Second court finds Communications Decency Act unconstitutional
NEW YORK–The Communications Decency Act, part of the Telecommunications Act of 1996, violates the First Amendment because it bans constitutionally protected speech, the a special federal panel in Manhattan unanimously ruled in late July. A federal panel in Philadelphia reached a similar conclusion in mid-June.
A three-judge panel granted a preliminary injunction to The American Reporter, an on-line publication, holding that the act is overbroad. The court rejected the publication’s claim that the act was unconstitutionally vague.
The Philadelphia decision went further than this ruling, finding that the law was too vague as well as too broad.
The panel ruled that section 223(d) of the act, which set criminal penalties for knowingly making indecent materials available to minors on the Internet, was overbroad because it “serves as a ban on constitutionally protected indecent communication between adults.”
Rejecting the government’s claim that the act contains enough “safe harbors” that would release online publishers from liability, the court reasoned that “current technology provides no feasible means for most content providers to avail themselves of the two affirmative defenses.
“We cannot uphold a statute against a First Amendment challenge in the uncertain expectation that future technology will remedy any constitutional infirmities,” appellate judge Jose Cabranes wrote for the panel. The special panel was made up of one judge from the Court of Appeals in New York (2nd Cir.), and two district court judges, Leonard Sands and Denise Cote, as specified by the statute.
The American Reporter published an article earlier this year written by former state judge and current University of Texas law professor Steve Russell which contained language that is indecent under the act. The publication was not prosecuted under the act for the article, but filed suit seeking preliminary and permanent injunctions against enforcement of the law.
The case will be expedited on appeal to the U.S. Supreme Court, as specified within the statute. The Department of Justice is considering combining its appeal with the ACLU v. Reno case appealed in late June. (American Reporter v. Reno; Media Counsel: Randall Boe)