interest— the common good of protecting the moral development of preadults. Opponents, however, denounced the CDA as an unconstitutional limitation on 1st Amendment rights to freedom of expression.

The American Civil Liberties Union (ACLU), in concert with other groups including the American Library Association (ALA), filed suit against enforcement of the CDA by the attorney general of the United States, Janet Reno. A three-judge panel of a federal district court agreed with the plaintiffs and ruled that the CDA was unconstitutional. Then the case was appealed to the U.S. Supreme Court.

The Issue

This case raised questions about the extent to which the federal government may regulate the transmission of messages via the new electronically driven mass media, such as the Internet. Should the Court view the Internet as similar to newspapers and books and provide the highest level of constitutional protection to freedom of expression? Or should it treat the Internet the way it has responded to broadcast and cable television and permit greater regulation by government on behalf of the public good? Can all communication on the Internet be limited by federal law for the purpose of protecting children against exposure to indecent messages? Or is the Constitution's 1st Amendment violated by a federal law that would limit all speech on the Internet to the level of a child?

Opinion of the Court

Justice John Paul Stevens wrote, “Not withstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree… that the statute abridges the freedom of speech protected by the First Amendment…. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” So the Communications Decency Act's prohibition of indecent material on the Internet was declared unconstitutional.

Justice Sandra Day O'Connor was joined by Chief Justice William Rehnquist in a concurring opinion. She argued that a federal law, such as the CDA, could be upheld only in cases where it is clear that the transmitter of the material intended the messages exclusively for preadults. She also agreed with Justice Stevens that the CDA was flawed because it did not clearly define or specify the material to be excluded.

Significance

The Court's decision left the Internet to expand freely without strict regulation by government of its content. The executive director of the Center for Democracy and Technology applauded the ruling and claimed, “The Supreme Court has written the Bill of Rights for the 21st century.” Many others, however, sided with Indiana Senator Dan Coats, who regretted that “the Court was telling families to fend for themselves on an Internet of raw indecency.” So parents and other private guardians of the moral development of youth were left with the responsibility of regulating the Internet access of children and teenagers.

Reno v. ACLU
Supreme Court of the United States
Argued March 19, 1997 Decided June 26, 1997
Full case name	Janet Reno, Attorney General of the United States, et al. v. American Civil Liberties Union, et al.
Docket nos.	96-511
Citations	521 U.S. 844 (more) 117 S.Ct. 2329, 2334; 138 L.Ed.2d 874
Prior history	Prelim. injunction granted (3-judge court, E.D. Penn. 1996); expedited review by S.Ct. per CDA §561
Holding
§223(a)(1)(B), §223(a)(2), §223(d) of the CDA are unconstitutional and unenforceable, except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overbroad. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	Stevens, joined by Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer
Concur/dissent	O'Connor, joined by Rehnquist
Laws applied
U.S. Const. Amend. I; 47 U.S.C. § 223

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), is a United States Supreme Court case, in which all nine Justices of the Court voted to strike down anti-indecency provisions of the Communications Decency Act (the CDA), finding they violated the freedom of speech provisions of the First Amendment. Two Justices concurred in part and dissented in part to the decision. This was the first major Supreme Court ruling regarding the regulation of materials distributed via Internet.

The CDA was an attempt to protect minors from explicit material on the Internet by criminalizing the knowing transmission of "obscene or indecent" messages to any recipient under 18; and also the knowing sending to a person under 18 of anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Contents 1 Government's defenses of the CDA 2 Majority opinion 3 Concurring opinion 4 See also 5 Further reading 6 References 7 External links

Government's defenses of the CDA

The government's main defense of the CDA was that similar decency laws had been upheld in three prior Supreme Court decisions: Ginsberg v. New York (1968); F.C.C. v. Pacifica Foundation (1978); and Renton v. Playtime Theaters, Inc. (1986); and that the CDA should be similarly upheld.

In F.C.C. v. Pacifica Foundation, the Supreme Court had upheld the possibility of the FCC delivering administrative sanctions to a radio station for broadcasting George Carlin's monologue titled "Filthy Words". In Reno v. ACLU, though, the Supreme Court held that this was not case law justifying the CDA, as the FCC's sanctions were not criminal punishments; and TV and radio broadcasts, "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", as opposed to Internet users, who must take "a series of affirmative steps" to access explicit material.

Finally, in Renton v. Playtime Theaters, Inc., the Supreme Court had upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The government argued that the CDA was an attempt to institute "a sort of 'cyberzoning' on the Internet". In Reno v. ACLU, however, the Court ruled that the "time, place, and manner regulation" that Renton had enacted was not similar to the CDA, which was "a content-based blanket restriction on speech".

Majority opinion

In a nuanced decision, Justice John Paul Stevens wrote of the differences between Internet communication and previous types of communication that the Court had ruled on. In conclusion, he wrote:

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. (...)

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children." (footnotes removed)

The rest of the CDA, including the "safe harbor" provision protecting ISPs from being liable for the words of others, was not affected by this decision and remains law.

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.

—Opinion of the court, 58¶ 5-6, ^[1]

Concurring opinion

Justice O'Connor, joined by Chief Justice Rehnquist, agreed with the decision "as of 1997", but expressed interest in the idea of creating an "adult zone" on the Internet that was made inaccessible to minors through "gateway technology" that had been investigated by a lower district court. If such technology could be introduced, they wrote, zoning portions of the Internet to prohibit adult content could be as constitutional as such zoning is in the physical world. (See .xxx top-level domain. An alternate proposal promoted by free speech advocates claims that a ".kids" domain would be more feasible and constitutional.)

The two dissented in part, writing they would have invalidated a narrower portion of the two CDA provisions under review.

See also

• List of United States Supreme Court cases, volume 521

Further reading

• Fraleigh, Douglas (2003). "Reno v. ACLU". in Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 298–312. ISBN 081731301X. 
• Leets, Laura (2001). "Responses to Internet Hate Sites: Is Speech Too Free in Cyberspace?". Communication Law and Policy 6 (2): 287–317. doi:10.1207/S15326926CLP0602_2. 
• Rappaport, Kim L. (1997). "In the Wake of Reno v. ACLU: The Continued Struggle in Western Constitutional Democracies with Internet Censorship and Freedom of Speech Online". American University International Law Review 13: 765. ISSN 1520-460X. 
• Axelrod-Contrada, Joan (2007). Reno vs. ACLU: Internet Censorship. Supreme Court Milestones. 99 White Plans Road Torrytown, NY 10591: Marshall Convendish Benchmark. ISBN 978-0-7614-2144-3. http://www.marshallcavendish.us/marshallcavendish-us/index.xml. Retrieved 2009-03-25. 

References

1. ^ http://ftp.resource.org/courts.gov/c/US/521/521.US.844.96-511.html

• First Amendment Library entry on Reno v. ACLU

External links

• decision at FindLaw, with links to decisions citing this one
• Summary at OYEZ
• Netlitigation case summary and review
• Howard Rheingold's testimony as an expert witness

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