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Use of Precedent in Legal Argument
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In 1996, Congress passed the Communication Decency Act. Several sections of the legislation
were challenged as violations of the First Amendment:
Pertinent to the matter now before this court, Section 223(a)(1)(B)
provides:
(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;
Section 223(d) 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, sexuality or
excretory activities or organs, regardless of whether the user of such service placed the call
or initiated the communications;...shall be fined under Title
18 United States Code, or imprisoned not more than two years,
or both.
The American Civil Liberties Union challenged the Law:
ACLU Brief
The Act bans all expression that is "indecent" or "patently offensive"
from all online systems that are accessible to minors. Not only
does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans
"indecent" or "patently offensive" speech entirely, thus impermissibly reducing the adult population to "only what is
fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957).
The Act Violates The First Amendment Because It Criminalizes
Constitutionally Protected Expression
The "indecency" and "patently offensive" standards in Sections
223(a)(1)(B) and 223(d) are unconstitutional because they criminalize
constitutionally protected expression..."indecency" (unlike obscenity) is constitutionally protected
speech that often has substantial social value. Sable Comm. v.FCC, 492 U.S. 115, 126 (1989).
Subject only to "narrow and well-understood exceptions, [the
First Amendment] does not countenance governmental control over
the content of messages expressed by private individuals." Turner Broadcasting System v. FCC, 114 S. Ct. 2445, 2458-59 (1994) (citing R.A.V. v. St. Paul, 112 S. Ct. 2538, 2547 (1992); Texas v. Johnson, 491 U.S. 397, 414 (1989)).
The "indecency" and "patently offensive" provisions...are unquestionably content-based bans, and thus are presumptively
unconstitutional. Content-based regulations of speech will be
upheld only when they are justified by "compelling" governmental
interests and "narrowly tailored" to effectuate those interests. See Turner Broadcasting System, 114 S. Ct. at 2445; Simon & Schuster,
Inc. v. New York State Crimes Victims Bd., 502 U.S. 105 (1991);
Sable Comm. v. FCC, 492 U.S. 115, 126 (1989); Fabulous Assoc.,
Inc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784 (1990).
The Supreme Court has applied strict scrutiny to content-based
regulations because "[a]t the heart of the First Amendment lies the principle
that each person should decide for him or herself the ideas and
beliefs deserving of expression, consideration, and adherence."
Turner Broadcasting System, 114 S. Ct. at 2458.
The censorship provisions of the Act fail this strict scrutiny
test.
First, there is simply no evidence of a "compelling government
interest" in protecting minors from a vague category of "indecent"
or "patently offensive" material in the online medium. When First Amendment rights are at stake, courts cannot defer
to a legislative judgment but must make an independent inquiry
to assess whether the record supports the government's interests. Sable, 492 U.S. at 129; Landmark Comm., Inc. v. Virginia, 435
U.S. 829, 843 (1978); Turner Broadcasting System, 114 S. Ct.
at 2471.
While courts have found "a compelling interest in protecting
the physical and psychological well-being of minors," Sable,
492 U.S. at 126; FCC v. Pacifica Foundation, 438 U.S. 726, 749
(1978); Ginsberg v. New York, 390 U.S. 629, 640 (1968), to discuss that interest in the abstract "is not to scrutinize
the Government's assertions as applied to this case." ACT III,
58 F.3d at 678 (Edwards, C.J. dissenting).
The Department of Justice defended the Law:
DOJ Brief
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR A TEMPORARY
RESTRAINING ORDER
III. DEFENDANTS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS
A. Congress Has Acted Permissibly Under The First Amendment In
Restricting The Availability To Minors Of Online Indecency
1. Congress Has A Compelling Interest In Preventing Minors From Obtaining Access To Online Indecency
2. Congress Has Provided For The "Least Restrictive Means" By Which Online Indecency May Continue To Be Made Available
To Adults Although InaccessibleTo Minors
a. The Defenses To Criminal Liability Provided For In Section
223(e)(5)(B) Incorporate Valid Restrictions Which Have Been Upheld in the "Dial-A-Porn" Context
b. Section 223(e)(5)(A) Provides For Additional "Safe Harbors" From Liability For Providers Of Online Indecency
c. The Availability to Parents of Voluntary Measures Does Not
Constitute a Least Restrictive Alternative
A. Congress Has Regulated Access by Minors to Indecent Materials
in Several Communications Media.
The Communications Decency Act is the latest in a long line of
congressional efforts to protect children from exposure to indecent
material. Congress has acted to regulate the exposure to children of indecent
material in the broadcast medium. See 18 U.S.C. Section 1464.
This includes broadcast of indecent material on the radio, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978), as well as on television. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) ("ACT III"), cert. denied, 116
S. Ct. 701 (1996) (upholding ban on television broadcast of indecent materials
from 10 p.m. to 6 a.m.).
Congress has also regulated access by minors to indecent "dial-a-porn"
telephone messages. 47 U.S.C. Section 223(c); see Dial Information Services v. Thornburqh, 938 F.2d 1535 (2d Cir.
1991), cert. denied, 502 U.S. 1072 (1992); Information Providers, Coalition For Defense of the First Amendment
v. FCC, 928 F.2d 866 (9th Cir. 1991) (upholding criminal prohibition on transmission of indecent
communication to persons under 18 through telephone facilities).
In addition, Congress has regulated access by minors to indecent
material transmitted over certain cable television channels.
Alliance for Community Media v. FCC, 56 F.3d 105, 129 (D.C. Cir.
1995), cert. granted, 116 S. Ct. 471 (1995) (upholding requirement that indecent programming on leased access
channels be blocked to prevent access by minors).
In ACLU v. Reno, the U.S. Supreme Court found the CDA violated the First Amendment.
