Reno V. ACLU: The First Amendment, Electronic Media, and the Internet Indecency Issue

Article excerpt

When Congress passed the Telecommunications Act of 1996, it chose to include (under title V of the act) the so-called Communications Decency Act of 1996.(1) This legislation, initiated by Nebraska Senator James J. Exon, prohibits online display and transmission of indecent material to minors of less than eighteen years of age. The American Civil Liberties Union and nineteen other groups were so concerned about the First Amendment implications the act presents that they filed a challenge to it on February 8, 1996, the same day that President Clinton signed the legislation into law. This swift filing set the judicial stage for court determination of the questions Fred W. Weingarten listed in "Uncle Sam as Internet Nanny" as the major arguments debated since the earliest days of computer communication: Should electronic speech on the Internet be regulated? Is the Internet analogous to print, which enjoys strong First Amendment protections? Or is it more akin to the broadcast media, which courts have been more willing to subject to government regulation? Or, since the Internet is neither a print nor a broadcast medium, should it be governed by a different, more permissive model?(2)

The case originally was heard by a specially convened three-judge panel sitting at the U.S. District Court for the Eastern District of Pennsylvania.(3) In that case, Judge Dalzell summarized the court's opinion, noting that

the Internet may fairly be regarded as a never ending worldwide

conversation. The government may not, through the Communications

Decency Act, interrupt that conversation. As the most participatory

form of mass speech yet developed, the Internet deserves the highest

protection from governmental intrusion.(4)

The court issued a preliminary injunction against the government's enforcement of the act, excepting enforcement relative to material that was found statutorily obscene.


In Reno v. ACLU,(5) the U.S. Supreme Court, in a 7-to-2 decision, upheld the unconstitutionality of provisions 47 U.S.C. [sections] 223(a)(1) and (d) of the act, agreeing "with the three-judge District Court that the statute abridges `the freedom of speech' protected by the First Amendment."(6) The Court's opinion, authored by Justice John Paul Stevens, is organized emphasizing the First Amendment considerations the majority saw as important in this case of first impression at the Court. (Assertions that the statute also violated the Fifth Amendment due to alleged vagueness were not addressed by the Court. The opinion states simply "that the judgment should be affirmed without reaching the Fifth Amendment issue."(7)) In this article, the Supreme Court's opinion is summarized, followed by an analysis and reaction to various First Amendment and electronic media issues that the opinion suggests.

That the justices did their homework about the topic is evident from the beginning. Both the Internet's historical development and a variety of computer-based communication technologies (such as e-mail and the World Wide Web) are examined as preamble to recognition that the case requests the Court to rule regarding a unique medium, "known to its users as `cyberspace'--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet."(8)

The Court then proceeds to identify key issues the case presents. Noting that the Web provides readers with "a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services,"(9) the Court goes on to state that from a publisher's perception, the Web constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. No single organization controls any membership in the Web, nor is there any centralized point from which individual web sites or services can be blocked from the Web. …