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RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET AL - 521 U.S. 844 (1997)
OCTOBER TERM, 1996
RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
No. 96-511. Argued March 19, 1997-Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes 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." Mfirmative 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)(I) and 223(d). Mter 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 enjoins the Government from enforcing § 223(a)(I)(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) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this 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 overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 864-885.
(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 864.
(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of "indecent" and omits any requirement that "patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 864-868.
(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media-the history of extensive Government regulation of broadcasting, see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp.868-870.
(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e. g., Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" stand-
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