RENO v. ACLU, 521 U.S. 844 (1997)

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RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES UNION et al.

  • appeal from the united states district court for the eastern district of pennsylvania
  • No. 96-511.
  • Argued March 19, 1997
  • Decided June 26, 1997

Communication Decency Act of 1996 (CDA)

  • Two provisions protect minors from harmful material on the internet
    • ""knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age"
    • ""knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.""
  • Plaintiffs have challenged the constitutionality

Contents

Supreme Court summary

"The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials"

Held that the 2 provisions violate the 1st amendment

  • child porn investigations exempted
  • "over-broad"
  • "vague"
  • not supported by precedent
  • doesn't allow for parents to give consent
  • can't use TV/radio precedent for internet
  • screening/tagging software provision == vapor
    • no such software exists!
    • no way to verify efficacy
  • notion that indecent material is driving people away from the internet is "singularly unpersuasive"

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al., APPELLANTS v. AMERICAN CIVIL LIBERTIES UNION et al.

  • U.S. Supreme Court
  • No. 96-511
  • JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al., APPELLANTS v. AMERICAN CIVIL LIBERTIES UNION et al.
  • on appeal from the united states district court for the eastern district of pennsylvania
  • June 26, 1997

Who wrote it?

  • Justice Stevens delivered the opinion of the Court

Facts

"The Internet is ... "

  • Descriptions of the various common services
  • Access requires "a series of affirmative steps more deliberate" than operating a radio or TV

Internet is not invasive

  • Nor has it been subject to regulation (as has broadcast)

"Sexually explicit material on the Internet includes ... "

  • Created, maintained, posted in the "same manner" as material that is not sexually explicit
  • May be accessed either deliberately or unintentionally
  • Some s.e. material originates outside of the US
  • Users rarely access accidentally, many opportunities to avoid
  • No 100% reliable filtering software exists
    • But "soon be available"?

Age verification

  • Context-dependent problem
  • Not possible to prevent minors from accessing
    • Without also preventing access to non-restricted materials
  • Credit card verification is one method
    • But burdensome for smaller, non-comm sites
    • Also unfairly blocks adults without CCs
  • Password control is not entirely reliable
    • Also burdensome for smaller sites

Legally important facts

Telecommunications Act of 1996

  • Title V, the Communications Deceny Act of 1996 (CDA) is unlike the other seven titles
    • Not the product of "extensive committee hearings"
    • Rather added in "executive committee after the hearings" or amendments during floor debate

Two prohibitions added during Senate debate:

  • Indecent transmission
  • Patently offensive display

Prohibitions qualified by two affirmative defenses

  • "Good faith, reasonable, effective, and appropriate actions" to prevent minor access
  • Age verification implementations

Prior procedural posture

After CDA was passed,

  • Feb 8 1996: 20 plaintiffs filed suit against the Atty General of the US and the DoJ challenging the constitutionality of 223(a)(1) and 223(d)
  • Feb 15, 1996: District Judge Buckwalter entered temporary restraining order against enforcement of 223(a)(1)(B)(ii) because of vagueness
  • Second lawsuit with 27 add'l plaintiffs filed
    • Consolidated with first case
  • District Court entered preliminary injunction against enforcement of both challenged provisions
    • Preserves govt right to investigate, prosecute child pornography

Chief Judge Sloviter

  • Statute "sweeps more broadly than neccessary"
  • "Chills expression of adults"
  • Vague terms ("patently offensive", "indecent")
  • Affirmative defenses not feasible (techno, econo)
  • Rejected narrowing the applicability only to commercial pornographers

Judge Buckwalter

  • Vague terms
    • Lead to enforcement that would violate First and Fifth
  • Note: "indecency has not been defined to exclude works of" artistic, political, scientific value
  • Unique nature of the Internet "aggravated the vagueness"

Judge Dalzell

  • Congress can't regulate protected speech online
  • Believed CDA would restrict non-commercial speakers while not affecting commercial actors
  • Suggested the need for "medium specific" approach
"The most participatory form of mass speech yet developed [is entitled to] the highest protection from government intrusion."

Issue to be decided

Did the District Court decide in error?

  • Or does the CDA violate the First because of being overbroad, and
  • the Fifth because of vagueness?

Law that applies

Government claims CDA is constitutional because of 3 prior decisions:

Ginsberg v. New York, 390 U.S. 629 (1968)

  • SCOTUS upheld constitutionality of NY statute that prohibited selling to minors material that they found obscene
    • Even if adults did not find it obscene
  • Parents have authority in the raising of their children

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

Broadcast recording of Carlin's "Filthy Words" bit in the afternoon

  • Respondent argues that because it contained "no prurient appeal", it was free speech
  • SCOTUS concluded based on context
    • Too easy for children to gain access

Pacifica not applicable to CDA,

  • Concerns a single broadcast
  • Issued by agency with 40 yr history of regulating radio
  • Internet has no comparable history
    • Little possibility for accidental exposure

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)

SCOTUS upheld ordinance that kept adult movie theaters out of residential neighborhoods

  • Because it wasn't about the content of films but the "secondary effects"
  • Cannot apply to CDA because CDA is concerned with content

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989)

"Dial-a-porn" services

  • Require "affirmative steps" (like net, unlike radio)
  • SCOTUS held the Communication Act based on "obscene" messages
    • But not to "indecent" interstate messages

Miller v. California, 413 U.S. 15 (1973)

Government argues that the definition of "patently offensive" in the CDA is comparable to the language in Miller

  • SCOTUS says it is vague because it does not fall back on state law
    • Also the other two "prongs" of Miller limit the vague one
  • Also, Miller limited to "sexual conduct"
    • CDA includes "organs", "excretory activities"

Court's holding

CDA is so vague that it violates the Fifth

  • Two parts, two different "linguistic forms"
  • Neither indecent nor offensive is defined

Vagueness is problematic for two reasons:

  • Chilling effect on free speech because vagueness concerns content of speech
  • CDA is criminal statute, violators face imprisonment
    • Severe punishment may make speakers silent

Dissent/joining opinion

"Because therights 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." -- Justice O'Connor
Retrieved from "http://www.kevindriscoll.org/wiki/RENO_v._ACLU,_521_U.S._844_(1997)"
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