Academic journal article Rutgers Computer & Technology Law Journal

The First Amendment Balance of a Child's Morality and an Adult's Naughty Net Play

Academic journal article Rutgers Computer & Technology Law Journal

The First Amendment Balance of a Child's Morality and an Adult's Naughty Net Play

Article excerpt


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.


A. 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)

B. 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. …

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