COMMUNICATIONS DECENCY ACT OF 1996

The rise of new communications technologies, such as the Internet, poses a number of problems for policymakers. Perhaps the most vexing of these problems involves trying to balance (1) the First Amendment rights of those people who wish to communicate using the Internet with (2) ensuring that children who use the Internet are protected from adult-oriented material such as pornography. According to Timothy Zick (1999), millions of children access the Internet everyday despite the fact that approximately 70 percent of Internet traffic is sexually oriented in nature. Clearly, the World Wide Web differs from other media in that the availability of adult-oriented content is greater and restricting the distribution of that type of content is difficult at best.

Faced with the reality of children being able to view material that is intended for adults, the U.S. Congress passed the Communications Decency Act of 1996 as part of the Telecommunications Act of 1996. The Communications Decency Act was signed into law by President Bill Clinton on February 8, 1996. By the time the Communications Decency Act became law, however, it was already a highly controversial piece of legislation. For the first time, Congress had attempted to restrict what types of information could be put on the Internet.

Legislative Development

Faced with an explosion in the pervasiveness of digital communication by the early 1990s, Congress moved to update the various telecommunications laws that were in existence. This effort ultimately culminated in the passage of the Telecommunications Act of 1996. Essentially, the Telecommunications Act of 1996 updated the Communications Act of 1934 to include digital communication and to encourage market competition. This major reform effort was the subject of a great deal of congressional and public debate.

During the winter of 1995, as the Telecommunications Act of 1996 was taking shape, Senator Jim Exon of Nebraska introduced the Communications Decency Act as an amendment. A number of sources characterize this amendment as a last-minute addition to the Telecommunications Act of 1996. Exon built support for the Communications Decency Act by passing around a book that contained a variety of pornographic photographs that had been downloaded from websites. Certainly, the two acts essentially deal with different issues facing the same technological innovations. Because the nature of the Telecommunications Act of 1996 dealt with market conditions, new technology, and telecommunications policy, the Communications Decency Act broke new ground by attempting to regulate the content of digital communication. This fact led a significant number of senators to oppose the legislation initially. However, the Communications Decency Act encountered stronger opposition in the U.S. House of Representatives, which passed The Online Family Empowerment Amendment, a competing piece of legislation that had a similar purpose. In the end, a conference committee largely combined the two pieces of legislation into the version of the Communications Decency Act that ultimately became law.

In general, the Communications Decency Act sought to protect children from harmful material on the Internet. The act made it a crime to use any device to send "obscene, lewd, lascivious, filthy, or indecent communications with the intent to annoy, abuse, threaten, or harass another person." Specifically, the act made it illegal for one to "knowingly within the United States or in foreign communications with the United States by means of telecommunications device make… available any indecent communication in any form including any comment, request, suggestion, proposal, image, to any person under 18 years of age." The act stipulated that the penalty for indecent communication sent to minors would be a maximum fine of $100,000 and a maximum jail sentence of two years. The act further made it a crime for anyone to transmit patently offensive material to any specific minor, regardless of who initiated the communication. Perhaps most important, the act made it illegal to transmit such material in a way that could be accessed by a person under the age of eighteen.

This last portion of the Communications Decency Act became perhaps the most controversial aspect of the legislation because nearly any regular website can be accessed by anybody (whether child or adult) with an Internet connection.

Unconstitutionality of the Communications Decency Act

On the same day that President Clinton signed the Communications Decency Act into law, a number of groups sought and won—in ACLU v. Reno (i.e., Reno I)—a temporary restraining order in the U.S. District Court for the Eastern District of Pennsylvania to prevent enforcement of the act. Several other groups subsequently filed a similar lawsuit that was consolidated into one case at the U.S. Court of Appeals for the Third Circuit. The plaintiffs contended that the language contained in the act was overly vague, allowing regulators to restrict content that was ordinarily protected by the First Amendment. Moreover, enforcing the act might serve to restrict the First Amendment right of adults who choose to access adult-oriented material. The government argued that the Communications Decency Act was worded similarly to past U.S. Supreme Court decisions on indecency and obscenity. In addition, the government argued that there was a compelling interest in protecting children from dangerous material on the Internet.

The appellate court found in Reno v. ACLU (i.e., Reno II) that the Communications Decency Act was an unconstitutional violation of the First Amendment. The court relied on previous cases by noting that any law seeking to restrict content must pass "strict scrutiny." In other words, the law must serve a compelling governmental interest, and the law must be narrowly tailored to fix the problem at hand. Applying that standard, the court reasoned, the Communications Decency Act was unconstitutional because content that may have some literary or artistic merit but would be unsuitable for minors would be restricted. Hence, under the act, protected yet indecent speech may be restricted by the attempts of the law to curtail obscenity. The court further found that the Communications Decency Act was unconstitutional in that there were no technological means for ensuring that websites that featured adult-oriented content would be viewed only by adults. Finally, the court found that the interest of the government in protecting minors could be better served by enforcing already existing obscenity and pornography legislation than by risking the restriction of legitimate (protected) communication.

The U.S. Supreme Court agreed to hear Reno II with arguments presented during the spring of 1997. In a 7-2 decision, the Court ruled in June 1997 that the Communications Decency Act was unconstitutional. Justice Sandra Day O'Connor wrote a separate opinion in which she dissented in part and concurred in part. Chief Justice William H. Rehnquist joined O'Connor. Writing for the majority, Justice John Paul Stevens contended that the Communications Decency Act was too vague and overbroad in its scope and direction to be constitutional under the First Amendment. The first problem addressed by the Court was the notion of indecency versus obscenity. Sexual expression that is indecent but not obscene enjoys some First Amendment protection while obscene expression receives no such protection. The Communications Decency Act, however, at some points uses the terms interchangeably. According to the Court, this could result in confusion in interpreting the scope of the law. For example, a website developer who wishes to operate legally according to the framework of the Communications Decency Act would have extreme difficulty deciding exactly what kinds of depictions and descriptions to omit or include.

A second problem that the Court found with the Communications Decency Act is that because it is a criminal statute, the likelihood of chilling speech would be greater. A person who was afraid of large fines and a jail sentence might be less likely to communicate even though the expression might normally enjoy some constitutional protection. Perhaps most important was the employment of past precedent in the decision. In the case of Sable Communications of California v. FCC (1989), the Court held that a statute that prohibited the transmission of sexually oriented content via the telephone was unconstitutional in that it infringed upon the rights of adults in its attempt to protect children. In Reno II, the Court noted that the Communications Decency Act was similar to the statute tested by Sable. The telephone is similar to the Internet because it is less intrusive than other types of media. Unlike a television broadcast (where the viewer is the recipient of one-way communication), the telephone (and the Internet) gives the user more choice in terms of communicating. The caller chooses to dial a certain number with a particular result in mind, while a television viewer has less choice regarding specific programming offerings. The Court found that the mere fact that a statute is designed to protect children does not exempt that statute from judicial scrutiny. In fact, because the statute prohibited telephone communication in which it was normally legal for adults to participate, the statute was found to be an unconstitutional restriction of free speech.

Applying this logic to Reno II, the Court found that in attempting to protect children, the Communications Decency Act went too far by restricting the First Amendment rights of adults. Because there is no way to ensure absolutely that minors will not access adult-oriented websites, the effect of the Communications Decency Act might be to restrict all websites that contain material that is deemed inappropriate for children. The decision of the Court noted that the Communications Decency Act went too far to try to solve a problem that affected only one class of the population. The ruling of the Court in Reno II clearly indicates that if regulators at any level wish to restrict Internet content, they must design statutes that meet the highest level of scrutiny.

The Child Online Protection Act

The decision in Reno II did not end the controversy of governmental regulation of the Internet, however. Several main events occurred in the wake of that decision, and they affected how government attempts to regulate the Internet. First, existing obscenity laws have been employed to restrict the transmission of obscenity via computer. In the case of United States v. Thomas (1996), the first Internet obscenity case, obscenity laws that prohibit knowingly selling or transporting obscenity were successfully applied to computer-oriented communication. In Thomas, the U.S. Court of Appeals for the Sixth Circuit found that using a computer to transmit obscene material violated obscenity laws. In addition, the Child Pornography Act of 1996 has withstood judicial scrutiny (United States v. Carroll, 1997) of its provision outlawing Internet distribution of child pornography.

After the U.S. Supreme Court struck down the Communications Decency Act for being overly vague and too broad, Congress drafted and passed the Child Online Protection Act (COPA) in 1998. COPA was designed to survive judicial scrutiny by attempting to protect children from harmful material while protecting the First Amendment rights of adults. COPA differed from the Communications Decency Act in several key ways. First, COPA applied only to commercial websites, exempting private websites. COPA also did not use the word "obscenity" interchangeably with indecency. Instead, COPA sought to restrict websites that were deemed "harmful to minors." Specifically, COPA prohibited making "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors" measured by "contemporary community standards." In addition, Congress attempted to define the key terms that were used within the wording of COPA. Finally, Congress strengthened the penalty for violating the law. Website operators in violation of COPA could be fined $50,000 per day. In order to prevent minors from accessing material intended for adults, COPA encouraged website operators to use some method designed to verify that the individual website visitor is indeed an adult. The suggested methods included requiring credit card numbers, having specific passwords generated, personal using identification numbers, and having debit accounts.

President Clinton signed COPA into law on October 21, 1998. The same groups that opposed the Communications Decency Act immediately filed a lawsuit to challenge COPA. On November 20, 1998, the U.S. District Court for the Eastern District of Pennsylvania granted a temporary restraining order that prevented enforcement of the law. Hearings on COPA began in February 1999, resulting in a preliminary injunction that prevented enforcement. Subsequently, on June 22, 2000, the U.S. Court of Appeals for the Third Circuit found in ACLU v. Reno (i.e., Reno III) that the law was unconstitutional. The employment in COPA of "contemporary community standards" was problematic according to the appellate court because website owners would have to conform with the community standards of the most conservative state in order to avoid prosecution. Since the web transcends geographic boundaries, the requirements of COPA served to restrict the expression of adults in less conservative states.

Because the appellate court could not identify a technological means of accomplishing what COPA set out to do (i.e., prevent certain websites from reaching certain groups of people in certain areas, while allowing access to those websites for certain groups in certain other areas), the court held that the law was an unconstitutional violation of free speech. An additional geographic issue involves the fact that the law would apply only to commercial websites that originated in the United States; it would not apply to foreign websites. Children could access many sexually oriented websites that originated from foreign countries and noncommercial entities, thus circumventing the intent and scope of COPA.

The court also found that websites that featured text containing nonsexual information that may be harmful to minors would be subject to age verification under COPA. The example that appeared throughout news accounts of the passage of COPA was the high degree of Internet traffic surrounding the release of the Starr report regarding President Clinton's activities in the White House. Under COPA, the rather graphic details of the Starr report would in the least necessitate the use of some age verification mechanism for the individuals who wish to access it. At worst, under the community standards clause of COPA, the Starr report might not have been legally posted, as the website operator would have to obey the most restrictive standards of the most conservative locality. Moreover, the court found that the remedies that were prescribed by COPA to ensure that only adults could access certain websites were problematic. Credit card verification would restrict websites to only those individuals who possessed a credit card number. In addition, credit card verification may be harmful to expression because the technology that is necessary to carry out this function is expensive to acquire. Finally, the court found that there are other, less restrictive means that are available to protect children from potentially harmful content. For example, the popularity of parental blocking software indicates that children can be protected without legislative action that may infringe upon the rights of adults.

The ruling of the appeals court in Reno III is a major event that relates directly to the Communications Decency Act. COPA was drafted as a direct result of the U.S. Supreme Court's ruling in Reno II. Despite the attempt of Congress to repair the Communications Decency Act, the courts still found that attempts to regulate the Internet, absent some technological solution to ensure that minors will not see information that is intended for adults, are unconstitutional restrictions on the First Amendment.

Conclusion

Regulating the Internet has turned out to be a controversial and vexing problem for Congress, despite the important interest in protecting children from potentially dangerous Internet sites. The lack of a technology that will simultaneously protect the well-being of the children and the constitutional rights of the adults will likely characterize this problem for some time.

Bibliography

Doherty, Kelly M. (1999). "www.obscenity.com: AnAnalysis of Obscenity and Indecency Regulation on the Internet." Akron Law Review 32:259-300.

Hale, J. V. (1998). " Reno v. American Civil Liberties Union: Supreme Court Strikes Down Portions of the Communications Decency Act of 1996 as Facially Overbroad in Violation of the First Amendment." Journal of Contemporary Law 24:111-130.

Werst, Brian M. (1997). "Legal Doctrine and Its Inapplicability to Internet Regulation: A Guide for Protecting Children from Internet Indecency after Renov. ACLU." Gonzaga Law Review 33:207-240.

Zick, Timothy. (1999). Congress, the Internet, and the Intractable Pornography Problem: The Child Online Protection Act of 1998. Creighton Law Review 32:1147-1203.

Patrick M. Jablonski

Communications Decency Act of 1996

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