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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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The
ACLU (www.aclu.org)
challenged the constitutionality of the Communications
Decency Act (CDA) provisions seeking to protect
minors from harmful material on the internet.
The first of the challenged provisions of the
CDA (§223(a)) criminalized the transmission
of obscene or indecent messages to anyone under
age 18. The second provision (§223(d)) prohibited
the transmission or display to anyone under age
18 of a message "that, in context, depicts
or describes, in terms patently offensive as measured
by contemporary community standards, sexual or
excretory activities or organs.”
The Court ruled:
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The
challenged provisions were facially overbroad
in violation of the First Amendment. |
| • |
The
provisions of the CDA prohibiting transmission
of obscene, indecent, or “offensive”
communications through the internet to persons
under age 18, were content-based
restrictions on speech, and, as such,
were not valid as time,
place, and manner regulations.
| ยบ |
The
Court rejected the government’s
argument that the CDA should be analyzed
as a time, place, and manner regulation
because it left open alternate channels
through which the prohibited communication
could occur. |
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The
provision §223(a), prohibiting transmission
of obscene or indecent communications through
the internet to persons under age 18, could
be saved from the overbreadth challenge by
severing "or indecent" from statute.
The Court struck “or indecent,”
and allowed the remaining parts of §223(a)
addressing obscene communications to stand.
Obscenity
is not entitled to any protection under the
First
Amendment. |
| • |
The
provision §223(d), prohibiting the transmission
or display of messages “patently offensive”
according to community standards, was struck
down entirely. The Court found the “patently
offensive” standard overly broad and
vague in comparison with the Miller test for
obscenity. It was not limited by the requirements
that protect individuals from the infirmities
of the community standards prong, namely,
that the sexual conduct be specifically defined
and the work, taken as a whole, lacks serious
literary, artistic, political, or scientific
value. |
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The
Court did not fully consider the constitutionality
of the community
standards test contained in the CDA. When
assessing the overbreath and vagueness of
the provision, the court considered that,
“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
full statutory provisions are located in the statute
47 USCA §223 (Chapter 5).
Relevant cases: Ashcroft
v. American Civil Liberties Union, 535
U.S. 564 (2002) (challenging the Child Online
Protection Act (COPA)). |
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Significance: |
| This
case is significant because it does not rule out
the prohibition of “obscene” images
from transmission through the internet. Rather,
the case indicates that such a prohibition must
be specific and in line with its ruling in Miller
v. California. |
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| These
materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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