Justice Harlan once said that "the subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." The Supreme Court has struggled mightily over the years to define "obscenity" which is unprotected by the First Amendment ( First Amendment Center Homepage www.fac.org). This paper will examine the evolution of obscenity through landmark Supreme Court decisions. It will examine the Communications Decency Act and the case of Reno v. ACLU (117 S. CT. 2329, 1997 WL 348012 1997) which declared the Communications Decency Act unconstitutional.

Before 1868 few people tied to even define obscenity. Its meaning was entirely discretionary among law enforcement officials. In 1868 a British case, Regina v. Hicklin (Van Alstyne p. 760) was the first case which tried to define obscenity. The Hicklin test was the "most-vulnerable member of the community test." In this test, obscenity was to be measured by the effects on the most susceptible of people.

As one can see, this test would not work who is the judge to decide who is susceptible? Surely children are, but the same can be said for various adults. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedom of speech and the press (Roth v. US).

In Roth v. United States (354 US 476 1957 Van Alstyne p. 763) the constitutionality of a criminal obscenity statute was at question. The primary constitutional question was whether the federal obscenity statute violated the provision of the First Amendment that "Congress shall make no law abridging the freedom of speech or of the press."

This case opinion by Justice Brennan emphasized that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance (Roth v. U.S. van Alstyne p. 764)." The Court ruled in Chaplinksy v. New Hampshire (315 US 568, 571-572 Van Alstyne p. 765) :
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

The case of Roth v. U.S. held that obscenity is not within the area of constitutionally protected speech or press. This case defined obscene material as material which deals with sex in matter appealing to prurient interest.

In Chief Justice Warren's concurrence he says "the fine line dividing the salacious or pornographic from literature or science is not straight or unwavering. Present law depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it is reached (Roth v. U.S. Van Alstyne p. 768)." This is interesting because a later case explores the question of "community standards", because a wholly different result might be reached in a different setting.

In Harlan's dissent, he says "in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nationwide federal censorship, and in view of the fact that constitutionality of this conviction must be weighed against the1st Amendment (Roth v. U.S. Van Alstyne p. 774)." In Douglas and Black dissent they say " We do not think we can approve that standard (of the Roth v. U.S. case) and be faithful to the command of the First Amendment." They ask "What is the constitutional test of obscenity? (Roth v. U.S. van Alstyne p. 775)"

Douglas and Black say that the constitutional test the Supreme Court endorses under Roth v. U.S. gives the censor free range over a vast domain. They say "to allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the 1st Amendment. We examine these dissents because their arguments are the basis for future majority opinions.

Douglas and Black go on to say the standard of what offends "the common conscience of the commune" conflicts with the command of the 1st Amendment. "Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved." The Justices Douglas and Black make a good point of saying "For the test that suppresses a cheap tract today can suppress a literary gem tomorrow"—the test of prurient interest is just too broad (Roth v. U.S, Van Alstyne p. 776).

In Memoirs v. Attorney General of Massachusetts, the book "Memoirs of a Woman of Pleasure (Fanny Hill)" written by John Clelend in 1750 was adjudged obscene. The Supreme Judicial Court defined obscene in the elements developed from Roth—it must be established (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters and ( c )the material is utterly without redeeming social value.

The Supreme Court reversed this decision on the finding that even though the book is found to possess the prurient appeal, it still possesses social value. "All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by pandered cannot alter the fact…that the book will have redeeming social importance in the hands of those who publish or distribute it one the basis of that value (Memoirs v. Attorney General of Massachusetts, Van Alstyne p. 785)"

The Court moved in its judgment in Roth v. U.S. where obscenity is unprotected because it is utterly worthless to Fanny Hill where obscenity is unprotected IF it is utterly worthless.

In Justice Douglas's concurrence in Fanny Hill, he says "Perhaps the most frequently assigned justification for censorship is the belief that erotica produce antisocial sexual conduct (Memoirs v. Attorney General of Massachusetts Van Alstyne p. 786). But that relationship has yet to be proven…one might guess that literature of the most pornographic sort would in many cases, provide a substitute for antisocial sexual conduct" We do not know how plausible this argument is, but it is a good point to consider nonetheless. Douglas says "As I read the 1st Amendment judges can not gear the literary diet of an entire nation to whatever tepid stuff is incapable (Van Alstyne p. 786)."

Justice Clark's dissent in Memoirs v. Attorney General of Massachusetts the "Fanny Hill" book repeated and unrelieved appeals to the prurient interest of the average person leaves it utterly without redeeming social importance (Van Alstyne p. 786). He goes on to say that "psychological and physiological studies clearly indicates that many persons become sexually aroused from reading obscene material. While erotic stimulation caused by pornography maybe legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself a criminal sexual behavior or other antisocial conduct (Van Alstyne p. 787).

A number of sociologist think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community. It is these types of views which led to the Communications Decency Act of 1996. There is a question of producing this material, but what about the right to receive it?

In the case of Stanley v. Georgia ( 394 US 557 1969) we move from the question of obscene material to being prosecuted for its possession. Stanley was charged with possession of obscene material. He argued that the Georgia obscenity statute violates the 1st Amendment. The Supreme Court agreed that the mere private possession of obscene matter can not constitutionally be made a crime.

The Court agreed that Roth v. U.S. showed obscenity is not protected by the 1stAmendment. Stanley v. Georgia establishes precedent because Roth v. U.S and the cases following it were interested in the regulation of commercial distribution of obscene material. This case, Stanley v. Georgia is different because it involves mere possession of such material.

The reason set forth by Justice Marshall provide much basis for what we will see play out in opposition to the Communications Decency Act. Marshall says Stanley was "asserting the right to read or observe what he please- the right to satisfy his intellectual and emotional needs in the privacy of his own home. If the 1st Amendment means anything, it means that a state has no business telling a man, sitting alone in his own home, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds (Van Alstyne p. 803)."

Georgia's rationale was that they were trying to protect the individuals mind from obscenity, but to some that goal is inconsistent with the philosophy of the 1stAmendment. Marshall brings up a good point that if the State is only concerned about printed or filmed materials inducing antisocial conduct, the Court believes that in the context of private consumption of ideas and information we should adhere to the view that "among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law"-Whitney v. California (274 US 357,378 (1927) Brandeis concurring).. Given the present state of knowledge, the "State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits (Stanley v. Georgia Van Alstyne p. 806)."

In Roth v. U.S. the case dealt with public distribution of obscene materials and such distribution is subject to different obligations. No such dangers were present in this case. The First Amendment is not merely there for social good communication—it is there to protect individual autonomy rights as well.

In Miller v. California (413 US 15 1973 Van Alstyne p. 806), Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochure complained to the police. The Supreme Court recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or exposure to juveniles.

In Justice Burger's opinion in Miller v. California , the Court decided it must define the standards which must be used to identify obscene material. The Court modified the test for obscenity established in Roth v. U.S. and Memoirs v. Attorney General of Massachusetts, holding that the basic guidelines for the trier of facts must be (a) whether, "the average person, applying contemporary community standards" would find that the work, taken as whole, appeals to the prurient interest (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law and ( c ) whether the work, taken as whole lacks serious literary, artistic, political or scientific value (Miller v. California Van Alstyne p. 809).

The Court rejected the "utterly without redeeming social value" test of the Memoirs v. Attorney General of Massachusetts decision. The Court said for the first time since Roth v. U.S. in 1957, a majority of the Court has agreed on concrete guidelines to isolate "hard core" pornography from expression by the First Amendment. There is a question of establishing a "national standard" but "it is neither realistic nor constitutionally sound to read the 1st Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York (Miller v. California Van Alstyne p. 811). This question will be pivotal when we examine the Internet which breaks all of these boundaries.

The concept of indecency is a special term that has been regulated only in two special areas of federal jurisdiction-broadcasting and dial-a-porn services both currently under the jurisdiction of the Federal Communications Commission. In those contexts, "indecency" normally means "patently offensive "sexual content or profane language."

The concept of indecency was first legitimized in a case called FCC v. Pacifica Foundation (438 US 726 1978). During a mid afternoon weekly broadcast, a NY radio station aired George Carlin's monologue "Filthy Words" Carlin spoke of the words that could not be said on the public airwaves. His list included "shit, piss, fuck, cunt, cocksucker, motherfucker and tits" The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he heard the broadcast while driving with his son.

The Court held that the words need not be obscene to warrant sanctions. Audience, medium, time of day and method of transmission are relevant factors in determining whether to invoke sanctions. The Supreme Court held that the government's interest in the "well being of its youth justified special treatment of indecent broadcasting received by adults as well as its children (FCC v. Pacifica Foundation 438 US 726 1978). The Court went on to explain in its opinion "of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specialty treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcast's extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcast, moreover is uniquely accessible to children." We will see that one of the main purposes of the Communications Decency Act of 1996 was to treat the Internet as a broadcast medium, and this shall be debated.

Although Justice Steven's upheld the FCC's right to regulate "indecency" because television and radio are "pervasive" and easily accessible to children, the pervasiveness/children rationale has long been assailed by constitutional scholars (Goodwin 1996). These people do not believe that adults should be allowed only to access information appropriate for children.

In New York v. Ferber (458 US 747 1982) a New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. The Constitutional question was, does this law violate the First and Fourteenth Amendments?

The Court decided that their examination of the statute specifically targeted against child porn, it found that the state's interest in preventing sexual exploitation of minors was a compelling government objective of surpassing importance (458 US 747 1982)." The law was drawn to protect children from the mental, physical and sexual abuse associated with pornography while not violating the First Amendment.

Justice White said in his opinion, "It is evident beyond the need for elaboration that a state's interest in safeguarding the physical and psychological well being of a minor is compelling (Globe Newspaper Co. Superior CT. 457 US 596,607 (1992)). He said, "A democratic society rests, for its continuance upon the healthy well-rounded growth of young people into full maturity as citizens (Prince v. Mars 321 US 158, 168 (1944))." Under New York v. Ferber, the distribution of photos and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent records of the child's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled (New York v. Ferber, Van Alstyne p. 820).

The concurring opinion of Justice O' Connor show that it is possible that the New York statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. Ex-clinical pictures of adolescent sexuality, such as those that might appear in medical textbooks, might not involve the type of sexual exploitation and abuse targeted by the New York statute (New York v. Ferber Van Alstyne p. 824).

It is because of this balancing act of one's individuals right to receive such material v. the compelling interest to protect the future of our nation which has led to the battle of the Communications Decency Act of 1996. Congress recognized the availability of sexual explicit material on the Internet, and immediately rushed to create a ‘minute bill' which would solve the issue. In other words, it is apparent by the Congressional proceedings prior to the Communications Decency Act that it was a quick fix for a complex problem. The Communications Decency Act of 1996 (CDA) was a provision of the Telecommunications Act of 1996. It restricted certain types of communication on the Internet. More specifically, the CDA, "made illegal any transmission which was obscene or indecent and where the sender knew that the recipient was under 18 years of age" (Sobel, 1). The Telecommunications Act passed expediently through the House of Representatives and the Senate. On February 8, 1996 President Clinton signed the statute. On that same day, the American Civil Liberties Union (ACLU) filed a motion for a temporary restraining order to prohibit the enforcement of the CDA. The ACLU was joined by nineteen other parties such as: Human Rights Watch, Electronic Privacy Information Center, and AIDS Education Global Information System. Soon after that, the American Liberty Association (ALA) along with several other parties such as: America On-line Inc., American Booksellers Association For Free Expression, and Netcon On-Line Communication Services Inc., filed a similar motion. Numerous other groups filed amicus curie briefs with the Court to announce their opinions on the CDA. The two actions one by the ACLU and another by the ALA] were combined and the case was taken to District Court.

A panel consisting of three judges in the District Court for the Eastern District of Pennsylvania heard the case ACLU v. Reno (117 U.S. 2329; 1997). There were two provisions of the Communications Decency Act [Section 223 (a)(1) and Section 223(d)] that were in question. Their purpose was, "to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in ‘cyberspace' and to access vast amounts of information from around the world" (117 U.S. 2329, 1). Section 223 (a)(1)(B)(ii) of the Act, "criminalizes the ‘knowing' transmission of ‘obscene or indecent' messages to any recipient under 18 years of age" (117 U.S. 2329, 1). Section 223 (d), "prohibits the ‘knowing' sending or displaying to a person under 18 of any message that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" (117 U.S. 2329, 1). Section 223 (e)(5)(A) provided defenses for those who take actions to prohibit access by minors to the restricted communications. After a great deal of fact-finding, the three judge panel ordered an injunction against the enforcement of both the challenged provisions. The Court held that, "the CDA's ‘indecent transmission' and ‘patently offensive display' provisions abridge ‘the freedom of speech' protected by the First Amendment" (117 U.S. 2329, 2).

The government relied on precedent to prove the constitutionality of the CDA, however when examined in depth, the precedents were not found to uphold the constitutionality of the Act. The District Court explained that the Communications Decency Act was a content based restriction and not a restriction on time, place, and manner. They found that the CDA was problematic for numerous First Amendment purposes. One of the main reasons was the fact that the words ‘indecent' and ‘patently offensive' were not defined. The Court determined that the undefined words would create uncertainty. They said that, "the vagueness of such a content based regulation coupled with its increased deterrent effect as a criminal statute, raise special First Amendment concerns because of its obvious chilling effect on free speech" (117 U.S. 2329, 5). According to the Court, the CDA lacked the accuracy that is required by the First Amendment when a statute regulates the content of speech. Although it is true that government is trying to protect children from harmful material, the CDA does so by, "suppressing a large amount of speech that adults have a constitutional right to send and receive" (117 U.S. 2329, 6). This is a violation of adults' First Amendment rights. The District Court proceeded to explain that the defenses in Section 223 (e)(5) were not ‘narrowly tailored' and therefore unconstitutional.

The decision in the District Court was unanimous, however each of the three judges wrote separate opinions. Chief Judge Slovite said that, "the Statue sweeps more broadly than necessary and thereby chills the expression of adults and that the terms ‘patently offensive' and indecent' were inherently vague" (117 U.S. 2329, 31). She then went on to explain that the defenses in Section 223 (e)(5) were not feasible. Judge Buckwater concluded that, "the word ‘indecent' in Section 223 (a)(1)(B) and the terms ‘patently offensive' and ‘in context' in Section 223(d)(1) were so vague that criminal enforcement of either section would violate the 'fundamental constitutional principle' of ‘simple fairness'" (117 U.S. 2329, 33). He believed that the uniqueness of the Internet itself disrupted the vagueness of the CDA. The last judge, Judge Dalzell, was clearly convinced that, "the First Amendment denies Congress the power to regulate the content of protected speech on the Internet" (117 U.S. 2329, 33). His opinion included a lengthy explanation of why he believed the statute would abridge the freedom of speech.

The government appealed to the United States Supreme Court and the opinion of the Court was delivered by Justice Stevens on June 26, 1997. The Supreme Court affirmed the decision of the U.S. District Court for the Eastern District of Pennsylvania. They were "persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech" (117 U.S. 2329, 6). They explained that they can't, "reduce the adult population to only what is fit for children" (117 U.S. 2329, 53). The Supreme Court agreed with the findings of the District Court and went through, at length, the government's arguments and rebutted them. Justice Stevens concluded by saying, "We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of ‘narrow tailoring' that will save an otherwise patently invalid constitutional provision" (117 U.S. 2329, 67).

Justices Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer concurred with the decision and Justice O'Connor, with whom Chief Justice Rehnquist concurred, concurred in part and dissented in part. The dissenters were concerned about the exchange of information between adults and minors. They discuss the fact that cities have a compelling interest to keep children out of "pornographic zones" and they focus on the "knowingly" language of the statute. O'Connor explains in depth that, "Because the rights of adults are infringed only by the ‘display provision' and by the ‘indecency transmission' and ‘specific person' provisions as applied to communications involving more than one adult [She] would invalidate the CDA only to that extent. Insofar as the ‘indecency transmission' and ‘specific person' provisions prohibit the use of indecent speech in communications between an adult and one or more minors, they can and should be sustained" (117 U.S. 2329, 91). In this aspect, Justice O'Connor's opinion differed from the rest of the Court.

In order to evaluate the Reno v. ACLU decision it is necessary to examine the precedents and historic rulings of First Amendment rights that are applicable to the issues presented in this case. First, in considering legislation abridging the freedom of speech, the Supreme Court has always followed the "forum based" approach. This approach assesses restrictions the government seeks to place on the use of its property. In the U.S. Supreme Court case of International Krishna Society Consciousness v. Lee (505 U.S. 672, 676). The Court defines three separate forums for expressive activity, all subject to different levels of speech scrutiny. In his majority opinion, Chief Justice Rehnquist's differentiated between the "traditional public forums" and "designated public forums" as the two forums of speech subject to the highest level of scrutiny. All remaining public property, which is regulated by a much more limited review, would be decided upon whether "the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view"(112 U.S. 2701, 681).

In discussing a constitutional way to amend the CDA it is also important to examine the history of the Internet and decide what type of forum it is and to what extent the speech may be regulated. In Reno v ACLU the U.S. Supreme Court recognized the history of the Internet as a tool of communication for the military, which would provide an extensive communication device. This device would work in whole even if parts had been destroyed in a battle. However, the Court recognizes that the purpose and design of the Internet has changed and now is a "number of civilian networks that eventually link with each other, now enable tens of million of people to communicate with one another and to access vast amounts of information from around the world. The Internet is a unique and wholly new medium of worldwide communication"(117 U.S. 2701, 12). According to this definition, the argument stands that the Internet is a unique medium and a designated forum-- "that the state has opened for expressive activity by part or all of the public"(117 U.S. 2701, 13). Therefore while reviewing the CDA it is important to remember that any regulation on the Internet will be subject to the highest scrutiny; however, that is not to say that all regulations on the Internet will be found unconstitutional. For instance in Denver Area Educational Telecommunications Consortium v. FCC, (518 U.S. 2374, 6 1997 Supplement.) the Court established the precedent that allowing a constitutional regulation under the highest scrutiny test if it was serving a compelling state interested and constructed in a way which was narrowly tailored.

Indisputably, the Supreme Court agreed that the Communications Decency Act was facilitating a compelling state interest. In Justice Steven's opinion he states that "there is a compelling interest in protecting the physical and psychological well-being of minors" (117 U.S. 2329, 4). In addition there is no dispute that there are some materials that are harmful to minors, which may not be harmful to adults. Pornography is an example of a material that may bring about harm to children by making them more apt to be a victim of sexual exploitation.

So why if the Court recognized a legitimate state interest was the CDA deemed unconstitutional? The answer to this question is because Congress failed in creating a Communications Decency Act that was narrowly tailored. The Supreme Court ruled unanimously that the Communications Decency Act violated the First Amendment; writing for the Court, Justice Stevens held that the "CDA places an unacceptably heavy burden on protected speech" and found that all provisions of the CDA are unconstitutional as they apply to indecent and patently offensive. This theme is repeated in the Supreme Court's decision that compares the CDA to other statutes that were adjudicated upon in the Supreme Court and found constitutional.

Stevens first uses the precedent set in Miller v. California (413 U.S. 15, 57) to discuss the official definition of obscenity. It was in this case that the Supreme Court developed the three part test which stated that material could be obscene only if
"(a) the average person, applying contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest; and (b) the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law and (c) the work taken as a whole, lacks serious literary, artistic, political or scientific value."
Burger went on to say that under this test "no one will be subject to prosecution for the sale or exposure of obscene materials unless those materials depict or describe patently offensive "hard core" sexual conduct. Because Congress failed to incorporate all three parts of the Miller test, the Supreme Court found the CDA to be vague: "The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those three prongs ...critically limits the uncertain sweep of the obscenity definition (117 U.S. 2329, 51). Whereas incorporation of the three part test would have given more specific provisions to Internet users. The global community created by the Internet it is extremely difficult to define obscenity based on "contemporary community standards." This is due to the fact that the Internet allows dissemination of material to a diverse audience; for example, something which is not obscene based on the "contemporary community standards" in New York City may be accessed as obscene in Nebraska under their own "contemporary community standards." Therefore while incorporating the second and third test into the CDA would provide clarification about the definition of obscenity; however, the first part of the Miller test is inapplicable to the Internet. Thus, it is difficult to determine what mode of communication the Internet is due to the fact that Miller is bounded by geography but the Internet defies such conventional parameters.

The Supreme Court also referred to the precedent set in Ginsberg v. New York(390 U.S. 629). In this case the Supreme Court upheld the constitutionality of a New York statute that prohibited selling material considered obscene to minors under 17 years of age, even if the material was not illegal for adults to view. The Court relied on the state's interest in the well-being of its youth and also on the consistent recognition of the principle that the parents have a constitutional claim to the authority to direct the rearing of their own children. This decision was based on the reasoning that if parents' so desire they can buy the magazine for their minor children. However, under the CDA neither the parent's consent--nor even their participation in the communication would avoid the criminal implication of the third person sending this material via the Internet. In other words, whether or not a child has his or her parents' consent to view the material it is still illegal for someone to knowingly send the material through the Internet. Second, in Ginsberg v. New York the Court found that the NY statute was only restricting commercial transactions of this material; whereas, the CDA is encompassing of that material which is free of charge to the general Internet viewers. Third, the NY statute required harmful material for minors to be "utterly without redeeming social importance for minors."

The Supreme Court followed the precedent established in FCC v. PacificaFoundation (438 U.S. 276) where it upheld the Federal Communications Commission's decision to limit (not ban) the availability of non-obscene "indecent" expression in broadcasting. In this case the Court defined indecent expression as that which "only reflects expression which in context, depicts or describes, in terms of patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (438 U.S. 726, 732). The Court realized in its decision in Pacifica that its broader definition of what is constitutionally protected for the broadcast media was intended strictly for broadcast. The reason for the broader interpretation was that "broadcasts extend into the privacy of the home and it is impossible to completely avoid those that are patently offensive" (ibid, 733) and that "broadcasting is uniquely accessible to children" (ibid, 737). When Congress similarly tried to place a ban on similarly defined indecent speech on the telephone dial-a-porn operations, the Court determined that such bans were unconstitutional because there were mechanisms capable of keeping access away from minors. Thus, allowing a complete ban on the dial-a-porn services would violate the precedent set in Butler v. Michigan (352 U.S. 380), which declared reducing available materials only to that which is fit to children as unconstitutional. The Court acknowledged the differences in Pacifica and Reno v ACLU as the following; first the CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet; second, unlike the CDA, the commission's declaratory order was not punitive; third, the commission's order applied to a medium which had received the most limited First Amendment protection, in large part because warnings could not adequately protect the listener from the unexpected program content. The Internet, the Court reasoned, has no comparable history. In addition, the District Court stated that the risk of encountering indecent material by accident on the Internet is remote because a series of affirmative steps is required to access the specific material. Lastly, the Court referred to the precedent set in the City of Renton v. Playtime Theatres, Inc., (75 U.S. 41) which upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. This ordinance, the Court stated, was aimed not at the content of the films shown in the theaters, but rather at the "secondary effects" such as crime and deteriorating property values--that these theaters fostered: "It is the secondary effect which these zoning ordinances attempt to avoid, not the dissemination of offensive speech" (ibid, 52). The government argued that like the zoning ordinances, the CDA, is attempting to "cyberzone" the Internet. However, the Supreme Court rejected this argument stating that the CDA applies too broadly to the entire universe of cyberspace. In addition, the Court stated, the primary purpose of the CDA is to protect children from the primary effects of indecent and patently offensive speech rather than any secondary effect of such speech. Thus, the Court found that the CDA places a content based blanket restriction on speech rather than a time place and manner restriction.

Seeing as how an act to protect children from pornography is a compelling state interest as expressed repeatedly from the Supreme Court, we argue that an act similar to the CDA is essential for the growing medium of the Internet. It is for this reason that we carefully examined the cases in which the Court did find it constitutional to restrict children's access to obscenity, so that we may amend the CDA to improve its constitutionality. We do not argue that all of these amendments are necessary to make a constitutional regulation of the material harmful to minors over the Internet; however, many of them are pertinent to a constitutional implementation on regulating the Internet:

Alternatives: Less Restrictive Means to Regulate that Material Harmful to Minors Disseminated on the Internet

Suggestions to create a more narrowly tailored definition of obscenity:

1. Limit the definition by including the other applicable part of the Miller three part test:
1. See if the predominant theme is prurient according to the sensibilities of an average person of the community [will need to adjust the "community standard" to one that is applicable to the global community of the Internet].
2. Whether the material taken as a whole lacks serious literary, artistic, political, or scientific value.

2. Limit the definition of "harmful to minors" as the Washington state did in their April 25, 1995 legislation on on-line materials,
1. That the average adult person, applying contemporary community standards, would find when considered as a whole, appeals to the prurient interest of the minor.
2. That explicitly depicts or describes, by prevailing standards in the adult community with respect to what is suitable for minors, patently offensive representations or descriptions of: (a) Ultimate sexual acts, normal or perverted, actual or stimulated; or (b) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, lewd exhibition of the genitals or genital area, sexually explicit conduct, sexual enticement, or sexually explicitly nudity; or (c) Sexual Acts that are violent or destructive; and
3. That, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value for minors. (Warren 3)

Possible suggestions to create a more narrowly tailored "knowingly" clause: The WA state law, above-mentioned, achieved this by making an exception for those persons who make a bona fide attempt to ascertain the true age of the minor by requiring the production of a government issued document for proof of the minor's age, before transmitting the material(Warren 4)

Another technological suggestion to increase the validity of the "knowingly" clause is to mandate that children with access to either the Internet or e-mail accounts to have user-ids or domain names, which would be indicative of the fact that they are minors. For example enforcing that all children have a prefix of kid before their log-on names would make it easier for prosecution of those who "knowingly transmit materials to minor" and there are therefore less chances to falsely prosecute on the First Amendment (Warren 5).

Allow servers, who are familiar with the unique medium of the Internet, to regulate the server's Newsgroups, Usenets, and Bulletin Boards. This will reduce the content- based regulation by allowing the official on the Internet to create this regulation. Accordingly criminal implications would be the penalty, when a server fails to block "material harmful to minors" from reaching a child through a Newsgroup, Usenet, or Bulletin Board will create a criminal charge against the server, rather than that individual who sent the material. This is extremely important for the above- mentioned communication tools on the Internet because they are the ones who "depend on offering adult content in order to break even financially"(Warren 1).

Suggest to protect intrusive material from entering the house unexpectedly: One can argue that similar to broadcast, a web site which directly opens to obscene picture "comes directly into the home the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds" (438 U.S. 726, 749) To prevent this obscene material from assaulting an uninviting individual, all web sites containing obscene material should have to open up to a page which does not contain the obscene material, and warn individuals on the content of the web site. This will not be a regulation on speech but rather a restriction on the time manner and place of speech, and therefore constitutional. This is important, because contradictory to the Supreme Court's belief that obscene sites are not found accidentally, when a child logs onto any of the following web sites they will (or at one point they would have) seen obscene pictures on the very first page: www.barney. com, www.whitehouse.com, or www.nasa.com.

Suggestions to eliminate sexually explicit advertisements from being sent to minor children:
According to the U.S. Supreme Court in Miller v California it is constitutional to prohibit "sexually explicit materials that have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials" (413 U.S. 15, 29). It is for that reason that a Special Agent from the Florida Department of Law Enforcement, who is a nine year veteran to topics relating to minors and the Internet, suggested that SPAM be limited on the Internet. In his November 7, 1997 testimony in front of the Senate Douglas Rehman stated that SPAM is "the electronic version of junk mail" (Rehman 17), and it is through this medium that children with their own e-mail accounts are receiving advertisements and direct links to those web sites which contain the sexually explicit material, the "materials harmful to minor". Seeing as how the Supreme Court has repeatedly protected us from this type of circular in our Postal service; it should also be protected on the comparable "electronic mail" in which there e-mail account subscriber's age is anonymous.

In addition to the many restrictions that the government can constitutionally place on the Internet, many private technical corporations, such as NetNanny, are offering technical alternatives. They are offering parents blocking, labeling, filtering and tracer devices so that government regulation will not be needed to regulate the Internet. Their argument is that this type of technology will alleviate the burden of regulating the Internet from the government and allow parents and the community to determine what their children should be viewing. These technological devices would be beneficial in addition to some government regulation, but cannot stand alone in this ever-expanding medium of communication. The technological alternatives to government regulation rely too heavily upon the parent and community's involvement in the child's communication while on-line; however, unfortunately most parents are not aware of what their child may be viewing while on-line, nor have the time, energy, or money to spend on this software.

While the government should not feel the burden of creating legislation that will exclude all "material that is harmful to minors;" it seems they would be more effective in creating smaller legislation dealing with more specified aspects of the Internet. The CDA was the first attempt to pass legislation on the Internet, and Congress evidently took on more than it could constitutionally handle. Since the CDA was struck down by the Supreme Court, there have been additional bills proposed in both the House and the Senate. One of these bill which received considerable attention at the termination of the 105th Congress is Senator Coats' (R, IN) proposal, S. 1482. His proposed bill prohibits "the business off commercial distribution of material that is harmful to minors." He proposes that the age of a minor, for the purpose of his legislation, is a person under 17 years of age. This was one suggestion mentioned in Reno v. ACLU; furthermore, S. 1482 explicitly lists a three part definition to the term of "material that is harmful to minors." His definition for these materials harmful to minors is:
"taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex or excretion; depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sex acts, or a lewd exhibition of the genitals; and lacks serious literary, artistic, political or scientific value"(Coats S.1482).
This bill will be discussed in Congress at the commencement of the second half of the 105th Congress. This bill is narrowly tailored in its definition of material harmful to minors, and restricts only advertisement, which has historically received less First Amendment protections than other forms of speech. It is for these two reasons that this bill warrants much consideration and attention when the next Congress convenes.

In conclusion, it is evident that some form of legislation will be necessary to tame the ‘Wild West' ways of the Internet. However, Congress' quick fix for this complex problem was inadequate and furthermore unconstitutional as decided in Reno v. ACLU. The safety of children on the Internet relies heavily on future legislation. Congress needs to reevaluate the issue and the Reno v. ACLU decision and construct narrowly tailored legislation that can begin to reduce the amount of ‘material harmful to minors' that is available to minors on the Internet.

Works Cited

Amercian Library Association Washington Office Newsline. "Communications Decency Successor Introduced." Volume 6, Number 102: November 20, 1997.

Bernstein, Solveig. Policy Analysis: Beyond the CDA: constitutional lessons of the Internet

Butler v. MI, 352 U.S. 380 (U.S. Supreme Court 1957)

Cannon, Robert, The Legislative History of Senator Exon's CDA: Regulationg Barbarian on the Information Superhighway. Indiana Law Journal (Last Modified July 1997).

Chaplinsky v. NH 315 U.S. 568 (U.S. Supreme Court)

City of Renton v. Playtime Theatres 475 U.S. 41 (1986)

FCC v. Pacifica, 470 U.S. 480 (U.S. Supreme Court 1985)

Ginsberg v. New York, 390 U.S. 629 (U.S. Supreme Court 1968)

Goodwin, Mike, Children Child Abuse andCyberporn: A Primer for Clear Tinkers. Internet World

Globe Newspaper Co. 457 U.S. 596 (U.S. Supreme Court 1982)

Memoirs v. Attorney General of MA 383 U.S. 413 (U.S. Supreme Court 1996)

Miller v. CA, 413 U.S. 15 (U.S. Supreme Court 1973)

Prince v. Mars 321 U.S. 158 (U.S. 1944)

Rehman, Douglas. "Hearing before H.O.R. Committee on the Judiciary Subcommittee on Crime." November 7, 1997.

Reno v. ACLU, 117 U.S. 2329. (U.S. Supreme Court 1997)

Roth v. U.S. 354 U.S. 476 (U.S. Supreme Court 1957)

Sobel, David. The Constitutionality of the CDA: Censorship on the Internet. University of Florida Law Review.

Stanley v. GA 394 U.S. 557 (U.S. Supreme Court 1969)

Van Alstyne. First Amendment. 2nd Ed. Westbury, New York: The Foundation Press, Inc, 1995.

Warren, Jim, Cybersex: Political Problems; Technological Solutions. Government Access (Last Modified July 1995)

Whitney v. CA 274 U.S. 357 (U.S. Supreme Court 1927)