Lesson 72 - Content Regulation: the CDA of 1996

Applying the Law, Part 1

Can we use the free speech framework we outlined earlier to figure out whether the CDA is constitutional? As usual, we'll have to oversimplify a bit; when the Supreme Court actually issues its decision in this case (by early July), it'll probably take many dozen pages to give the full explanation, and we're trying to swing it in 2000 words. But let's see how far we can get over the next couple(P) messages.

As we noted in our first message here, the most controversial part of the CDA prohibits anyone from

"us[ing] an interactive computer service"
"to display in a manner available to a person under 18 years of age"
"any comment, request, suggestion, proposal, image, or other communication"
"that, in context, depicts or describes,"
"in terms patently offensive as measured by contemporary community standards,"
"sexual or excretory activities or organs."

Speech in the public areas of cyberspace is generally available to minors, so the law really applies to all such areas, including Web sites, Internet newsgroups, e-mail discussion lists, chat rooms, and bulletin boards.

As we said in the very first message in the free speech material, the first inquiry must be whether the *government* is imposing such a restriction. The answer here is certainly "yes." A private service provider may certainly refuse to let its customers put up Web sites with "patently offensive" material; there'd be no free speech problem with that. But here, the *government* is acting.

The second inquiry is into the government's *role* -- is it acting as sovereign, proprietor, educator, or something else? Here, the government is acting as *sovereign*, passing general laws regulating people's conduct, which means the First Amendment provides some pretty strong protections. If the government were acting as, say, K-12 educator, the First Amendment protections would be much weaker; it's almost certain, for instance, that a school board could set up a CDA-like rule for posts by public school students on public school computers.

The third question is whether the speech falls into any of the unprotected categories, such as obscenity or child pornography. Some speech that the CDA bans would indeed fall into these categories, but a lot won't. The CDA covers speech that doesn't appeal to the prurient interest; for example, the CDA might be read as barring hard-core profanity. (We say "might" because the Act is fairly vague, though -- under the Court's recent decision on a similar question in Denver Area Educational Telecommunication Consortium v. FCC (1996) -- probably not unconstitutionally vague.)

The CDA also covers speech that has serious literary, artistic, political, or scientific value: For instance, Mapplethorpe photos, works such as the Kama Sutra or other ancient sexual art, or perhaps even frank discussions about sexually transmitted diseases, sexual dysfunction, and so on might all qualify. Thus, the obscenity and child pornography doctrines aren't enough to justify the CDA.

As we mentioned before, the Court has at times suggested that this sort of "indecent" speech, even if it isn't obscenity or child pornography, is "low-value" and thus gets a relatively low level of protection (even though it gets *some* protection). This is a very murky area, but it seems likely that the Court would *not* take such an approach here. We say this because in the precedent closest to this case -- Sable Communications v. FCC (1989), which involved a similar ban on "indecency" in telephone communications (chiefly focused on dial-a-porn) -- the Court refused to apply the "low-value speech" analysis. Instead, the Court treated the speech as fully protected.(P) So the Court will probably treat the CDA as involving the government, acting as sovereign, restricting fully protected speech. What's more, the government is regulating the speech *because of its content* -- not because the speech is too loud or blocks traffic, but because *what it says* is supposedly harmful. This means that the CDA is unconstitutional unless it passes the very demanding test called "strict scrutiny": The government must show that the CDA is

- "narrowly tailored" to a
- "compelling government interest."

OK, so now we have our test; but what does it really mean? Does the CDA serve a compelling interest? What's "compelling"? Is the CDA "narrowly tailored" to the interest, and what exactly does "narrow tailoring" require?(P) Well, the Court has never given entirely satisfactory definitions of these terms, but we do know a few things:

In Sable v. FCC, the Court concluded that the government *does* have a compelling interest in shielding children from the material banned by the CDA. Some people disagree, and think that this interest isn't compelling, but we're just telling you what the Court has said.
*However*, the Court has also held that this shielding must be done through the "least restrictive means." If there are "less restrictive alternatives" that can shield children without restricting as much speech as the ban would, then the ban is unconstitutional. At the same time, these proposed alternatives must still be *effective* at shielding children; if they are much less effective than the ban, then in theory the ban would be upheld.

So the constitutionality of the CDA comes down to this: Are there other ways in which the government can shield children that are *less restrictive* than the CDA but still at the same time *pretty much as effective* as the CDA?

In our next message, we'll tell you what we think.

authors:

Larry Lessig David Post Eugene Volokh

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