Reno v. American Civil Liberties Union

Reno v. The ACLU is perhaps the first, and certainly one of the most important cases recognizing the vital role that the internet plays in free speech and public debate. This case was decided by the Supreme Court in 1997. They noted that “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”

This case arose out of the passage of the Communications Decency Act of 1996. That act had two key provisions. First, it prohibited the use of a telecommunications device to knowingly transmit any message that is obscene or indecent, knowing that the recipient of the message is under 18. Second, it prohibited the use of a computer to send messages to a person under 18 that “in context, depicts or describes in terms patently offensive, as measured by community standards, sexual or excretory activities or organs.

Anyone who violated either of these provisions could be fined and imprisoned for up to two years. The law sounds great at first, but there was a real problem with it. It prevents the transmission of obscene or “indecent” messages to people under 18. There is no problem with the prohibition of obscene messages, because a ban on obscene messages would be allowed under the First Amendment. But what exactly is an “indecent” message?. What is indecent to you is not necessarily indecent to me. And what do the terms “patently offensive by community standards” mean in the second provision? Which community?

The Court was particularly troubled by the vagueness of the CDA for two reasons.

“Given the vague conotours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided my a more carefully drafted stature.

We are persuaded that the CDA lacks the precision that the First Amendment requires when a stature regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively surpresses a large amount of speech that adults have a constitutuional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

In evaluating the free speech rights of adults, we had made it perfectly clear that sexual expression which is indecent but not obscene is protected by the First Amendment. Where obscenity is involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.

“The breadth of the CDA’s coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms “indecent” and “patently offensive” cover large amounts of nonpornographic material with serious educational or other value. Moreover, the “community standards” criterion as applied to the internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message. The regulated subject matter includes any of the seven “dirty words” used in the Pacifica monologue, the use of which the Government’s expert acknowledged could constitute a felony. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.”

So to sum up, the Court ruled the 1996 version of the CDA was unconstitutional because it was overly broad. It threatened constitutionally protected speech by its vagueness. And this is important—the Court was especially troubled that this was a content-based regulation of speech that was backed up by criminal penalties. This makes the CDA just like the DMCA. The DMCA is content-based in that it makes it impossible to post otherwise perfectly legal snippets of other people's videos--and keep them posted--while remaining anonymous. Anyone who wants to keep their video on the internet by challenging a DMCA takedown notice is forced by the DMCA to either give up their anonymity or perjure themselves by signing a false name to a DMCA counternotice. The DMCA makes criminals out of those who use a false name to anonymously defend their right to make fair use of other people's videos.

Reno v. American Civil Liberties Union,

117 S.Ct. 2329, 138 L.ED.2d 874 (1997)