US Internet Law/Communications Decency Act

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Two provisions of the Communications Decency Act of 1996 (CDA or Act) sought to protect minors from harmful material on the Internet. 47 U.S.C. §223(a)(1)(B)(ii) criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Affirmative defenses are provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d).

In ACLU v. Reno, after making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoined the Government from enforcing §223(a)(1)(B)'s prohibitions insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §223(d) was unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to the Supreme Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is over-broad and the Fifth Amendment because it is vague. The Supreme Court held that the CDA's "indecent transmission" and "patently offensive display" provisions violated the First Amendment.