The First Amendment balance of a child's morality and an adult's naughty net play.

• Author: Johnson, Lori
• Position: Case Note

1. INTRODUCTION

   In Reno v. American Civil Liberties Union,(1) the United States Supreme Court addressed the constitutionality of the "indecent transmission"(2) and "patently offensive"(3) provisions of the Communications Decency Act of 1996(4) ("CDA").(5) The challenged provisions attempted to regulate Internet content with the goal of protecting children from harmful material.(6) The Court found, however, that the ambiguity of the CDA "undermine[d] the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials."(7) Writing for the majority, Justice Stevens declared the "indecent transmission" and "patently offensive" provisions of the CDA facially overbroad and in violation of the First Amendment right to free speech.(8) First, this Comment identifies the Court's technique of balancing the interest of free speech against the interests of the federal government in laws allegedly restricting free speech. Second, this Comment analyzes the Reno decision emphasizing the Court's declaration that certain provisions of the CDA are unconstitutional. Third, this Comment asserts that to promote sound public policy and protect the interests of children, certain provisions of the CDA should be sustained. Finally, this Comment examines the implications of the Reno decision and explores the monumental need to protect children from sexual exploitation facilitated through the Internet.

2. BACKGROUND

   1. Procedural History

      On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996.(9) On that same day, the American Civil Liberties Union ("A.C.L.U.") filed suit in Philadelphia against the United States Department of Justice and Attorney General Janet Reno, challenging the constitutionality of the CDA provisions that sought to protect minors from harmful materials.(10) The District Court granted a limited temporary restraining order against enforcement of section 223(a)(1)(B), the CDA's indecency provision.(11) Soon thereafter, the American Library Association, Inc. initiated a second legal challenge to the CDA, which was formally consolidated with ACLU v. Reno.(12)

      Subsequently, a three-judge panel of the United States District Court for the Eastern District of Pennsylvania convened pursuant to the CDA's expedited review provisions,(13) and entered a preliminary injunction against enforcement of the challenged provisions.(14) Judge Buckwalter held that the CDA could not withstand the "strict scrutiny" analysis that is applied to content-based restrictions on expression.(15) Chief Judge Sloviter concluded that the CDA was not "narrowly tailored" to the government's interest in protecting children from sexually explicit speech.(16) Judge Dalzell reasoned that the CDA would largely abridge protected speech on noncommercial speakers, while failing to have a significant effect on commercial pornographers.(17)

   2. Freedom of Speech Background

      The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech."(18) Although the First Amendment protects freedom of speech as a fundamental right, this right is not absolute.(19) Certain speech is deemed outside the scope of the First Amendment.(20) When analyzing whether speech is protected, the Court attempts to balance individual rights against the speech's overall effect on society.(21) If the Court classifies a restrictive regulation as content-based, the regulation is presumptively deemed unconstitutional.(22) First, however, the Court will apply a strict scrutiny test.(23) Under this analysis, the government bears the burden of showing "that its regulation is necessary to serve a compelling state interest and that it is narrowly tailored to achieve that end."(24)

      Two closely related and vital doctrines in the jurisprudence of free speech are the prohibitions against the overbreadth and vagueness of a statute.(25) Since the free speech guarantee is pivotal to American democracy, even when the state does have the power to regulate expression, it "must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."(26) "An overbroad statute ... is one that is designed to burden or punish activities" that are not protected by the Constitution, but at the same time, inadvertently, limits activities that are protected by the First Amendment.(27) When a statute is overbroad on its face, the speaker's actions or speech may not be protected by the First Amendment, and thus, the act could have been regulated under a more narrowly drawn statute.(28) The Court, however, will strike down an overbroad statute if it applies to third parties, not presently before the Court, who engage in protected activity that the statute appears to outlaw.(29) Nevertheless, in a First Amendment context, a statute should fall for overbreadth only if it is "substantially overbroad" and not easily reconstructed to avoid restricting privileged activity.(30)

      In addition to the overbreadth doctrine, the void for vagueness doctrine protects the right of free speech. In assessing the problem of vagueness in statutes regulating speech activities, the Supreme Court applies the same rationale it uses in the overbreadth doctrine, and often classifies the two doctrines together.(31)

      Even if the legislative purpose is a legitimate one of substantial governmental interest, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.(32) Thus, the Court requires the least restrictive alternative in the legislation.(33)

   3. Supreme Court Precedent

      "The First Amendment applies fully to all media ... electronic as well as print because the Constitution protects the function of communication not just the means used to transmit it."(34) Courts have, however, historically allowed a greater degree of governmental intervention with respect to broadcast content than with traditional print media on the theory that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them."(35) Further, government control over the media in the interest of protecting children has become the paramount motherhood issue. The government seeks to protect the innocence of children, instead of allowing them to be exposed to indecent or obscene materials.(36) For instance, in FCC v. Pacifica Foundation, the Supreme Court sustained an FCC order which held that the broadcast of a recorded monologue could be subject to administrative sanctions.(37) The FCC found that the use of words referring to sexual and excretory activities broadcast in the afternoon while children may be listening, was "patently offensive" and that the monologue was indecent.(38) Similarly, in Ginsberg v. New York,(39) the Supreme Court upheld a statute that prohibited the sale of material to minors that the minors considered obscene,(40) even if the material was not considered obscene to adults."(41) Thus, the Supreme Court has a history of upholding statutes and sanctions in order to protect children from exposure to indecent or obscene materials. Similarly, numerous states have created adult zones, thereby restricting minors' access to certain establishments frequented by adults.(42)

   4. The Communications Decency Act

      Congress passed the CDA to promote the well-being of minors and in response to the increasing number of Internet users with unmonitored access to obscene material on the Net.(43) The Internet has over 100,000 web sites that feature pornography and obscenity, with categories ranging from child nudity to graphic sex simulations.(44) The CDA included a prohibition against the use of a telecommunications device to knowingly send obscene or indecent(45) materials, comments or images to any recipient under eighteen years of age.(46) The CDA also made it a crime to utilize an "interactive computer service" to send or display a "patently offensive" message in a manner that is available to minors.(47)

      The CDA, however, included several affirmative defenses.(48) For example, there was a defense available for a person who:

      has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections which may involve any appropriate measures to restrict minors from such communications, including any methods which are feasible under available technology; or has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.(49) III. ANALYSIS

   1. Majority Opinion

      The Supreme Court noted probable jurisdiction as a result of the government's appeal under the CDA's special review provision section 561, 110 Stat. 142-143.(50) The question presented to the Supreme Court was whether the provisions of the Communications Decency Act of 1996,(51) which regulate "indecent transmissions" and "patently offensive displays," were unconstitutionally vague and overbroad, and thus in violation of the First Amendment.(52) The majority answered this question in the affirmative.(53) In reaching its decision, the majority afforded the highest level of First Amendment protection to Internet speech.

      Before analyzing whether the CDA terms were ambiguous, the Court discussed the undisputed facts established by the District Court.(54) Specifically, the Court stated that "sexually explicit material on the Internet includes text, pictures, and chat ... from the `modestly titillating to the hardest-core.'"(55) Although the District Court determined that no effective methods existed to verify the age of an on-line user, the majority recognized credit card verification as a method to facilitate...