Case history

From news report to law: the CDA's route to the Supreme Court

(CNN) -- The Communications Decency Act (CDA) had its roots in a report on online pedophiles aired in 1994 on NBC's "Dateline." Democratic Sen. James Exon of Nebraska used the program to launch a campaign to regulate online communication.

That campaign failed on its own, but Exon's proposal, the Communications Decency Act, survived as an amendment to an overhaul of the telecommunications act.

A L S O A brief history of the right to free speech in America

But the Senate passed the CDA on June 14, 1995, by an 84-16 vote. Even House Speaker Newt Gingrich said the amendment was unconstitutional.

The amendment called for up to $100,000 fines and two years in prison for "obscene, lewd, lascivious, filthy, or indecent" language, intended to annoy or harass. The amendment put the Federal Communications Commission in charge of Internet regulation and made online service providers legally responsible for what their users posted.

In its deliberations over the Telecommunications Reform Act, the House of Representatives passed the Internet Family Empowerment Amendment. Proposed by Rep. Christopher Cox, R-California, and then-Rep. Ron Wyden, D-Oregon, the amendment was less restrictive. It doesn't make online service providers liable for the activity of their users, and it doesn't give the FCC carte blanche to regulate.

The Cox-Wyden amendment passed the House overwhelmingly, by a 420-to-4 vote.

On the same day -- August 4, 1995 -- the House passed provisions to another part of the telecom bill making it illegal to transmit images or text describing or depicting sexual or excretory activities or organs "in terms patently offensive as measured by contemporary standards."

A conference committee began work September 21 on an effort to reconcile the House and Senate versions of the bill. Several weeks later, committee member Rep. Rick White proposed a compromise that dropped the "indecent" standard of Exon's original amendment in favor of a definition of illegal material as that which is "harmful to minors."

White's compromise also upped the fines for violating the act to a maximum $250,000 with prison terms up to five years.

The conference committee approved White's amendment, but Rep. Bob Goodlatte, R-Virginia, sponsored a proposal to restore the indecency standard and the committee approved that change on December 6.

Goodlatte's proposal defined indecent as "any comment, request, suggestion, proposal, image, or other communications, that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

On February 1, 1996, both houses of Congress voted overwhelmingly to approve the entire Telecommunications Reform Act, including the Communications Decency Act. President Clinton signed the bill into law on February 8. On the same day, the American Civil Liberties Union and 19 other groups filed suit challenging the its constitutionality.

The CDA's days in court

The Communications Decency Act was on the books for only a week before U.S. District Judge Ronald Buckwalter issued a restraining order temporarily blocking it.

Buckwalter allowed enforcement of the part of the law dealing with prosecution of those who made such materials available to minors, but said the plaintiff's had "raised serious, substantial, difficult and doubtful questions" about the law's use of the word "indecent."

The definition, the ACLU contended, was too vague. The ACLU did not object to provisions banning obscene material, which they said has been defined satisfactorily for print and broadcast media for some time.

Specifically, plaintiffs contended that "contemporary community standards" were quite different in various communities across the country. Additionally, the plaintiffs contend that the CDA would be virtually impossible to enforce against Internet users living outside the United States.

A second challenge to the CDA was filed by the Citizens Internet Empowerment Coalition, led by the American Library Association, America Online and the Center for Democracy and Technology. Filed two weeks after the ACLU's, the second case -- styled ALA v. DOJ -- was consolidated with ACLU v. Reno on February 27, 1996.

Buckwalter, Chief Judge Dolores Sloviter and Judge Stewart Dalzell composed the panel that heard the cases against the act.

The judges got an extensive crash course in computer and Internet technology and terminology as both sides presented their arguments. They surfed, they saw sexually explicit material online, and they saw software that can block it.

The panel heard closing arguments May 10, and on June 12 issued a decision upholding the restraining order barring enforcement of the law, saying it most likely did violate the right to free speech.

"As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion," the judges wrote.

By that time, the law was being challenged by a coalition of 57 plaintiffs.

Late last year, the Supreme Court agreed to entertain briefs filed by the litigants in the government's appeal of the district court ruling.

On March 19, attorneys for both sides argued the law's merits in front of the nine justices.

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