Craig A. Johnson
Todd Lappin, WIRED Staff Editor sent me this well-done, concise
overview of some of the primary First Amendment issues which will
face the Net community if the "decency" standard prevails (which, at
this writing, seems almost inevitable).
Todd's summary is a valuable complement to some of the longer
analyses we have been and will be reading analyzing the status of the
case law, and how a defense may be prepared against this "indecent"
act of the U.S. Congress.
As Todd says, it "turns out there's a lot of encouraging precedent on
Date: Thu, 4 Jan 1996 10:51:31 -0800 (PST)
Sender: •••@••.••• (--Todd Lappin-->)
Subject: Supreme Court and the First Amendment
Here's the basic deal:
The First Amendment is NOT an absolute. The free speech provisions
contained within the First Amendment hold sway EXCEPT in cases where
the state has a "compelling government interest" in limiting citizens'
rights of free expression. Protecting children from exposure to
content which is "indecent" has long been recognized as one of those
compelling interests. As it so happens, that's also the alleged
"justification" for the Communications Decency Act.
Fortunately, the Supreme Court has also decreed (repeatedly) that the
State's compelling interest in protecting children from "indecent"
material MUST be exercised through the "least restrictive means
Here's an example of how that comes into play:
In the case of Federal Communications Commission v. Pacifica
Foundation (1978), the Supreme Court ruled that the FCC was NOT
violating the First Amendment when it complained about a radio
station's decision to broadcast a recording of George Carlin's "Filthy
Words" monologue at 2 PM in the daytime.
Why did the court uphold the "indecency" standard as it applies to
*exclusively* broadcasting? Here's what the court said:
"Of all forms of communication, broadcasting has the most limited
First Amendment protection. Among the reasons for specially treating
indecent broadcasting is the uniquely pervasive presence that medium
of expression occupies in the lives of our people. Broadcasts extend
into the privacy of the home and it is impossible completely to avoid
those that are patently offensive. Broadcasting, moreover, is uniquely
accessible to children."
If the ACLU ends up fighting CDA in court, the ACLU will need to prove
that there are other, "less restrictive means" available to protect
minors from indecent content, short of broad government censorship.
Filtering technology such as Surfwatch or Net Nanny, for example, seem
to fit the bill. They accomplish the "compelling interest" of
protecting minors by allowing adults to choose for themselves what is
and is not appropriate for their children to see WITHOUT requiring
Given the criteria established above, we will also need to demonstrate
why online media is NOT the same as broadcast. With the First
Amendment, context is king.
Such arguments have proven effective in the past. In 1989, for
example, the Supreme Court ruled (in Sable Communications v.FCC) that
a flat-out ban on dial-a-porn services was unconstitutional.
Here's a great passage from Sable, in which the "least restrictive
means" test is clearly laid out:
"Sexual expression which is indecent but not obscene is protected by
the First Amendment; and the federal parties do not submit that the
sale of such materials to adults could be criminalized solely because
they are indecent. The Government may, however, regulate the content
of constitutionally protected speech in order to promote a compelling
interest if it chooses the least restrictive means to further the
articulated interest. We have recognized that there is a compelling
interest in protecting the physical and psychological well-being of
minors. This interest extends to shielding minors from the influence
of literature that is not obscene by adult standards. <=32> Ginsberg
v. New York, 390 U.S. 629, 639-640 (1968); <=33> New York v. Ferber,
458 U.S. 747, 756-757 (1982). The Government may serve this
legitimate interest, but to withstand constitutional scrutiny, "it
must do so by narrowly drawn regulations designed to serve those
interests without unnecessarily interfering with First Amendment
freedoms. Hynes v. Mayor of Oradell, 425 U.S., at 620; First National
Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978)."Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620, 637 (1980). It is not
enough to show that the Government's ends are compelling; the means
must be carefully tailored to achieve those ends"
Nicely said. And with all this in mind, the Court concluded:
"Because the statute's denial of adult access to telephone messages
which are indecent but not obscene far exceeds that which is
necessary to limit the access of minors to such messages, we hold that
the ban does not survive constitutional scrutiny."
Given the state's "compelling interest" in protecting minors from
inappropriate content in the absence of other, "less restrictive
means," these issues are central to the question of whether or not the
Communications Decency Act is unconstitutional. Our job is to make
sure that people understand that TOOLS NOW EXIST which will allow
parents to take responsibility for what their kids should see on the
One final note. The Supreme Court has also upheld the ideal that you
CANNOT dumb a medium down to the level of children if less restrictive
means exist to achieve the goal of sheltering minors from
In Butler v. Michigan (1957), a unanimous Court reversed a conviction
under a statute which made it an offense to make available to the
general public (printed) materials found to have a potentially harmful
influence on minors. The Court found the law to be insufficiently
tailored since it denied adults their free speech rights by allowing
them to read only what was acceptable for children. As Justice
Frankfurter said in that case,"Surely this is to burn the house to
roast the pig."