Cybertelecom Federal Internet Law & Policy An Educational Project

Communications Decency Act  Reference

• Telecommunications Act of 1996
• Communications Decency Act
  • Legilsative History
    • The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Informationf Superhighway, 49 Federal Communications Law Journal 51 (1996).
    • Content Restrictions For Interactive Computer Services in the Telecommunications Act of 1996 (How CDA Would Have Worked with links to original legislation and conference report).
    • Congressional Conference Report on the CDA.
    • Sec. 501 et seq. of the Telecommunications Act of 1996 (The Communications Decency Act)
    • 18 USC 1462
    • 18 USC 1465
    • 18 USC 2510
    • Chronology
• Hyde Amedment
  • Congressional Record (comments by Representative Hyde on restriction of abortion communications).

  • Letter From Attorney General Janet Reno to V.P. Gore (February 9, 1996);
  • ACLU Press Release (February 15, 1996).

Supreme Court Unanimously Declares CDA Unconstitutional!

• Supreme Court Decision.  Reno v. ACLU, 521 US 844 (1997)
• 47 U.S.C. § 223 after SCt Decision

Last Updated: July 8, 1997

On June 26, 1997, on the second to last day in the Court's term, the United States Supreme Court handed down its decision in ACLU v. Reno, the constitutional challenge to the Communications Decency Act. The Court unanimously concluded that the CDA as challenged was unconstitutional. A copy of the decision can be found at multiple places around the WWW including the ACLU homepage,EPIC, and CIEC. See also what is left of 47 USC s 223, the statute amended by the CDA, after the Supreme Court decision. The provisions of the CDA outlawing the transmission of obscenity (as opposed to indecency) were not challenged and remain intact.

A full analysis' of the Court's decision will be posted soon. In the mean time, check the web pages of the organizations listed above for their analysis and statements concerning the decision. Legislation taking a second stab at attacking online pornography has already been introduced into the US Congress.

History in the Supreme Court

On July 1, 1996, in the midst of the 1996 election campaign in which President Clinton was busy making his "centralist" bid, the United States Department of Justice filed a notice of appeal of ACLU v. Reno. See Letter From DOJ to Senator Exon (June 26, 1996) (stating DOJ's plan to appeal Philadelphia Court Decision). Pursuant to the Telecommunications Act of 1996, the U.S. Supreme Court is required to hear this case - it cannot deny certiorari. See Cornell University - Information About the Supreme Court .

On October 31, 1996, challenges filed its response of appellees to appellant's jurisdictional statement, in which they moved for summary affirmance of the Philadelphia Court decision. See ACL U Response ; CIEC Response. On December 6, 1996, the Supreme Court found that it had probable jurisdiction and set a briefing schedule. See CI EC Statement. A decision is expected for late Spring 1997. See Chronology Below for briefing schedule.

The Department of Justice, seven Senators and seventeen House members, and private sector supporters of the Communications Decency Act filed briefs arguing for reversal of the Philadelphia Court's decision declaring the CDA unconstitutional. See DO J Brief.; A mici Curae Brief of Members of Congress in Support of CDA; Amici Curae Brief filed by "Enough is Enough" et al. The Members of Congress who filed a joint amicus brief include, according to Communications Daily, Exon, Bond, Coats, Grams, Grassley, Helms, Inhofe, Santorum, Hall, Hyde, Barlett, Boehlert, Goodlatte, Hunter, Hutchinson, Jenkins, Jones, Largent, Ryun, Schieff, Sensenbrenner, Smith, Souder, Weldon, and Wolf. The Congressional brief was reportedly prepared by Cahtleen Cleaver, legal director, Family Research Council, and Bruce Taylor, president of the National Law Center for Children & Families.

On February 20, 1997, the ACLU and CIEC filed briefs with the Supreme Court. The ACLU's brief can be found at http://www.aclu.o rg/court/renovaclu.html . The CIEC's brief can be found at http:/ /www.cdt.org/ciec/SC_appeal/970220_brief.html . Amicus brief's were reportedly filed by the following additional orgainzations:

• Site Specific, Inc. and Jon Lebkowsky requesting that the Supreme Court find that the proper analogy for cyberspace is "print media." http://www.specta cle.org/cda/amicus.html .
• Reporters' Committee for Freedom of the Press. http://www.rcfp.org/rcf p/reno.html
• National Association of Broadcasters with ABC, NBC and CBS
• Apollo Media
• Feminists for Free Expression
• New York State Bar Association
• Playboy
• US Chamber of Commerce http://www.wrf.com/pub/brief2.html
• Association of National Advertisers and the Media Institute

On March 7, 1997, DOJ filed its reply brief with the Supreme Court. http://www .ciec.org/SC_appeal/970307_brief.html This was the final filing.

Oral argument was held on March 19 at 10:00 a.m. The ACLU has uploaded a copy of the Supreme Court oral argument trascript at http://www.aclu.org/i ssues/cyber/trial/sctran.html . Other accounts of the days events can be found at the following sites: ACLU Press Conference (real audio) ; News.Com Analysis of the Argument ; MSNBC's Analysis .

Communication s Decency Act Declared Unconstitutional, FCBA News (September 1996)

Statement by President Clinton in reaction to Court Decision

On February 1, 1996, Congress passed the Senator Exon's Communications Decency Act (CDA) as a part of the Telecommunications Act of 1996. On February 8, 1996, the ACLU filed suit in the Eastern District of Pennsylvania to challenge the constitutionality of the CDA. A second action was filed on February 26, 1996, by a coalition led by the American Library Association, likewise challenging the CDA. These two cases have been consolidated.

Section 561 of the Telecommunications Act which provides for expedited judicial review of constitutional challenges to provisions of the Telecommunications Act. Pursuant to this provision, plaintiffs first moved for a temporary restraining order which would prohibit enforcement of the CDA until the Court had the opportunity to review the CDA during a full trial. The TRO was reviewed by U.S. District Judge Ronald Buckwalter of the Eastern District of Pennsylvania, who granted a partial temporary restraining order, enjoining enforcement of only a portion of the Communications Decency Act, § 223(a)(1)(B). The provision enjoined concerns indecency transmitted over "telecomm unication devices" other than "interact ive computer networks" (using these terms as defined by Congress, the Internet is composed of both "telecommunication devices" and "interactive computer networks"; the distinction which Congress seeks to make between the two is, at times, strained in both the CDA and the Conference Report). SeeACLU Press Release (February 15, 1996).

Plaintiffs also challenged the Constitutionality of the Hyde Amendment to the Telecommunications Act, which amended § 1462. According to 18 U.S.C. § 1462(c) as amended, it would be illegal to transmit any material over online communications concerning abortion. See Congressional Record (comments by Representative Hyde on restriction of abortion communications). On February 9, 1996, Attorney General Janet Reno informed Vice President Gore that Rep. Hyde's amendment to § 1462 is an unconstitutional violation of the First Amendment; the Department of Justice will not defend the constitutionality of the amendment. See Letter From Attorney General Janet Reno to V.P. Gore (February 9, 1996); ACLU Press Release (February 15, 1996).

Subsequent to Judge Buckwalter's decision on the TRO and pursuant to the expedited review provisions of the Telecommunications Act of 1996, the case then moved to a three judge panel (Judge Stewart Dalzell; Judge Ronald Buckwalter; Chief Judge Dolores Sloviter) to consider Plaintiffs' request for a permanent injunction of the CDA. The panel started hearings March 21, 1996, and these hearings are continuing. Plaintiffs completed their primary cases on April 1. The United States started its defense on April 12, 1996.

Plaintiffs case in chief included testimony from the following individuals: Ann Duvall, President of Surfwatch Software Inc; Dr. Albert Vezza, Associate Director of the Massachusetts Institute of technology's Labratory for Computer Science, responsible for the PICS project; Bill Burrington, Director of Public Policy for America Online; Andrew Anker, CEO of HotWired Ventures Ltd.; Barry Steinhardt, Associate Director, National ACLU; Howard Rheingold, Author; Stephen Donaldson, President of Stop Prisoner Rape; Prof. Donna Hoffman, Vanderbilt University; Robert Croneberger, Director of the Carnegie Library of Pittsburgh; Scott Bradner, IETF; Patricia Warren, author; and Kiyoshi Kuromiya, Director of the Critical Path AIDS Project

Government witnesses included Dr. Dan R. Olsen Jr., Ph.D., professor of computer science at Brigham Young University, and Special Agent Howard A. Schmidt, US Air Force Office of Special Investigation.

Closing arguments took place May 10, 1996 in Philadelphia (Shea v. Reno, the New York case challenging the constitutionality of the CDA is set for final arguments on June 3). Each side had approximately two hours to make their final arguments and answer the questions of the three judge panel. (For a good account of the closing argument, see Craig Johnson, As Good a Bench As We Can Hope For, The American Reporter (May 11, 1996)). The panel of three judges indicated that a decision on the Constitutionality of the Communications Decency Act would issue a its decision "in due course."

On June 11, 1996, the Philadelphia Court found that the CDA was unconstitutional. SeeCommunication s Decency Act Declared Unconstitutional, FCBA News (September 1996) for a summary of the Court's decision.

Pursuant to the Telecommunications Act of 1996, this decision may be directly appealed to the Supreme Court of the United States.

• Unconstitutional: Communications Decency Act, OnTheInternet (September/October 1997) (Supreme Court Decision).
• Communications Decency Act Declared Unconstitutional, FCBA News (September 1996) (District Court Decision).

• DO J Brief.
• ACLU Litigation Documents
• Trial Transcripts available on EPIC page
• ACLU et al. v. Reno complaint
• ACLU Brief Philly Case
• EFF CDA Litigation Document Archive
• Annoy.Com's Challenge to the "annoy" provisions of the CDA :: See Annoy

Documents and Articles

• USGov
  • FCC Announcement of Schedule for Notice of Inquiry for promulgation of rules implementing 42 U.S.C. &sec; 223 as amended (Communications Decency Act).
  • FNC Resolution June 1995
    • Because the Internet interconnects users and information resources in local, state, and national jurisdictions, it is inevitable that the federal government will become involved in issues of network use and information content. A recent example of an issue before the federal government is the "Exon Amendment" to the telecommunications legislation passed recently by the U.S. Senate (S.652) which seeks to prohibit the use of telecommunications devices (including networks) for obscene communications unwelcome by a recipient or involving minors. The Federal Networking Council Advisory Committee believes that societal goals in research, education, and lifelong learning will be best served by an information infrastructure that encourages the publication of a wide variety of viewpoints and creative works, while empowering users to determine the kinds of information that is accessible at their access points to themselves and their children. The Federal Networking Council Advisory Committee wishes to point out that technical means may be used to restrict access to unsuitable materials. Such technical solutions may obviate the need for new legislation regarding content. . . . The FNCAC recognizes the seriousness of the concerns which the Exon Amendment is seeking to address. We encourage the federal government to explore technical means which allow parents, teachers and librarians to control and facilitate access by children to information which is determined by those responsible adults to be appropriate, and we encourage the federal government to enforce existing laws regarding the dissemination of obscene information and other illegal acts covered by those existing laws.
• General
• Jame s T. Bruce and Richard T. Pfohl, Analysis: S. 314, The Communications Decency Act of 1995: Introduced by Sen. Jim Exon (D-NE) (February 7, 1995)
• CATO Institute: Robert-Corn-Revere, New Age Comstockery: Exon vs the Internet, Policy Analysis No. 232 (June 28, 1995); Beyond the Communications Decency Act: Constitutional Lessons of the Internet (November 1996)
• Interactive Working Group Report to Senator Leahy, Parental Empowerment, Child Protection, & Free Speech in Interactive Media (July 24, 1995)
• Rimm Study
• Ned Brainard, Journoporn Special Report: The Philip Emer-Dewitt Award for Bad Internet Journalism, Hotwired (1995)
• Philip Elmer-Dewitt, Fire Storm on the Computer Nets, Time (July 24, 1995)
• Donna L. Hoffman & Thomas P. Novak, A Detailed Analysis of the Conceptual, Logical, and Methodological Flaws in the Article: "Marketing Pornography on the Information Superhighway" (version 1.01 July 2, 1995)
• Brock Meeks, Journoporn Special Report: Muckracker, Hotwired (1995)
• David Post, Preliminary Discussion of Methodological Peculiarities in the Rimm Study of Pornography on the 'Information Superhighway' (June 28, 1995)
• Brian Reid, Ph.D., Digital Equipment Corporation, Critique of the Rimm Study (July 6, 1995) ("In summary, I do not consider Rimm's analysis to have enough technical rigor to be worthy of publication in a scholarly journal").
• Journoporn Special Report, Hotwired (1995) (archive of online discussion critiquing Rimm Study).
• Journoporn Special Report:Hotwired Interviews DeWitt, Hotwired (July 2, 1995) (giving background on developement of Time report on Rimm Study)
• Opposition
• Gingrich Says CDA is a "clear violation of free speech rights" Center for Democracy and Technology.
• Conference
• Cate Corcoran, From DC to Cyberspace , Hotwired (1995)
• Geeks Take to the Street , Hotwired (1995)
• Brock Meeks, Jacking in from the "Sticking It to the Net" Port, Hotwired (1995)
• Congress man Rick White, Background on the White Internet Compromise, (1995)

Testimony

• Openin g Statement of Sen. Herb Kohl , Hearing Before the Judiciary Committee On "Cyberporn", June 24, 1995 reprinted at Center for Democracy and Technology WWWW Page
• Writte n Statement of William W. Burrington, Assistant General Counsel and Director of Government Affiars, America Online, Inc., and Chairman of the Online Policy Committee, Interactive Services Association, Hearings on S. 892 and Indecency on the Internet Before the Senate Committee on the Judiciary, 104th Cong., 1st Sess. (July 24, 1995)
• Statement of U.S. Senator Russ Feingold, Judiciary Committee Hearing on Cyberporn and Children: the Scope of the Problem, the State of the Technology and the Need for Congressional Action, July 24, 1995

Other Sources

• Transcri pt of MacNeil/Lehrer Debate, CDT Executive Director Jerry Berman v. Exon (June 22, 1995)

• June 26, 1997: Supreme Court hands down decision declaring CDA unconstitutional.
• March 19, 1997 - 10:00 am: Oral argument.
• March 7, 1997: Department of Justice Reply due.
• February 20, 1997: Briefs due from challengers.
• January 21, 1997: Department of Justice and Supporters of CDA file Briefs. DO J Brief.
• December 6, 1996: Supreme Court sets schedule for oral argument.
• October 31, 1996: Challengers move for summary affirmance of Philadelphia decision.
• September 29, 1996: DOJ Appeal filed.
• July 29, 1996: Shea v. Reno: Second Circuit Declares CDA unconstitutional in separate proceeding. See Second Federal Panel Declares C.D.A. Unconstitutional, Cybertimes (July 30, 1996)
• June 11, 1996: Philly Court declares CDA unconstitutional.
• May 10, 1996: Final Arguments
• April 26, 1996: Plaintiffs scheduled to present rebuttle witnesses.
• April 12 & 15, 1996: Government scheduled to present witnesses.
• April 10, 1996: ACLU's motion to supress sexual images from the internet denied.
• March 21, 22 and April 1, 1996: Plaintiffs presented witnesses.
• February 26, 1996: A coalition files suit to challenge the CDA. Coalition includes the American Library Association, Compuserv, Microsft, Apple Compuer, Citizens Internet Empowerment Coalition, America Online, and the Center for Democracy and Technology.
• February 9, 1996, Attorney General Janet Reno informed Vice President Gore that Rep. Hyde's amendment to § 1462 is an unconstitutional violation of the First Amendment
• February 8, 1996: ACLU filed suit to challenge the CDA
• February 1, 1996: United States Congress passes the Telecommunications Act of 1996
• December 1995: White Compromise passed and gutted in a blink of a conference committee eye.
• October 1995: Members of Conference Committee named.
• August 4, 1995: House passes the House version of the Telecommunications Bill.
• August 4, 1995: House votes to add the Cox/Wyden Amendment to the House version of the Telecommunications Bill.
• July 26, 1995: Congressional Hearings on pornography on the Internet.
• June 1995: Time Magazine published the Rimm Study.
• June 30, 1995: Represenatives Cox and Wyden introduce the Family Empowerment Act in the House of Representatives.
• June 20, 1995: Speaker Gingrich goes on the record in opposition to the CDA.
• June 15, 1995: Senate passes the Senate version of the telecommunications bill. June 14, 1995: Senate Amends the Senate version of the telecommunications bill to include the Communications Decency Act.
• June 9, 1995: Senator Exon introduces a revised Communications Decency Act.
• February 1, 1995: Senator Exon introduced the Communications Decency Act on the floor of the Senate.

Links

• ACLU ;
• EPIC;
• CIEC;
• Voter's Telecommunications Watch;
• EFF ;
• Cybertimes CDA Homepage ;
• CPSR ;
• Family Research Council ;
• The Ethical Spectical ;
• The Benton Foundation ;
• The Telecommunications Act of 1996 Protest Page ;
• Washington Post Special Report

Other CDA Litigations

• Nitke v. Ashcroft Challenging constitutionality of "obscenity."
  • Decision in Nitke Case Leaves Web Publishers at Risk, EFF 7/29/2005
  • Court Upholds Internet Obscenity Ban, Information Week 7/29/2005
• National Coalition for Sexual Freedom information.
• EFF Archive
• Seth Finklestein Blog