Reno V Aclu Essay

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Reno v. ACLU

The conflict began on February 8, 1996, when President Clinton signed the CDA law and ACLU, along with EPIC and eighteen other plaintiffs, immediately filed its legal challenge. ACLU v. Reno represents the first legal challenge to censorship provisions of the Communications Decency Act (CDA). The CDA makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is “indecent” or “patently offensive” on computer networks if the speech can be viewed by a minor. The ACLU is a nationwide, non-partisan organization dedicated to defending and preserving the Bill of Rights for all individuals through litigation, legislation and public education. EPIC is a non-profit, education and research organization based in Washington, D.C. EPIC examines civil liberties and privacy issues that arise in new electronic media. Janet Reno was the attorney general for the U.S.

The kind of “indecency” identified as potentially criminal by government witnesses in Reno v. ACLU included Internet postings of the photo of the actress Demi Moore naked and pregnant on the cover of Vanity Fair, and any use online of the famous “seven dirty words”. In addition, the CDA would put at risk much of the socially valuable material posted online by the plaintiffs, including the ACLU, Planned Parenthood, Stop Prisoner Rape, Human Rights Watch and Critical Path AIDS Project. The ACLU argued that everyone, including minors, are entitled to have access to such socially valuable information.

Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter were appointed to hear the preliminary injunction, which included five days of live testimony, written testimony, documentary evidence, and detailed stipulations about the nature of the online medium. The decision issued by the District Court contained over 400 separate findings of fact that included information about the nature of communication and content in the cyberspace medium.

The ACLU argued in the lower court that the censorship provisions are unconstitutional because they would criminalize expression that is protected by the First Amendment and because the terms “indecency” and “patently offensive” are unconstitutionally overbroad and vague. ACLU plaintiffs Particia Nell Warren of Wild Cat Press and Kiyoshi Kuromiya of the Critical Path AIDS Project told judges they fear censorship under the new law. Ann Duvall, president of Surf Watch, took judges on a first-ever live tour of the Internet, including a demonstration of how her company’s software blocks access to sites deemed unsuitable for children. Dr. Donna Hoffman, an expert witness on marketing in cyberspace, tells the court that the censorship law would destroy the democratic nature of cyberspace, causing many “mom & pop” websites to close up shop for fear of civil and criminal penalties under the vague “indecency” ban.

Government witness Howard Schmidt conceded under cross-examination that it is “highly unlikely” for anyone to come across sexually explicit information on the Internet by accident. Plaintiff witness Dr. Albert Vezza told the court about PICS (Platform for Internet Content Selection), a new rating system designed to allow parents to control children’s access to the Internet without censorship. Dan Olsen, another government witness, acknowledged that PICS would allow parents to control their children’s Internet access according to their own values.

These judges decided in favor of free speech in cyberspace and the end of the CDA law. The lower court agreed with the ACLU’s view that the CDA’s ill-conceived effort to censor speech in the unique medium of cyberspace violates the First Amendment.

When the government decided to appeal the preliminary injunction ruling to the Supreme Court, it offered this court its first opportunity to consider how traditional free speech principles should be applied to the Internet. The government appealed to the Supreme Court, not by writ of certiorari, but by direct appeal because the CDA itself provides for a right of direct appeal to the Supreme Court. The court accepted Reno v. ACLU for full review.

The Court recognized the speech enhancing qualities of cyberspace, saying that “the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, and in the absence of evidence to the contrary, we presume government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.” The Court ruled that the CDA places an “unacceptably heavy burden on protected speech,” which “threatens to torch a large segment of the Internet community.” With these words, the Supreme Court closed its opinion: “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproved benefit of censorship.” In a virtually unanimous decision written by Justice Stevens, the Supreme Court ruled 7-2 to affirm the lower court decision striking down the CDA as unconstitutional. Justice O’Connor, with Chief Justice Rehnquist, concurred in the judgment but dissented in part.

In its ruling, the Court does several important things that will have an impact in the future. It gives evidence that the CDA is unconstitutional, it refutes its own decision in Pacifica v. FCC, and it tackles the analogy question about the Internet.

The Justices agreed that the CDA violates the First Amendment due to its vagueness and overbreadth, calling the CDA “a content-based blanket restriction on speech.” They also found it ambiguous in that “each of the two parts of the CDA uses a different linguistic form.” The Supreme Court was very concerned that serious speakers on issues like “birth control practices, homosexuality,” and “the consequences of prison rape” would be dampened by the CDA. The severity of its criminal penalties “may well cause speakers to remain silent rather that communicate even arguably unlawful words, ideas and images.”

The government’s argument was that because the CDA’s indecency language overlaps a section of the three-part Miller standard used in obscenity prosecutions, the law is not vague. Both the CDA and Miller standard hold that the material in question must be “patently offensive under contemporary community standards.” Reno v. ACLU leaves obscenity laws alone and deals only with the issue of non-obscene “indecent” speech. The Court said that a term that is not vague in context might be vague when standing alone. It explained in footnote thirty-eight:

Even though the word ‘trunk’, standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals.

The Justices concluded that the CDA “unquestionably silences some speakers whose messages would be entitled to constitutional protection.”

Stopping the CDA was the reason the case came into being, but the Justices did not cease there. They also reversed the ruling of Pacifica v. FCC, popularly known as the “Seven Dirty Words” case, from twenty years ago. Until Pacifica, the Court had always justified censorship of radio and television based on a doctrine known as “spectrum scarcity”. In other words, the government’s role in assigning frequencies in the scarce broadcast spectrum led to a role in reviewing content as well. In Pacifica, the Court labeled these mediums as “pervasive” and said that was why the government could censor. The Court defines radio and television as pervasive because it comes into the household, and...

ACLU press release for June 26, 1997. “Supreme Court Rules: Cyberspace Will be
Free!” 3 pp. Online. Internet. 20 Nov. 1999. Available
http://www.aclu/n062697a.htm.
ACLU press release for June 26, 1997. “ACLU v. Reno: A Chronology.” 5 pp. Online.
Internet. 20 Nov. 1999. Available http://www.aclu/n050896.htm.
ACLU v. Reno. 71 pp. Online. Internet. 20 Nov. 1999. Available
http://www.cmcnyls.edu/public/Index.htm.
Dilts, and Holsinger. Media Law. 4th Edition. 1998.
EPIC and ACLU joint press release for June 16, 1997. “ACLU, EPIC Call on Congress
and Clinton to “Take the First Amendment Pledge.” 2 pp. Online. Internet.
20 Nov. 1999. Available http://www.aclu/n061697c.htm.
Epic press release. “ACLU v. Reno II.” 3 pp. Online. Internet. 21 Nov. 1999.
Available http://www.epic.org/free_speech/copa/release_10_22.html
Johnson, Peter. “Cyberspeech in Court.” 4 pp. Online. Internet. 21 Nov. 1999.
Available http://web.lexis-nexis.com
Reno v. ACLU. 44 pp. Online. Internet. 20 Nov. 1999. Available http://oyez.nwu.edu/. You should cite this paper as follows:

MLA Style
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