Congress enacted the Communications Decency Act (CDA) as Title V of the Telecommunications Act of 1996 in an attempt to prevent minors from gaining access to sexually explicit materials on the Internet.

CDA prohibited transmitting obscenity to minors

Title V was not included in the initial drafts of the telecommunications act — whose purpose was to encourage new technologies and reduce regulation of the relevant industries in order to promote competition among service providers — but was instead offered as an amendment in the Senate after congressional hearings.

The CDA prohibited any individual from knowingly transmitting “obscene or indecent” messages to a recipient under the age of 18. It also outlawed the “knowing” display of “patently offensive” materials in a manner “available” to those under 18. This provision potentially included any individual providing content without a mechanism for verifying the age of the viewer, potentially requiring commercial and noncommercial content providers to institute costly screening procedures in order to avoid criminal prosecution.

The penalties for violating both provisions included fines, imprisonment, or both.

Congress included Miller test as guide in Communications Decency Act

Congress took measures to inoculate the CDA against constitutional challenge under the First Amendment by identifying material subject to prohibition under the act.

It mimicked intentionally the language in Miller v. California (1973) defining obscene speech, which does not enjoy First Amendment protection. The Miller test makes specific reference to materials “patently offensive” according to “contemporary community standards.”

The CDA borrowed this language in prohibiting the use of computer services to display to minors “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.” The CDA also included a severability clause, directing any court holding portions of the statute unconstitutional to preserve the constitutionality of other portions of the statute.

ACLU and American Library Association challenged constitutionality

Immediately after President Bill Clinton signed the statute into law, the American Civil Liberties Union and numerous other organizations challenged its constitutionality. The American Library Association filed a separate suit attacking the CDA. Both lawsuits targeted the provisions criminalizing “indecent” and “patently offensive” online communications, but not the provision criminalizing obscene online expression.

A district court judge issued a temporary injunction against enforcement on the grounds that the term indecent was too vague to form the basis for criminal prosecution and might, as a result, well violate the Fifth Amendment.

A three-judge district court panel held that the CDA violated the First and Fifth Amendments, but permitted enforcement of the provisions specifically related to investigation and prosecution of obscenity and child pornography. The government appealed.

Supreme Court rules CDA violated First Amendment

In Reno v. American Civil Liberties Union (1997), the Court ruled the CDA to be unconstitutionally overbroad because it suppressed a significant amount of protected adult speech in the effort to protect minors from potentially harmful speech.

The opinion for the Court written by Justice John Paul Stevens acknowledged the legitimacy of the government’s interest in protecting children from harm while also noting that the level of suppression was unacceptable.

The use of indecent and patently offensive, far from narrowing the scope of the act, broadened its provisions to include any materials concerning sexual or excretory functions, regardless of whether such materials conformed to the other prongs of the Miller test, that is, appealing to a prurient interest and lacking other value.

The Court worried that health care materials, explicit discussions of techniques to prevent the transmission of AIDS, and other useful protected speech could be affected.

The decision affirmed the district court’s ruling, with all portions of the CDA, save those referring only to obscene speech, being declared unconstitutional. The obscenity provisions were deemed valid, as they simply prohibited speech that was not subject to First Amendment protection and were not challenged by the plaintiffs.

After the Court’s decision, Congress drafted another online pornography law called the Child Online Protection Act (COPA) of 1998, which has also fared poorly before the Supreme Court.

This article was originally published in 2009. Sara L. Zeigler is the Dean of the College of Letters, Arts, and Social Sciences at Eastern Kentucky University.

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