B A C K

I. THE CDA

The Communications Decency Act (CDA), signed into law by Clinton on February 8, 1996, 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 bill does not indicate an understanding of the unique nature of the online medium and can be used to ban the distribution of material which is clearly constitutionally protected for adults. Soliciting sex from a minor, and transmitting child porn, are just as criminal if done online as when done through any other medium. But legislators must be careful when applying these laws to cyberspace to ensure that only the initiators of the illegal messages may be held liable and that the laws don't stamp out the unique qualities of the Net.

This law, in attempting to keep adult materials from minors, unconstitutionally reduces all online content to that suitable only for children. As Net users know, minors could potentially gain access to any of the public areas on the Net. In addition, the definition of material that is "harmful to minors" under some of these bills could be interpreted to include online posting of sex education materials or abuse recovery discussion groups.

II. THE ACLU PROTEST

The ACLU filed its complaint on the same day that the bill was signed into law. The ACLU argued in the lower court that the censorship provisions protected by the First Amendment and because the terms "indecency" and "patently offensive" are unconstitutionally overbroad vague. Last spring, a federal court in Philadelphia issued a preliminary injunction barring the government from enforcing the challenged provisions of the CDA. The preliminary injunction opinion makes clear that 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. ACLU v. Reno represents the first legal challenge to censorship provisions of the Communications Decency Act (CDA).

Several weeks later, a second challenge was filed by nearly 30 plaintiffs, including the American Library Association. That suit, known as ALA v. DOJ, was subsequently consolidated with Reno v. ACLU. Although the two cases are consolidated and the legal teams working together, each plaintiff group has filed separate briefs throughout the case and will continue to do so.

The 20 ACLU v. Reno plaintiffs represent a wide variety of online users, content providers, and Internet service providers, including Human Rights Watch, Planned Parenthood, EFF and EPIC (national cyberspace rights groups), Critical Path AIDS Project, Wildcat Press (a gay and lesbian publisher) and the ACLU itself (see attached for a complete list). ALA v. DOJ plaintiffs comprise nearly 30 organizations, including the American Library Association, Internet companies, public interest groups, commercial and non-commercial content providers, and more than 50,000 individual Internet users.

III. THE APPEAL

Because of the anticipated struggle over the CDA, Congress stipulated an expedited path to the Supreme Court within the provsions of the bill, and on September 29, 1996, the Government filed an appeal of the Philadelphia decision of ACLU vs. Reno to the Supreme Court. Meanwhile, the ACLU has asked the Supreme Court to summarily affirm the lower court The ACLU will assert that the factual findings in the lower court decision are so extensive, and its legal conclusions are so indisputable under clearly established constitutional principles, that further argument is unnecessary. According to the ACLU's brief the three-judge lower court If the High Court grants summary affirmance of the lower court decision, Supreme Court review is effectively ended and no further argument or briefing will take place. A grant of summary affirmance would not only leave the lower court's preliminary injunction in place, it would legally uphold it. The case would then be sent back to the trial court for further proceedings concerning a permanent injunction.

In this eventuality, the ACLU would ask the same three-judge panel in Philadelphia to issue a permanent injunction against the censorship law on the basis of the Supreme Court's affirmance of the preliminary injunction. The District Court may then hold further hearings before granting a final injunction. Depending on whether the District Court grants or denies the permanent injunction, either the plaintiffs or the government could appeal the court's decision. If so, the case would return to the Supreme Court.

IV. THE THIRD CASE AND APPEAL

A third challenge to the CDA was filed in federal district court in New York in April of this year. That case, Shea v. Reno, was brought on behalf of Joseph Shea, editor of an on-line newspaper, The American Reporter. Shea's lawyers argued that the law would subject his newspaper to constraints that print publications do not face and that this posed a threat to the freedom of the press.

Following the same procedures as in the Philadelphia case, a three-judge panel was appointed to hear argument. On July 29 of this year,the New York judges joined their Philadelphia colleagues in unanimously ruling Internet censorship unconstitutional. On October 14, lawyers for the government filed a Jurisdictional Statement asking the Supreme Court to reserve judgment on the Shea case until Reno v. ACLU is resolved, either through review or summary affirmance. The Shea plaintiffs now have until mid-November to file a reply brief. It is not known at this time what legal strategy the Shea lawyers will pursue.

V. CDA ON THE STATE LEVEL

At least eleven states passed legislation in the last two years to regulate online content, and several others considered such bills, with some still pending.

Connecticut

  House Bill 6883, enacted 6/95.

  Sponsor: House Committe on Judiciary. 

  Creates criminal liability for sending an online message "with intent

    to harass, annoy or alarm another person."



California

  Expands obscenity and child pornography statutes to prohibit transmission

  of images by computer. 



Florida

  Amends existing child porn law to hold owners or operators of computer

  online services explicitly liable for permitting subscribers to violate

  the law. 



Georgia

  Criminalizes the use of pseudonyms on the Net, and prohibits unauthorized

  links to web sites with trade names or logos. 

  Prohibits online transmission of fighting words, obscene or vulgar speech

  to minors, and information related to terrorist acts and certain dangerous

  weapons. 



Illinois

  Prohibits sexual solicitation of a minor by computer. 



Kansas

  Expands child pornography statute to include computer- generated images. 



Maryland

  Amends child porn law to include online communication. 



Montana

  Expands child pornography statute to prohibit transmission by computer and

  possession of computer-generated child pornographic images. 



New York

  Criminalizes the transmission of "indecent" material to minors. 



North Carolina

  Expands existing law to prohibit sexual solicitation of a minor by

  computer. 



Oklahoma

  Prohibits online transmission of material deemed "harmful to minors." 

  Directs all state agencies, including educational institutions, to remove

  all illegal obscene material from their computer systems. 



Virginia

  Makes it illegal for any government employee, including professors at

  state universities, to use state-owned computer systems to access sexually

  explicit material. 

  Expands existing statute to criminalize electronic transmissions of child

  pornography. 



Many other states have bills pending . . .