Communications Decency Act ruled unconstitutional

PENNSYLVANIA–The Communications Decency Act is unconstitutional on its face, a special three-judge federal court in Pennsylvania ruled in mid-June. The government is enjoined from enforcing those portions of the statute, part of the Telecommunications Reform Act of 1996, that provide for criminal penalties for using any telecommunications device to transmit “indecent” or “patently offensive” speech to minors.

In a 175-page decision, the three-judge panel unanimously agreed that the act was unconstitutional on free speech grounds. All three judges wrote separate opinions supporting the decision.

The court held that the plaintiffs met the standard for a preliminary injunction because they could be irreparably injured if prosecuted for posting otherwise constitutionally protected material on the Internet.

Finding that the act must be reviewed with “strict scrutiny” as a government-imposed content-based restriction on speech, Chief Judge Dolores Sloviter found that the CDA was not justified by a compelling government interest and was not narrowly tailored to satisfy a legitimate interest. She reasoned that although the government has an interest in protecting children from obscenity, the act would ban even protected speech, such as news articles on female genital mutilation, from the Internet.

Sloviter also expressed concern that because of the broad language of the act, the Department of Justice and the courts would have to be trusted to enforce it evenly and fairly. But entrusting enforcement to the government “would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce’s ‘Ulysses’ as obscene,” she wrote.

Judge Ronald Buckwalter also found the act inherently vague and overbroad. He found that the terms “indecent,” “in context,” and “patently offensive” were unconstitutionally vague. While Judge Stewart Dalzell did not find the act unconstitutionally vague on its face, he did conclude that the plaintiffs could reasonably fear prosecution under the act and that the special attributes of communication on the Internet mandate a finding that the act is unconstitutional.

“Our findings of fact — many of them undisputed — express our understanding of the Internet. These findings lead to the conclusion that Congress may not regulate indecency on the Internet at all,” Dalzell wrote.

The court noted that its decision does not disturb the already unlawful status of obscenity or child pornography, either on the Internet or elsewhere. The court likewise did not address another provision of the act which would criminalize speech over the Internet concerning the use of tools and materials to produce an abortion. The government had already conceded that this section is unenforceable.

The act mandates that the U.S. Supreme Court must hear an appeal of the case.

The suit was brought in early February by the American Civil Liberties Union and nineteen other parties, including interest groups and online publishers. It was eventually consolidated with another suit brought by the American Library Association. Both suits were filed against the Department of Justice and Attorney General Janet Reno.

Judge Buckwalter issued a temporary injunction barring the government from enforcing the provisions relating to “indecent” speech in mid-February, pending full review by the panel. (ACLU v. Reno; American Library Association v. Department of Justice; Plaintiff’s Counsel: Christopher Hansen, New York; Bruce Ennis, Washington, D.C.)