Reno v. ACLU: How Does Freedom of Speech Apply to the Internet?

Supreme Court ruling on the restriction of online speech

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Reno v. ACLU offered the Supreme Court its first chance to determine how freedom of speech would apply to the internet. The 1997 case found that it is unconstitutional for the government to broadly restrict the content of online speech.

Facts of the Case

In 1996, the internet was a relatively uncharted territory. Concerned about protecting children from “indecent” and “obscene” material on the World Wide Web, lawmakers passed the Communications Decency Act of 1996. The act criminalized the exchange of “indecent” information between adults and minors. A person in violation of the CDA could be subject to jail time or up to $250,000 in fines. The provision applied to all online communications, even those between parents and children. A parent could not give their child permission to view material classified as indecent under the CDA.

The American Civil Liberties Union (ACLU) and the American Library Association (ALA) filed separate lawsuits, which were consolidated and reviewed by a district court panel. 

The lawsuit focused on two provisions of the CDA which prohibited the "knowing transmission" of  "obscene", "indecent" or "patently offensive" to a recipient under 18 years of age.

The district court filed an injunction, preventing enforcement of the law, based on over 400 individual findings of fact. The government appealed the case to the Supreme Court.

Constitutional Issues

Reno v. ACLU sought to test the government's authority for restricting online communications. Can the government criminalize sexually indecent messages sent to users under the age of 18 on the internet? Does the First Amendment freedom of speech protect these communications, regardless of the nature of their content? If a criminal law is vague, does it violate the Fifth Amendment?

The Arguments

Counsel for the plaintiff focused on the idea that the statute imposed too broad of a restriction on a person’s First Amendment right to freedom of speech. The CDA failed to clarify vague terms like “indecency” and “patently offensive.” Counsel for the plaintiff urged the court to apply strict scrutiny in their review of the CDA. Under strict scrutiny, the government must prove that the legislation serves a “compelling interest.”

Counsel for the defendant argued that the statute was well within the parameters set by the court for restricting speech, relying on precedents set by jurisprudence. The CDA did not overreach, they argued, because it only restricted specific communications between adults and minors. According to the government, the benefit of preventing “indecent” interactions outweighed the limitations placed on speech without redeeming social value. The government also advanced a “severability” argument to try and save the CDA if all other arguments failed. Severability refers to a situation where a court issues a ruling that finds only one part of a law unconstitutional but keeps the rest of the law intact.

Majority Opinion

The court unanimously found that the CDA violated the First Amendment by enforcing overly broad restrictions on free speech. According to the court, the CDA was an example of a content-based restriction of speech, rather than a time, place, manner restriction. This meant that the CDA aimed to limit what people could say, rather than where and when they could say it. Historically, the court has favored time, place, manner restrictions over content restrictions for fear that restricting content could have an overall “chilling effect” on speech.

In order to approve a content-based restriction, the court ruled that the statute would have to pass a strict scrutiny test. This means that the government would have to be able to show a compelling interest in restricting speech and demonstrate that the law was narrowly tailored. The government could not do either. The language of the CDA was too broad and vague to satisfy the "narrowly tailored" requirement. Furthermore, the CDA was a pre-emptive measure as the government could not provide evidence of “indecent” or “offensive” transmissions to demonstrate the need for the law.

Justice John Stevens wrote on behalf of the court, “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

The court accepted the “severability” argument as it applied to the two provisions. While the “indecent” statute was vague and overreaching, the government had a legitimate interest in restricting “obscene” material as defined by Miller v. California. As such, the government could remove the term “indecent” from the text of the CDA to prevent further challenges.

The court chose not to rule on whether the vagueness of the CDA warranted a Fifth Amendment challenge. According to the opinion of the court, the First Amendment claim was sufficient to find the Act unconstitutional.

Concurring Opinion

In the majority opinion, the court ruled that it was not persuaded by the government's claim that software could be designed to "tag" restricted material or block access by requiring age or credit card verification. However, it was open to the possibility of future advancements. In a concurring opinion that acted as a partial dissent, Justice Sandra Day O'Connor and Justice William Rehnquist entertained the notion of "zoning." If different online zones could be designed for different age groups, the justices argued that the zones could be covered by real-world zoning laws. The justices also opined that they would have accepted a more narrowly tailored version of the CDA.

Impact

Reno v. ACLU created a precedent for judging laws governing speech on the internet by the same standards as books or pamphlets. It also re-confirmed the court's commitment to erring on the side of caution when considering the constitutionality of a law that restricts free speech. Congress attempted to pass a narrowly tailored version of the CDA called the Child Online Protection Act in 1998. In 2009 the Supreme Court struck down the law by refusing to hear an appeal against a lower court decision in 2007 that found the law unconstitutional on the basis of Reno v. ACLU.

Although the Court gave the internet the highest level of protection in terms of free speech in Reno v. ALCU, it also left the door open to future challenges by ruling based on readily available technology. If an effective way to verify the age of users becomes available, the case could be overturned.

Reno v. ACLU Key Takeaways

  • The Reno v. ACLU case (1997) presented the Supreme Court with its first opportunity to determine how freedom of speech would apply to the internet. 
  • The case centered on the Communications Decency Act of 1996, which criminalized the exchange of "indecent" information between adults and minors.
  • The court ruled that the CDA's content-based restriction of online speech violated of the First Amendment freedom of speech.
  • The case set a precedent for judging online communications by the same standards that books and other written materials receive under the First Amendment.

Sources

  • “ACLU Background Briefing - Reno v. ACLU: The Road to the Supreme Court.” American Civil Liberties Union, American Civil Liberties Union, www.aclu.org/news/aclu-background-briefing-reno-v-aclu-road-supreme-court.
  • Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) .
  • Singel, Ryan. “Child Online Protection Act Overturned.” ABC News, ABC News Network, 23 July 2008, abcnews.go.com/Technology/AheadoftheCurve/story?id=5428228.