Communications Decency Act - Obscene Materials

Section 502 of the Communications Decency Act (CDA), codified at 47 U.S.C. § 223, makes it illegal to knowingly use a computer network to make “indecent” or “obscene” material available to minors. Almost immediately after this provision was enacted, the American Civil Liberties Union filed suit against its enforcement.

1. In Reno v. ACLU, 521 U.S. 844 (1997), the United States Supreme Court affirmed the lower court decision finding the above provisions unconstitutional. In a seven justice majority, the Court held that the Internet is entitled to the highest level of First Amendment protection and that the CDA’s restrictions on transmission of indecent material were ambiguous, chilled protected speech, lacked the required precision when the government attempts to regulate speech, and were not sufficiently narrowly tailored to the stated goal. Thus, the majority opinion held that the challenged provisions of the CDA were not sufficiently “narrowly tailored” to the stated congressional goal of protecting minors from potentially harmful materials. In a partial concurrence and partial dissent, Justice O’Connor and Chief Justice Rehnquist held that it may be possible to constitutionally apply the zoning concept of “adult zones” to the Internet, but that the CDA’s provisions did not satisfy the relevant tests for doing so.
2. In Playboy Entm’t, Inc. v. United States, 30 F. Supp. 2d 702 (D. Del. 1998), aff’d, 529 U.S. 803 (2000), the court declared Section 505 of the Act (47 U.S.C. § 561) unconstitutional and enjoined its enforcement. Section 505 requires video programming distributors to fully scramble or limit to certain hours of the day “sexually explicit adult programming or other programming that is indecent” even if transmitted on a channel “primarily dedicated to sexually oriented programming.” The purpose of this provision is to eliminate “signal bleed,” which is the partial reception of video and audio on a scrambled channel. Applying strict scrutiny to the content-based restriction, the court found that the provision was not the least restrictive means of addressing the problem of “signal bleed,” and thus violated the First Amendment.
3. In Apollomedia Corp. v. Reno, 19 F. Supp. 2d 1081 (N.D. Cal. 1998), aff’d, 526 U.S. 1061 (1999), the court upheld the validity of Section 223(a)(1)(A)(ii) of the CDA, which makes it a crime to transmit an “indecent” computer communication intended to “annoy” another person. The court held that despite the use of the word “indecent,” this particular provision of the CDA could be construed to apply only to “obscene” communications, and therefore is constitutionally valid.