11 Unprotected Categories: Obscenity

Obscenity Doctrine and the Internet

The landscape of obscenity has changed dramatically with the development and spread of the internet. Material that had once only been available by entering an adult theater or bookstore could now be accessed by almost anyone, anywhere, at any time. Indeed, for the first several years of the internet’s existence, pornography was among the few profitable online industries.

Unsurprisingly, Congress reacted to these changes with legislation, focusing in particular on societal fears that children and adolescents could now much more easily view sexual material. The 1996 Communications Decency Act, written in large part to deal with these concerns, prohibited the “knowing transmission of obscene or indecent messages” when minors were present while providing an affirmative defense for websites that employed some sort of age verification measure (like requiring a credit card). Civil liberties and media groups immediately sued the federal government after the law’s passage and won before a special three-judge District Court the law had designated to hear legal challenges. The government appealed to the Supreme Court, which unanimously agreed the relevant portions of the law should be struck down.

While this decision is important within the obscenity context, it is perhaps more important for creating precedent on how the Court treats the Internet as a medium of speech. The protection particular speech deserves sometimes varies according to the media type in question. For example, because radio listeners have a greater potential to be unexpectedly exposed to what comes over the radio than someone who checks out a book from the library, the Court had approved greater government restrictions on radio broadcasts as compared to books (e.g. Federal Communications Commission v. Pacifica Foundation (1978)). In this case, the Court treats the Internet as a “giant library,” indicating that going forward, it would receive protection similar to that given to books and newspapers, rather than the lesser degree afforded to radio broadcasts.

Reno v. American Civil Liberties Union

521 US 844 (1997)

Facts: In 1996, Congress passed the Communications Decency Act, which was intended in part to protect minors from viewing “indecent” and “patently offensive” material on the Internet. In particular, the law prohibited the “knowing transmission of obscene or indecent messages,” with safe harbors for websites that employed age verification measures.

Following its passage, the law was immediately challenged by civil liberties and media groups. A special three-judge District Court found the statute was overbroad, potentially and unconstitutionally chilling the speech of adults. The government appealed.

Question: Did the Communications Decency Act violate the First Amendment?

Vote: Yes, 9-0

For the Court: Justice Stevens

Concurring in the judgment and dissenting in part: Justice O’Connor

JUSTICE STEVENS delivered the opinion of the Court.

At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment.

I

… Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial “search engine” in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the “surfer,” or, through its links, it may be an avenue to other documents located anywhere on the Internet…

The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.

From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers…

Though [sexual] material is widely available, users seldom encounter such content accidentally… For that reason, the “odds are slim” that a user would enter a sexually explicit site by accident. Unlike communications received by radio or television, “the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.”

… The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there “is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms.” The Government offered no evidence that there was a reliable way to screen recipients and participants in such forums for age. Moreover, even if it were technologically feasible to block minors’ access to newsgroups and chat rooms containing discussions of art, politics, or other subjects that potentially elicit “indecent” or “patently offensive” contributions, it would not be possible to block their access to that material and “still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent.”

Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. Using credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that would require many of them to shut down… Moreover, the imposition of such a requirement “would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material.”

Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and maintaining such screening systems would be “beyond their reach.” …

II

…

III

… a three-judge District Court was convened pursuant to § 561 of the CDA. After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was unanimous…

Chief Judge Sloviter … concluded, nonetheless, that the statute “sweeps more broadly than necessary and thereby chills the expression of adults” and that the terms “patently offensive” and “indecent” were “inherently vague.” She also determined that the affirmative defenses were not “technologically or economically feasible for most providers,” specifically considering and rejecting an argument that providers could avoid liability by “tagging” their material in a manner that would allow potential readers to screen out unwanted transmissions…

Judge Buckwalter concluded that the word “indecent” in § 223(a)(1)(B) and the terms “patently offensive” and “in context” in § 223(d)(1) were so vague that criminal enforcement of either section would violate the “fundamental constitutional principle” of “simple fairness,” and the specific protections of the First and Fifth Amendments. He found no statutory basis for the Government’s argument that the challenged provisions would be applied only to “pornographic” materials, noting that, unlike obscenity, “indecency has not been defined to exclude works of serious literary, artistic, political or scientific value.” …

Judge Dalzell’s review of “the special attributes of Internet communication” disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet. His opinion explained at length why he believed the CDA would abridge significant protected speech, particularly by noncommercial speakers, while “[p]erversely, commercial pornographers would remain relatively unaffected.” He construed our cases as requiring a “medium-specific” approach to the analysis of the regulation of mass communication, and concluded that the Internet-as “the most participatory form of mass speech yet developed,” is entitled to “the highest protection from governmental intrusion” …

The Government appealed under the CDA’s special review provisions, and we noted probable jurisdiction. In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue…

IV

In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York (1968); (2) FCC v. Pacifica Foundation (1978); and (3) Renton v. Playtime Theatres, Inc. (1986). A close look at these cases, however, raises, rather than relieves doubts concerning the constitutionality of the CDA.

In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults… we relied not only on the State’s independent interest in the well-being of its youth, but also on our consistent recognition of the principle that “the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”

In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.” Under the CDA, by contrast, neither the parents’ consent–nor even their participation in the communication would avoid–the application of the statute. Second, the New York statute applied only to commercial transactions, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be “utterly without redeeming social importance for minors.” The CDA fails to provide us with any definition of the term “indecent” … and, importantly, omits any requirement that the “patently offensive” material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority.

In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled “Filthy Words” that had previously been delivered to a live audience “could have been the subject of administrative sanctions.” The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs “in an afternoon broadcast when children are in the audience was patently offensive” and concluded that the monologue was indecent “as broadcast.” The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended that it was not “indecent” within the meaning of the relevant statutes because it contained no prurient appeal…

… Relying on the premise that “of all forms of communication” broadcasting had received the most limited First Amendment protection, the Court concluded that the ease with which children may obtain access to broadcasts, “coupled with the concerns recognized in Ginsberg,” justified special treatment of indecent broadcasting.

As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content … The CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission’s declaratory order was not punitive… Finally, the Commission’s order applied to a medium which as a matter of history had “received the most limited First Amendment protection,” in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.

In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the “secondary effects” –such as crime and deteriorating property values–that these theaters fostered…

According to the Government, the CDA is constitutional because it constitutes a sort of “cyberzoning” on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of “indecent” and “patently offensive” speech, rather than any “secondary” effect of such speech. Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be “properly analyzed as a form of time, place, and manner regulation.” …

These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions.

V

…. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television… Users seldom encounter content “by accident.” …

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds… Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer… We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

VI

Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts of the CDA uses a different linguistic form. The first uses the word “indecent,” while the second speaks of material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Given the absence of a definition of either term, this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images…

The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, (1973). But that is not so…

Because the CDA’s “patently offensive” standard (and, we assume, arguendo, its synonymous “indecent” standard) is one part of the three-prong Miller test, the Government reasons, it cannot be unconstitutionally vague.

The Government’s assertion is incorrect as a matter of fact. The second prong of the Miller test-the purportedly analogous standard-contains a critical requirement that is omitted from the CDA: that the proscribed material be “specifically defined by the applicable state law.” This requirement reduces the vagueness inherent in the open-ended term “patently offensive” as used in the CDA…

The Government’s reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague… Each of Miller’s additional two prongs-(1) that, taken as a whole, the material appeal to the “prurient” interest, and (2) that it “lac[k] serious literary, artistic, political, or scientific value”-critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the “patently offensive” and “prurient interest” criteria, it is not judged by contemporary community standards…

In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute’s scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.

VII

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny 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. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve…

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not “reduc[e] the adult population … to … only what is fit for children.” …

In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be a minor-and therefore that it would be a crime to send the group an indecent message-would surely burden communication among adults…

The breadth of the CDA’s coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms “indecent” and “patently offensive” cover large amounts of nonpornographic material with serious educational or other value. Moreover, the “community standards” criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message… It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library.

… It is at least clear that the strength of the Government’s interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material “indecent” or “patently offensive,” if the college town’s community thought otherwise…

VIII

In an attempt to curtail the CDA’s facial overbreadth, the Government advances three additional arguments for sustaining the Act’s affirmative prohibitions: (1) that the CDA is constitutional because it leaves open ample “alternative channels” of communication; (2) that the plain meaning of the CDA’s “knowledge” and “specific person” requirement significantly restricts its permissible applications; and (3) that the CDA’s prohibitions are “almost always” limited to material lacking redeeming social value.

This [first] argument is unpersuasive because the CDA regulates speech on the basis of its content. A “time, place, and manner” analysis is therefore inapplicable… The Government’s position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books…

The Government’s assertion that the knowledge requirement somehow protects the communications of adults is [also] untenable. Even the strongest reading of the “specific person” requirement of § 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a “heckler’s veto,” upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child-a “specific person … under 18 years of age,” would be present.

Finally, we find no textual support for the Government’s submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA’s “patently offensive” and “indecent” prohibitions.

IX

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X

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XI

In this Court, though not in the District Court, the Government asserts that-in addition to its interest in protecting children-its “[e]qually significant” interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. The Government apparently assumes that the unregulated availability of “indecent” and “patently offensive” material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.

We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship…

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part.

I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster…

The creation of “adult zones” is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults. States have also denied minors access to speech deemed to be “harmful to minors.”

The Court has previously sustained such zoning laws, but only if they respect the First Amendment rights of adults and minors. That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material. As applied to the Internet as it exists in 1997, the “display” provision and some applications of the “indecency transmission” and “specific person” provisions fail to adhere to the first of these limiting principles by restricting adults’ access to protected materials in certain circumstances. Unlike the Court, however, I would invalidate the provisions only in those circumstances…

… Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed “locations” on the Internet. Since users can transmit and receive messages on the Internet without revealing anything about their identities or ages, however, it is not currently possible to exclude persons from accessing certain messages on the basis of their identity.

… Although gateway technology has been available on the World Wide Web for some time now, it is not available to all Web speakers, and is just now becoming technologically feasible for chat rooms and USE NET newsgroups. Gateway technology is not ubiquitous in cyberspace, and because without it “there is no means of age verification,” cyberspace still remains largely unzoned-and unzoneable.

Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Given the present state of cyberspace, I agree with the Court that the “display” provision cannot pass muster… the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, “reduce[s] the adult population [on the Internet] to reading only what is fit for children.” …

Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights 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 I respectfully dissent.