Fergie's Tech Blog

26 June 1997: U.S. Supreme Court Rules that the Communications Decency Act Volates the First Amendment

The Communications Decency Act (CDA) was Title V of the United States' Telecommunications Act of 1996. It was introduced to the Senate Committee on Commerce, Science, and Transportation by senators James Exon (D-NE) and Slade Gorton (R-WA) in 1995. It was approved by an 84-16 vote on June 14, 1995.

As passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both indecency (when available to children) and obscenity in cyberspace. Second, Section 230 of the Act declared that operators of Internet services were not to be construed as publishers (and thus legally liable for the words of third parties who use their services).

n Philadelphia on June 12, 1996 a panel of federal judges blocked part of the CDA, saying it would infringe upon the free speech rights of adults. The next month, another US federal court in New York struck down the portion of the CDA intended to protect children from indecent speech as too broad. On June 26, 1997, the Supreme Court upheld the Philadelphia court's decision in Reno v. American Civil Liberties Union, stating that the indecency provisions were an unconstitutional abridgement of the First Amendment right to free speech because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not define "patently offensive," a term with no prior legal meaning. (The New York case, Reno v. Shea, was affirmed by the Supreme Court the next day, without a published opinion.)

In 2003, Congress amended the CDA to remove the indecency provisions struck down in Reno v. ACLU. A separate challenge to the provisions governing obscenity, known as Nitke v. Gonzales, was rejected by a federal court in New York in 2005. The Supreme Court summarily affirmed that decision in 2006.

Congress has made two narrower attempts to regulate children's exposure to Internet indecency since the Supreme Court overturned the CDA. Court injunction blocked enforcement of the first, the Child Online Protection Act (COPA), almost immediately after its passage in 1998; the law was later overturned. While legal challenges also dogged COPA's successor, the Children's Internet Protection Act (CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.

posted by Fergie @ 6/25/2006 10:01:00 PM