SUPREME COURT OF THE UNITED STATES

Syllabus

RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. 
v. AMERICAN CIVIL LIBERTIES UNION et al.
Appeal from the United States District Court for the Eastern District Of
Pennsylvania


No. 96-511. Argued March 19, 1997 -- Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to
protect minors from harmful material on the Internet, an international network of
interconnected computers that enables millions of people to communicate with one
another in "cyberspace" and to access vast amounts of information from around the
world. Title 47 U. S. C. A. ¤223(a)(1)(B)(ii) (Supp. 1997) criminalizes the
"knowing" transmission of "obscene or indecent" messages to any recipient under
18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying
to a person under 18 of any message "that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards, sexual
or excretory activities or organs." Affirmative defenses are provided for those
who take "good faith, . . . effective . . . actions" to restrict access by minors
to the prohibited communications, ¤223(e)(5)(A), and those who restrict such
access by requiring certain designated forms of age proof, such as a verified
credit card or an adult identification number, ¤223(e)(5)(B). A number of
plaintiffs filed suit challenging the constitutionality of ¤¤223(a)(1) and
223(d). After making extensive findings of fact, a three judge District Court
convened pursuant to the Act entered a preliminary injunction against enforcement
of both challenged provisions. The court's judgment enjoins the Government from
enforcing ¤223(a)(1)(B)'s prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate and
prosecute the obscenity or child pornography activities prohibited therein. The
injunction against enforcement of ¤223(d) is unqualified because that section
contains no separatereference to obscenity or child pornography. The Government
appealed to this Court under the Act's special review provisions, arguing that
the District Court erred in holding that the CDA violated both the First
Amendment because it is overbroad and the Fifth Amendment because it is vague.



Held: The CDA's "indecent transmission" and "patently offensive display"
provisions abridge "the freedom of speech" protected by the First Amendment. Pp.
17-40.



(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth
inquiry, the judgment should be affirmed without reaching the Fifth Amendment
issue. P. 17.



(b) A close look at the precedents relied on by the Government--Ginsberg v. New
York, 390 U.S. 629; FCC v. Pacifica Foundation, 438 U.S. 726; and Renton v.
Playtime Theatres, Inc., 475 U.S. 41--raises, rather than relieves, doubts about
the CDA's constitutionality. The CDA differs from the various laws and orders
upheld in those cases in many ways, including that it does not allow parents to
consent to their children's use of restricted materials; is not limited to
commercial transactions; fails to provide any definition of "indecent" and omits
any requirement that "patently offensive" material lack socially redeeming value;
neither limits its broad categorical prohibitions to particular times nor bases
them on an evaluation by an agency familiar with the medium's unique
characteristics; is punitive; applies to a medium that, unlike radio, receives
full First Amendment protection; and cannot be properly analyzed as a form of
time, place, and manner regulation because it is a content based blanket
restriction on speech. These precedents, then, do not require the Court to uphold
the CDA and are fully consistent with the application of the most stringent
review of its provisions. Pp. 17-21.



(c) The special factors recognized in some of the Court's cases as justifying
regulation of the broadcast media--the history of extensive government regulation
of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
399-400; the scarcity of available frequencies at its inception, see, e.g.,
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638; and its
"invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115,
128--are not present in cyberspace. Thus, these cases provide no basis for
qualifying the level of First Amendment scrutiny that should be applied to the
Internet. Pp. 22-24.



(d) Regardless of whether the CDA is so vague that it violates the Fifth
Amendment, the many ambiguities concerning the scope of its coverage render it
problematic for First Amendment purposes. For instance, its use of the undefined
terms "indecent" and "patently offensive" will provoke uncertainty among speakers
about how the twostandards relate to each other and just what they mean. The
vagueness of such a content based regulation, see, e.g., Gentile v. State Bar of
Nev., 501 U.S. 1030, coupled with its increased deterrent effect as a criminal
statute, see, e.g., Dombrowski v. Pfister, 380 U.S. 479, raise special First
Amendment concerns because of its obvious chilling effect on free speech.
Contrary to the Government's argument, the CDA is not saved from vagueness by the
fact that its "patently offensive" standard repeats the second part of the three
prong obscenity test set forth in Miller v. California, 413 U.S. 15, 24. The
second Miller prong reduces the inherent vagueness of its own "patently
offensive" term by requiring that the proscribed material be "specifically
defined by the applicable state law." In addition, the CDA applies only to
"sexual conduct," whereas, the CDA prohibition extends also to "excretory
activities" and "organs" of both a sexual and excretory nature. Each of Miller's
other two prongs also critically limits the uncertain sweep of the obscenity
definition. Just because a definition including three limitations is not vague,
it does not follow that one of those limitations, standing alone, is not vague.
The CDA's vagueness undermines the likelihood that it has been carefully tailored
to the congressional goal of protecting minors from potentially harmful
materials. Pp. 24-28.



(e) The CDA lacks the precision that the First Amendment requires when a statute
regulates the content of speech. Although the Government has an interest in
protecting children from potentially harmful materials, see, e.g., Ginsberg, 390
U. S., at 639, the CDA pursues that interest by suppressing a large amount of
speech that adults have a constitutional right to send and receive, see, e.g.,
Sable, supra, at 126. Its breadth is wholly unprecedented. The CDA's burden on
adult speech is unacceptable if less restrictive alternatives would be at least
as effective in achieving the Act's legitimate purposes. See, e.g., Sable, 492 U.
S., at 126. The Government has not proved otherwise. On the other hand, the
District Court found that currently available user based software suggests that a
reasonably effective method by which parents can prevent their children from
accessing material which the parents believe is inappropriate will soon be widely
available. Moreover, the arguments in this Court referred to possible
alternatives such as requiring that indecent material be "tagged" to facilitate
parental control, making exceptions for messages with artistic or educational
value, providing some tolerance for parental choice, and regulating some portions
of the Internet differently than others. Particularly in the light of the absence
of any detailed congressional findings, or even hearings addressing the CDA's
special problems, the Court is persuaded that the CDA is not narrowly tailored.
Pp. 28-33.



(f) The Government's three additional arguments for sustaining the CDA's
affirmative prohibitions are rejected. First, the contention that the Act is
constitutional because it leaves open ample "alternative channels" of
communication is unpersuasive because the CDA regulates speech on the basis of
its content, so that a "time, place, and manner" analysis is inapplicable. See,
e.g., Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S.
530, 536. Second, the assertion that the CDA's "knowledge" and "specific person"
requirements significantly restrict its permissible application to communications
to persons the sender knows to be under 18 is untenable, given that most Internet
forums are open to all comers and that even the strongest reading of the
"specific person" requirement would confer broad powers of censorship, in the
form of a "heckler's veto," upon any opponent of indecent speech. Finally, there
is no textual support for the submission that material having scientific,
educational, or other redeeming social value will necessarily fall outside the
CDA's prohibitions. Pp. 33-35.



(g) The ¤223(e)(5) defenses do not constitute the sort of "narrow tailoring" that
would save the CDA. The Government's argument that transmitters may take
protective "good faith actio[n]" by "tagging" their indecent communications in a
way that would indicate their contents, thus permitting recipients to block their
reception with appropriate software, is illusory, given the requirement that such
action be "effective": The proposed screening software does not currently exist,
but, even if it did, there would be no way of knowing whether a potential
recipient would actually block the encoded material. The Government also failed
to prove that ¤223(b)(5)'s verification defense would significantly reduce the
CDA's heavy burden on adult speech. Although such verification is actually being
used by some commercial providers of sexually explicit material, the District
Court's findings indicate that it is not economically feasible for most
noncommercial speakers. Pp. 35-37.



(h) The Government's argument that this Court should preserve the CDA's
constitutionality by honoring its severability clause, ¤608, and by construing
nonseverable terms narrowly, is acceptable in only one respect. Because obscene
speech may be banned totally, see Miller, supra, at 18, and ¤223(a)'s restriction
of "obscene" material enjoys a textual manifestation separate from that for
"indecent" material, the Court can sever the term "or indecent" from the statute,
leaving the rest of ¤223(a) standing. Pp. 37-39.



(i) The Government's argument that its "significant" interest in fostering the
Internet's growth provides an independent basis for upholding the CDA's
constitutionality is singularly unpersuasive. The dramatic expansion of this new
forum contradicts the factual basisunderlying this contention: that the
unregulated availability of "indecent" and "patently offensive" material is
driving people away from the Internet. P. 40.



929 F. Supp. 824, affirmed.



Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which Rehnquist, C.
J., joined.


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