Communications Decency Act Reference
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|Congressional||District Court||Supreme Court||Miscellaneous|
| The Legislative History of Senator
Exon's Communications Decency Act:
Regulating Barbarians on the
49 Federal Communications Law
Journal 51 (November 1996)
Decision | Copy |
|Content Restrictions For
Interactive Computer Services in
the Telecommunications Act of 1996
How CDA Would Have Worked
|Analysis of District
of the CDA
|Excerpts from Telecommunications Act
of 1996 (Communications Decency Act)
Excerpts from Conference Report
47 USC s 223 as Amendmend by
18 U.S.C. § 1462 As Amended
18 U.S.C. § 1465 As Amended
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.
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
- 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 .
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.