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:
- 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.
- 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.
- 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.
- 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)).
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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