521 U.S. 844 (1997)
In 1996 Congress enacted the Communications Decency Act as Title V of the Telecommunications Act of 1996.1 Immediately after the President signed the bill, twenty plaintiffs including the American Civil Liberties Union filed suit in the Eastern District of Pennsylvania against the Attorney General challenging the constitutionality of 47 U.S.C. §§ 223(a)(1)(B) and 223(d).2 A week later a second suit was filed by twenty-seven additional plaintiffs; the cases were consolidated and a three-judge district court was convened.3
The district court conducted an evidentiary hearing based on a detailed stipulation of 356 paragraphs plus live testimony and made 410 findings of fact.4 Those findings described the Internet as an international network of interconnected computers that had grown from roughly 300 host computers in 1981 to approximately 9,400,000 by the time of trial, with about 40 million users expected to reach 200 million by 1999.5 The findings detailed communication methods including e-mail, mail exploders, newsgroups, chat rooms, and the World Wide Web, noting that any person or organization with Internet access could publish information and that the content available was as diverse as human thought.6
The district court further found that sexually explicit material on the Internet included text, pictures, and chat extending from the modestly titillating to the hardest-core, that such material was widely available but users seldom encountered it accidentally because a series of affirmative steps was required to access specific content, and that almost all sexually explicit images were preceded by warnings.7 The court determined there was no effective way to determine the identity or age of a user accessing material through e-mail, mail exploders, newsgroups, or chat rooms and that credit-card or adult-password verification systems were not economically feasible for most noncommercial providers and would impose significant burdens including the exclusion of adults without credit cards.8
The district court entered a preliminary injunction against enforcement of the two challenged provisions.9 The Government appealed directly to the Supreme Court under the CDA's special review provisions, and the Court noted probable jurisdiction.10
Whether two provisions of the Communications Decency Act of 1996 that criminalize the knowing transmission of indecent messages to recipients under 18, and the knowing sending or display of patently offensive messages in a manner available to persons under 18, violate the First Amendment on their face?11
Content-based restrictions on speech are subject to strict scrutiny and must be narrowly tailored to serve a compelling governmental interest; a statute that suppresses a substantial amount of protected adult speech is unconstitutionally overbroad.12
Yes. The two provisions constitute content-based blanket restrictions because they regulate speech according to whether it is indecent or patently offensive.13 The district court found after an evidentiary hearing that the Internet permits any person or organization to publish information and that the provisions would reach a vast range of material with serious educational or artistic value, including discussions of prison rape, safe sexual practices, and artistic images.14 The provisions impose criminal penalties of up to two years imprisonment and lack any effective means for speakers to limit access to adults only, given the absence of reliable age verification for e-mail, newsgroups, and chat rooms.15
These facts establish that the statute suppresses far more speech than necessary to protect minors.16
The two provisions abridge the freedom of speech protected by the First Amendment.17
Related opinions on this issue
Joined by Rehnquist, C. J.
Justice O’Connor agreed that the display provision is unconstitutional because it restricts adult access to protected speech in unzoned cyberspace.18 She would have upheld the transmission provision when applied only to communications sent to a recipient known to be under 18.19 She analogized that narrow application to the statute upheld in Ginsberg v. New York.20
Her view diverges from the majority by preserving a limited zone for direct adult-to-minor transmissions while rejecting broader applications that burden adult speech.21
Whether the affirmative defenses in the CDA for good-faith efforts to restrict minors' access or for requiring verified credit cards or adult identification numbers sufficiently narrow the statute's burden on protected speech?22
Affirmative defenses do not save an otherwise overbroad content-based restriction when they impose significant economic and technological burdens on noncommercial speakers and fail to provide reliable means for adults to communicate without risking criminal liability.23
No. The good-faith defense requires effective actions that do not currently exist for most Internet speakers, while credit-card and adult-password verification systems are not economically feasible for noncommercial providers and would exclude adults without credit cards.24 The district court found that no reliable technology allows a speaker to ensure that only adults receive a transmission in e-mail, mail exploders, newsgroups, or chat rooms.25
These defenses therefore leave the heavy burden on protected adult speech intact.26
The affirmative defenses do not sufficiently narrow the statute's burden on protected speech.27
Whether the CDA is unconstitutionally vague because its undefined terms 'indecent' and 'patently offensive' and its reliance on contemporary community standards fail to provide discernible standards distinguishing protected from unprotected speech?28
A criminal statute regulating the content of speech must provide clear standards so that speakers can predict what communications will be prohibited; undefined terms judged by varying community standards create an unacceptable chilling effect.29
Yes. The terms 'indecent' and 'patently offensive' receive no statutory definition. They extend beyond the Miller v. California obscenity test by omitting any requirement that material lack serious value or be specifically defined by law. The community-standards test forces speakers addressing a nationwide audience to comply with the most restrictive local standards. This produces a chilling effect on protected speech such as artistic or educational material, rendering the provisions facially invalid.30
The CDA is unconstitutionally vague.31
Whether the CDA's breadth is saved by comparison to precedents such as Ginsberg v. New York or FCC v. Pacifica Foundation given the distinct characteristics of Internet communication?32
Precedents permitting narrower restrictions on other media do not control when the regulated medium lacks the history of extensive government oversight, invasive qualities, or scarcity that justified those earlier holdings.33
No. Unlike the statute in Ginsberg, the CDA contains no limitation to commercial transactions, no definition requiring material to be utterly without redeeming value for minors, and no parental-consent exception.34 Unlike the broadcast order in Pacifica, the CDA imposes criminal penalties on a medium that does not invade the home without affirmative user steps and that has never been subject to the same regulatory regime as radio.35 The district court found that Internet users must take deliberate actions to retrieve specific content and that accidental exposure is rare, eliminating the justification for reduced scrutiny applied to broadcasting.36
The CDA's breadth is not saved by comparison to Ginsberg or Pacifica.37
Related opinions on this issue
Joined by Rehnquist, C. J.
Justice O’Connor viewed the CDA as an attempt to create adult zones on the Internet.38 She concluded that the display provision and applications of the transmission provisions involving more than one adult fail to preserve adult access because gateway technology is not yet ubiquitous.39 She would have sustained the transmission and specific-person provisions when all recipients are known minors.40
Her analysis emphasizes that the electronic world lacks the geography and identity features that make physical zoning feasible, diverging from the majority by upholding narrow applications that mirror Ginsberg.41