Brief of Reno v. American Civil Liberties Union
written by
for
EOL 469
521 U.S. 844, *; 117 S. Ct. 2329, **;
1997 U.S. LEXIS 4037, ***; 138 L. Ed. 2d 874
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLANTS v.
AMERICAN CIVIL LIBERTIES UNION ET AL.
No. 96-511
SUPREME COURT OF THE UNITED STATES
521 U.S. 844; 117 S. Ct. 2329; 1997 U.S. LEXIS 4037; 138 L. Ed. 2d 874; 65 U.S.L.W. 4715; 25 Media L. Rep. 1833; 97 Cal. Daily Op.
Service
4998; 97 Daily Journal DAR 8133; 11 Fla. Law W. Fed. S 211
Argued March 19, 1997
Decided June 26, 1997
FACTS:
On February 8, 1996, right after the Communications Decency Act was signed into legislation, almost fifty plaintiffs filed suit against the Attorney General of the U.S. and the Department of Justice, claiming that the Communications Decency Act is unconstitutional. Specifically, the two provisions of the Communications Decency Act of 1996 in question are 223 (a) and 223 (d). A three-judge District Court entered a preliminary injunction against the enforcement of both provisions and then declared that they are unconstitutional, stating that they are, "inherently vague." The Government appealed and tried unsuccessfully to make arguments for sustaining the Communications Decency Act's provisions. They argued that the District Court erred in their decision.
ISSUE:
Are the 2 provisions (see below) of the Communications Decency Act constitutional?
Communications Decency Act of 1996:
Section 223 (a) prohibits the knowing transmission of obscene or indecent messages to any recipient under the age of 18.
Section 223 (d) prohibits the "knowing" 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."
THE RULE:
First Amendment (overbroad)
Fifth Amendment (vague)
HOLDING:
Are the 2 provisions of the Communications Decency Act constitutional? NO
The Supreme Court affirmed the District Court's decision that the Communications Decency Act places an unacceptably heavy burden on protected speech.
COURT'S REASONING:
1) The provisions of this Act are vague and contain a "context" for interpretation
2) The remedies suggested by the Government are not persuasive.
3) These provisions are held to abridge free speech protected by the First Amendment. By suppressing the activities intended in these provisions, the rights of adults to exercise their freedom of such speech are violated.
4) The language in these provisions is vague. "Indecent" and "patently offensive" cover large parts of nonpornographic material with serious educational or other value.
5) The Communications Decency Act provisions lack the precision required by the First Amendment when a statute regulates the content of speech.
COMMENTS:
It is ironic that the Government's argument that the CDA provisions should be upheld partly to foster the Internet's growth. This implies that the Internet would become less attractive if it is not controlled by these provisions. Unfortunately, I think the opposite is true. To many, the attraction to the Internet is due to its free nature of being such a quagmire having limitless possibilities, including obscene "adult" sites.
Two defenses offered in light of these provisions cover those who take reasonable action to restrict access to minors. This may include a page that displays a message stating that a person must be 18 to enter. Unfortunately, the computer cannot verify a user's age. The other defense offered involves restricting access by requiring credit card numbers or an adult identification number.
This is a sad commentary on what our society has become. We cannot enforce these provisions in part because they have the potential to limit adult freedoms which we proclaim children not yet possess. It's a very, "Do as I say, not as I do" attitude. I suppose that morality and ethics cannot be legislated. Of course, what I consider to be of low ethical or moral quality will vary widely from other people who inhabit this planet.
How ironic it is that the decision of this case may actually protect some commercial purveyors of obscene postings by allowing them to "hide" behind the excuse that they are not "intending" children under 18 to view their sites. All they need to do is put a "disclaimer" on the page which contains the link to the "obscene" material. These people will use the natural curiosity of children under 18 to attract them. The sites may even look more attractive to the minors if they are told tat they "shouldn't" go there. Isn't telling someone they can't do something an almost sure way to persuade them to do something?