Supreme Court, two federal courts reject Internet regulations

ROUNDUP–On June 26, the U.S. Supreme Court held that two provisions of the Communications Decency Act, criminalizing the conveyance of “indecent” and “patently offensive” material to minors or the display of such material in a manner available to minors, impermissibly abridged the free speech provision of the First Amendment.

Days before, federal courts in New York and Georgia enjoined those states from enforcing similar state laws that would regulate the Internet.

In a decision written by Justice Stevens and joined by Justices Scalia, Kennedy, Souter, Thomas, Ginsburg and Breyer, the Court said that the CDA is a content-based blanket speech restriction that is not narrowly tailored to accomplish a compelling governmental interest. The Court held that although the government has a legitimate interest in protecting children from potentially harmful materials, the CDA impermissibly suppressed a large amount of speech that adults have a constitutional right to send and receive.

The Court rejected the Government’s argument that the CDA is similar to regulations applicable to broadcast media, noting that unlike those statutory schemes, the CDA does not allow parents to consent to their children’s use of the restricted material, fails to provide any definition of “indecent” and omits any requirement that “patently offensive” material lack socially redeeming value.

The Court further observed that the unique qualities of broadcast media justifying extensive regulation, including its “invasive” nature, the history of government regulation of broadcast media, and the spectrum scarcity at its inception, did not apply to the Internet.

The Court noted that vague content-based regulations like the CDA raise special First Amendment concerns “because of its obvious chilling effect on free speech.” In addition, the Court noted that user-based software is available to assist parents in protecting their children from gaining access to potentially offensive material on the Internet.

Justice O’Connor and Chief Justice Rehnquist concurred in the Court’s decision but dissented from its reasoning. Specifically, Justice O’Connor wrote that the government could lawfully create an “adult zone” for “indecent” or “patently offensive” material on the Internet, if the law did not unduly restrict adult access and minors had no First Amendment right to review the banned material.

The Reporters Committee for Freedom of the Press and the Student Press Law Center filed an amici curiae brief alerting the Supreme Court to the CDA’s potential to limit journalists’ ability to gather and disseminate the news. (Reno v. ACLU)

Several days before the Supreme Court pronouncement, federal district courts in Manhattan and Atlanta enjoined New York and Georgia from enforcing state laws that sought to regulate content on the Internet.

The New York law, purportedly enacted to protect children from pedophiles, violates the Commerce Clause of the U.S. Constitution; the Georgia statute, which would have barred anonymous communications in cyberspace, violates the First Amendment’s free speech protection, the judges ruled respectively.

The New York law would have made it a crime to intentionally use a computer communication system to transmit material containing nudity, sexual conduct or sado-masochistic abuse if the message would be harmful to minors and if the communication could reach a minor.

Judge Loretta Preska ruled that the Internet is an area that must be “marked off as a national preserve” to protect users from inconsistent legislation from the states that could paralyze its development. The act would unconstitutionally regulate actions that took place outside the state, she said. She also noted that it would have only minimal local benefit, giving minors no greater protection beyond what vigorous enforcement of existing obscenity and child pornography laws could accomplish.

Although the numerous parties who brought the lawsuit argued that the act violated the First Amendment, Preska did not rule on that issue, noting that the U.S. Supreme Court was already considering identical issues in deciding whether the federal Communications Decency Act violates the First Amendment.

The Georgia law would have criminalized Internet messages sent by anyone who “falsely identifies” himself. Although the state claimed that the act barred only fraudulent transmissions or the appropriation of someone else’s identity, the groups who sued said that the statute would discourage anonymous speech on sensitive or controversial topics.

Judge Marvin Shoob said the statute was too vague. It criminalized computer transmissions which “falsely identify” the sender without requiring any proof of an intent to deceive. A section prohibiting use of trade names and logos was confusing because it did not specify what kinds of “uses” would be illegal. The statute would lead to overly broad self-censorship by people who were not certain what kind of Internet speech would be illegal, Shoob wrote. (ALA v. Pataki; ACLU of Georgia v. Miller; Counsel, both cases: Ann Beeson, New York City)