Recently, the Communications Decency Act (CDA), which was enacted with the express purpose of protecting children from indecent online communications, was held to violate the First Amendment. The Supreme Court criticized the ambiguous reach of the law, and found there was a less restrictive means of protecting minors: parental controls and filtering software. The Court said CDA would have had a chilling effect and would be an outright impediment to the exercise of many adults’ First Amendment rights. The Court stated, “we have repeatedly recognized the government interest in protecting children from harmful materials. …But that interest does not justify an unnecessarily broad suppression of speech addressed to adults…. ‘[R]egardless of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” (Reno v. ACLU)
The test most frequently used by courts to determine whether speech is indeed harmful to minors is a modified Miller obscenity test:
- Whether the average person applying contemporary community standards would find that the material taken as a whole would appeal to minors’ prurient interest in sex;
- Whether the material depicts an actual or simulated sexual act in a manner patently offensive by community standards as applied to a minor; and
- Whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
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 Moreover, court decisions may be superceded by subsequent rulings, and may be subject to alternative interpretations.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 firstname.lastname@example.org.