Jennifer teaches critical thinking, legal writing and research, business law and justice studies courses. She has a law degree.
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People of all ages use the Internet to post pictures, communicate (often with strangers), and research topics of interest. The rise and tremendous growth of the Internet has presented challenges in terms of the regulation of shared content. Are individuals limited in what materials may be posted and shared online? Should they be?
What if, in trying to protect our children from harmful content online, we end up preventing adults from expressing themselves? In the 1997 case of Reno v. ACLU (521 U.S. 844) the Supreme Court addressed this important issue.
Restrictions on Speech
Freedom of speech and freedom of expression are protected by the First Amendment to the U.S. Constitution. Our rights to freedom of speech are broad, but not absolute. The Supreme Court subjects laws that place restrictions on speech to varying levels of review and scrutiny.
Content-based restrictions on speech are restrictions that treat speech differently based on its message or content. These types of restrictions must pass a strict scrutiny level of judicial review. In order to pass this heightened level of review, the law must
- further a 'compelling government interest' (for example, protecting children from indecent material), and
- be 'narrowly tailored' (specific to its goals) in order to achieve that compelling interest.
Basically, in order for a content-based restriction to stand there must be no less speech-restrictive way to achieve the compelling state interest.
Content-neutral restrictions on speech (often referred to as time, place, and manner restrictions) are subject to an intermediate scrutiny level of judicial review. They must be
- content neutral (they cannot treat speech differently based on its substance or message),
- narrowly tailored,
- serve a significant government interest and
- leave open sufficient alternative channels for communication.
This four-part test was described in the 1989 case of Ward v. Rock Against Racism (491 U.S. 781).
Additionally, laws restricting speech must not be
- overly broad, or
- unconstitutionally vague
In the case of Reno v. ACLU (1997) the Supreme Court addressed the constitutionality of content-based restrictions on materials distributed online.
The 1996 Communications Decency Act (the 'CDA') is a controversial act that includes two provisions aimed to protect minors from harmful material on the Internet. The provisions prohibit:
- the 'knowing' transmission of 'obscene or indecent' messages to a recipient who is less than 18 years old.
- knowingly sending or displaying to a minor any patently offensive message as measured by current standards.
The legislation imposed fines of up to $250,000 for posting certain undesirable language.
Fearing a loss of their freedoms in the online environment, concerned plaintiffs (including a publisher of an online newsletter as well as The National Writers Union, a representative for thousands of freelance journalists, authors, and writers) filed a lawsuit challenging the constitutionality of the two described provisions. A Philadelphia District Court entered a preliminary injunction against the enforcement of both provisions.
Attorney General Janet Reno, on behalf of the Government, appealed directly to the United States Supreme Court.
In Reno v. ACLU the Supreme Court considered the following question:
Were certain provisions of the 1996 Communications Decency Act overly broad and vague in their description of the specific types of Internet communications they addressed and, as a result, in violation of the First and Fifth Amendments of the U.S. Constitution?
Supreme Court Holding and Analysis
In an opinion delivered by Justice Stevens, the Supreme Court held that the two provisions infringed upon the freedom of speech protected by the First Amendment. The Supreme Court affirmed the District Court's judgement.
The Court noted that the CDA (which applies to the Internet in its entirety) violated First Amendment rights by essentially imposing a content-based blanket restriction on free speech. The Court distinguished cyberspace from prior case laws regulating the broadcasting industry and wrote that broadcasting 'cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet'. (521 U.S. 844).
The Court reasoned that the CDA, which (as a criminal statute) is punitive in nature, did not clearly define 'indecent' and 'patently offensive' communications and did not limit its extremely broad restrictions to particular times or individuals (for example, minors, as opposed to all users). Rather, in order to protect children from potentially harmful material, the CDA limited the speech that adults had a Constitutional right to express, access, and receive.
Justice Stevens reasoned that 'the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes'. (521 U.S. 844).
As a result of finding of a First Amendment infringement, the Court did not address Fifth Amendment issues.
Content-based restrictions on free speech are subject to strict scrutiny by the courts. The 1996 Communications Decency Act (the 'CDA') prohibited indecent and patently offensive content from being distributed on the Internet. In the case of Reno v. ACLU (1997) the Supreme Court ruled that when a content-based blanket speech restriction prohibits both protected and unprotected speech, such restriction is overly-broad and goes against the First Amendment. The Court's holding effectively clarifies that overly-broad regulations of speech in the online environment are prohibited, no matter the intent of the regulations.
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