Free Speech Rights Apply in Cyberspace: CDA Declared Unconstitutional

By Alan Gahtan - July 14, 1997

The U.S. Supreme Court has ruled that free-speech rights granted under the Constitution apply in cyberspace. Reno v. ACLU (No. 96-511, June 26, 1997), a historic ruling released June 26, 1997, strikes down two key provisions of the Communications Decency Act, a federal law that sought to impose restrictions on material placed on the Internet.

At issue was the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Violators risked a sentence of up to two years in jail and a US$250,000 fine. The high court found that, notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, the statute abridges "the freedom of speech" protected by the First Amendment.

The holding, which came as no surprise to most observers, affirms the decision of a three-judge District Court in Pennsylvania issued in June 1996 which entered a preliminary injunction against enforcement of both of the challenged provisions, declaring the law unconstitutionally broad and vague.

In its decision, the Supreme Court acknowledged that sexually explicit material is available on the Internet and that such material "extends from the modestly titillating to the hardest core." Although such material is widely available, it found that it is seldom encountered accidentally. A document’s title or a description of the document will usually appear before the document itself and, in many cases, the user will receive detailed information about a site’s content before he or she need take the step to access the document.

The Court distinguished prior cases which recognized special factors justifying regulation of broadcast media (i.e., radio and television). It found that almost all sexually explicit images on the Internet are preceded by warnings as to the content. In comparison with broadcasting, the receipt of information on the Internet requires a series of affirmative steps more deliberate and direct than merely turning a dial. The Internet was found not to be as invasive as radio or television transmissions. Also, another justification for regulation of the broadcast spectrum, the scarcity of frequencies, was not applicable to the Internet.

The Court also acknowledged the availability of systems that have been developed to help parents control material that may be accessed through a home computer with Internet access (examples include Net Nanny, SurfWatch and Cyber Patrol). Such filtering software can be used to limit a computer’s access to only an approved list of sources that have been identified as containing no adult material or may be configured to block designated inappropriate sites. It may also be set up to block messages containing identifiable objectionable features. However, the Court recognized that such software cannot currently screen for sexually explicit images.

The prohibitions in the CDA are qualified by affirmative defences which could be utilized by someone who takes good faith, reasonable, effective, and appropriate actions to restrict access by minors to prohibited communications. Therefore, the CDA would have permitted sexually oriented material to be placed online if access was limited to users with credit cards, adult access codes or other mechanisms used to validate that such material would only be accessed by adults.

The Court considered the various alternatives that were available to deal with the problem of age verification but appeared to adopt the District Court’s finding that there "is no effective way to determine the identity or age of a user" and that the Government had offered no evidence that there was a reliable way to screen recipients and participants on the Internet for age.

The Supreme Court held that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In denying 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.

The Court also held that the breadth of the CDA’s restriction of speech is wholly unprecedented and a violation of the First Amendment. The CDA’s burden on adult speech was held to be unacceptable if less restrictive alternatives would be at least as effective in achieving the Act’s legitimate purposes. The Government was unable to persuade the Court that such less restrictive alternatives are not available.

The ruling in this case only affects the provisions relating to indecent or "patently offensive" content on the Internet. Banning of obscene material, including child pornography, is not affected by the decision.

The Clinton Administration, strong supporters of the CDA, appears to be dropping its hard-line position in favour of an approach based on the use of filtering software and industry self-regulation. It will now seek to promote self-regulation rather than a broad legislative solution to the problem of pornography and other content deemed unsuitable for children browsing on the Internet.

The regulation of content on the Internet is also made difficult by the fact that an Internet server can be located in a foreign jurisdiction where its operator is not subject to domestic laws. Barring a coordinated multilateral or international approach, prohibitions imposed in one country can be easily circumvented by relocating the content to a server located elsewhere. This approach has already been adopted by online gambling facilities that have simply set up shop in jurisdictions that do not prohibit such activities.

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