RENO V ACLU

Reno, Attorney General of the United States,

et al. v. American Civil Liberties Union et.al
June 26, 1997
Supreme Court of the United States

Norfadhilah Mohd Ali

• Feb 8, 1996, immediately after the President signed the
CDA, 20 plaintiffs filed suit against AG of USA
challenging the constitutionality of s223 (a) and 223(d)
• Judges comment:
• The provisions sweeps more broadly than necessary
because of the vague terms
• Defenses were not technologically and economically
feasible to users
• Should be applied only to commercial pornographers
• It is not defined to exclude work of serious literary,
artistic, political or scientific value.
 The Government’s argument
• Ginsberg v. New York – prohibit selling to
minors under 17 yr material that was
considered obscene
• Pacifica – an afternoon broadcast of a
recording of a 12 minute monologue
entitled filthy words to live audience.
• Renton – zoning ordinance that kept adult
movie theatres out of residential
neighborhoods.
• Challenges against the Communications
Decency Act 1996 (an attempt to create “adult
zones” in the internet.
• The challenges:
• -it is a crime to knowingly transmit an obscene or
indecent message or image to a person the
sender knows is under 18 years old
• -It criminalizes the display of patently offensive
messages or images on any manner available to
minors
• Case laws made it clear that “zoning” law is valid
only if adults are still able to obtain the regulated
speech – First Amendment
• Affirmative defenses are provided for those who
take “good faith,…effective…actions: to restrict
access to minors to the prohibited
communications, or those who restrict access by
requiring certain info – credit card or adult
identification number.
 Description of internet by the court
• The history of internet.
• Has a wide variety of communication and information
retrieval methods: transmission of data and retrieve of
information – navigating the Web
• Cyberspace allows speakers and listeners to mask their
identities.
• It is impossible to exclude persons from accessing
certain messages on the basis of their identity.
• Now there is a move zone cyberspace through the use
of ‘gateway’ technology. – internet users enter
information about themselves. Using screening soft
wares but it is not available to all Web speakers.
 Sexually explicit material
• It can be light or heavy – from modestly titillating
to the hardest core.
• Once a provider posts its content on the internet,
it cannot prevent the content from entering any
community.
• Although such material is widely available, users
seldom encounter such content accidnetally.
Thus odds are slim that a user would enter a
sexually explicit site by accident.
• Unlike the radio or television, the recepit of
information on the internet requires a
series of affirmative steps.
• Although the eventual zoning is promising
but the court has evaluate the
constitutionality of CDA as it applies to the
Internet as it exists today.
• The CDA is therefore akin to a law that
makes it a crime for a bookstore owner to
sell pornographic magazines to anyone
once a minor enters his store.
 Held:
• CDA is vague – undefined terms : “indecent” and
“patently offensive” – how to measure them?
Miller v California:specifically defined by
applicable state law. CDA seems to extend to
“excretory activities” and “organs”
• What if the messages are with artistic or
educational value?
• The CDA abridge the freedom of speech
protected by the First Amendment