Whenever new technology is developed, new questions arise. When this new technology is related to the distribution of information, questions are raised as to its effect on the First Amendment. With the advent of the Internet, a new bunch of constitutional questions were created. Would the new medium be treated like radio, television or print? Perhaps some combination of the three? What about access to the Internet? Can it be regulated? In an effort to regulate the Internet, Congress passed the Communications Decency Act. This law resulted in a mass outcry and the resulting lawsuit marked the creation of new electronic jurisprudence. In this paper we will examine the Act, the reasons for it being passed, issues it raises, the decision in Reno v. ACLU and where this leaves the first amendment in Cyberspace.

One of the greatest developments in communications technology is the Internet. This electronic method of communication allows for virtually instant access to an almost unlimited amount of information. This medium has its roots in the military’s 1969 ARPANET, a defense computer network designed to remain functional even if parts of the network were destroyed or disable due to enemy fire. The Internet works through a series of computer networks linked to each other. A person can access files or communicate with another person anywhere else on the "networks of networks. By 1996 approximately 40 million people had used the Internet is some form of the other and their were 9,400,000 computer hubs in the overall network.

The most common forms of communication over the Internet are "e-mail", "chatrooms", "Listservs", "newsgroups" and the "World Wide Web". Email is like an electronic letter or note sent to an individual or group. Listservs build on this idea by forwarding mail sent to one address to a list of addresses on the Listservs’ mailing list. Newsgroups provide an electronic forum for discussion of a topic or series of points of view. One can post statements which then can be viewed by all who read that particular group. The World Wide Web is a system that allows people to access information stored on computers in the network. Most of this information is stored on "webpages" that can contain text, sound files, video files , or even interactive devises.

In 1994 Senator Jim Exon viewed a segment on NBC’s Dateline regarding use of the World Wide Web. This segment suggested that obtaining and publishing pornography was the major use of the Web and that this material was readily access able by minors. Senator Exon decided to change this and proposed the Communications Decency Act.

The Senate passed the CDA in July of 1995. As written the bill placed large fines and prison terms. This bill failed in the House, but was passed with the addition of the Cox-Wyden amendment. Representatives Chris Cox and Ron Wyden’s amendment limited the breadth of what was regulated by the government and removed some of the liability aspects of the original draft. The House passed the amended bill, however the wording was changed incorporating the Senate version, once again increasing the scope of the amendment. This bill was passed and went into effect February 1 as the Communications Decency Act of 1996.

As enacted on February 1, the CDA encompassed many aspects of the telecommunications industry; however, certain statutes delt explicitly with the Internet and what is and is not permitted. There were two provisions challenged in court, 223 (a) (1) and 223 (d). These sections criminalize the use of the Internet to transmit "obscene or indecent" information to any recipient who is under 18 years of age.

The main problem with this statute is the vague language what is "obscene or indecent" information. The Communications Decency Act is based on the idea of regulating obscenity. The court has examined a long parade of cases in this century in an attempt to nail-down a definition of obscenity. This series begins with Roth v. United States.

In 1957 the Court heard Roth v. United States and its companion case Alberts v. California. In both cases, the appellants were businessmen who sold adult material. They advertised their material through circulars and the mail Both were convicted for distributing obscene material, Roth under a federal law and Albert a state law. Both appellants claimed that their First (and in Albert’s case Fourteenth) were violated by these laws. The Court, citing Chaplinski, decided that obscenity was not protected speech under the First Amendment. Justice Brennan, author of the opinion in this case, made no effort to define obscenity stating only that it "appealed to the prurient interest." Contending that their was a category of speech that was unprotected and failing to give a satisfactory definition of what constituted it left the door open for more cases.

In Memoirs v. Massachusetts, the definition of obscenity was expanded. Massachusetts had a practice of putting books thought to be obscene on trial to determine whether they were. Memoirs of a Woman of Pleasure, a 1750 work was placed on the list for prosecution. At the trial, the book was determined to be obscene and without protection, despite evidence and testimony to the educational and literary value of the book. Brennan, again writing the opinion, fleshed out the Roth definition to be "(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." He then went on to say that all three elements must be considered independently for the speech to be obscene. The Memoirs test made it extremely difficult to get a work declared obscene because it was necessary for all three elements to be satisfied. This three pronged test also shifted the rational for the limitation of obscenity. Previously obscenity was not protected because it had no redeeming social value. Under Memoirs, for a work to be declared obscene it had to "be utterly without redeeming social value". This is a very hard distinction to make.

However, the Memoir test’s extremely limited definition did not last long. In 1973, the Court decided Miller v. California. Miller was selling adult material through the mail. His circulars contained descriptions and sample pictures of his merchandise. The court took this opportunity to overturn the Memoirs test and relax the standard by which obscenity is determined. The definition of obscenity became "(a) whether the average person applying contemporary community standards would find the work, when taken as a 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 a whole, lacks serious literary, artistic, political , or scientific value." The Court also said that the Memoirs standard of finding the work to be "utterly without redeeming social value" was much to stringent and rejects it in favor of the new test. Miller effectively opened the definition of obscenity further and removed the difficulty of declaring a work to be obscene present under Memoirs. This is the test that is used today.

The CDA is the Internet equivalent of these decisions. The two sections in question are firmly rooted in the idea of protecting children from obscenity. In his opinion in Paris Adult Theatre v. Slaton, Chief Justice Burger states "If we accept the unprovable assumption that a complete education requires the reading of certain books, and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?" This unproved assumption that obscenity and commercial trade in obscene material and performances will lead to the corruption of the public and the diminishing of the public order is the basis for the constitutional exemption of obscenity. The CDA was intended to protect children from this material and presumably the ill effect associated with it. The major down fall of this regulation is its uncertainties. Obscenity had been somewhat settled by the string of legislation, but what was the court to make of "indecency". In addition Section D mentions utilizing "contemporary community standards" to determine patently offensive material. The Internet is world wide with servers and users in virtually every community on the planet. Who’s community standards would be applied? Would the citizens of New York City be subject to Salt Lake City’s definition of patently offensive, or vice versa? What precedent could you cite to defend the sanctions on the new medium. In the trial, the United States chose to base its case on in Reno v. ACLU were Ginsberg v. New York, FCC v. Pacifica and Renton v. Playtime theaters.

In the 1968 case Ginsberg v. New York, the issue of shielding children from indecent material was raised. Ginsberg was charged with selling adult material to a 16 year-old boy. The New York ordinance of the day made it illegal to sell to anyone under 17 material that "depicts nudity...and which is harmful to minors" In this case the Court ruled against Ginsberg affirming his conviction. The holding emphasizes that the material in question was not obscene for adults and the appellant was not barred from selling his magazines to anyone 17 or older. Citing Roth v. United States, the Court maintained that New York was able to alter the definition of obscenity as it applied to minors and maintained that "the power of the state to control the conduct of children reaches beyond the scope of it’s authority with adults." The state’s responsibility to protect children from harm and safeguard their welfare superseded any claim of freedom of expression claimed by the appellant. However, the Ginsberg case did not affect adults access to the same material while limiting children’s.

In FCC v. Pacifica, the issue of regulation of the airwaves was addressed. The Pacifica Foundation ran a series of radio stations. They played George Carlin’s "filthy words" routine one afternoon over their stations. The routine utilized curse words in and out of context in a humorous monologue. A father driving his son in the car heard the broadcast and complained to the FCC. The FCC decided to regulate this material at times when children would be in the audience. In the decision, while the FCC was prevented from editing programs in advance, its ability to review the content of broadcasts was affirmed by the court. Of special interest to the Reno v. ACLU case, it was held that radio was the most limited for First Amendment protection because of its pervasivness within society and accessibility by children. This decision again deals with the ability of the government to limit access of children to certain material. While Carlin’s monologue was not obscene, it did contain profane language that the FCC was allowed to censor.

The third case cited, Renton v. Playtime Theatres, INC., was the most recent, decided in 1986. Renton, Washington had an ordnance banning adult theaters from locating within 1000 feet from any residential zone, church, park or school. The theaters brought suit claiming this infringed upon their First and Fourteenth Amendment rights. Again the court said their was a legitimate state interest in regulating the location and operation of adult theaters due to the residual effects that their existence causes a locale. The court held that the restrictions were only placed upon the time, place and manner of the speech, not on the content. Further the court held that this regulation was in place to maintain the community, and that the state had a right to do so. The court upheld this zoning order and reaffirmed the content-neutral, time place and manner restrictions on the speech in question.

On February 8, 1996, President Clinton signed the Telecommunications Act into law. This statute contains the Communications Decency Act (CDA), in which Section 223 (a) (1) "criminalizes the 'knowing' transmission of 'obscene or indecent' messages to any recipient under 18 years of age." Moreover, 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.'" Furthermore, affirmative defenses are "provided for those who take 'good faith,...effective...actions' to restrict access by minors to the prohibited communications," 223 (e) (5) (A), and "those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, 223 (e) (5) (B).

Shortly after the president signed the Telecommunications Act into law, 20 plaintiffs filed suit against Attorney General, Janet Reno and the Department of Justice challenging the constitutionality of the Communications Decency Act (CDA) 223 (a) (1) and 223 (d) portion(s) of the Telecommunications Act. These sections regard the "'knowing' transmission of 'obscene or indecent' messages to any recipient under 18 years of age" and 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.'"

One week later, District Judge Buckwalter for the Eastern District of Pennsylvania placed a temporary restraining order against the enforcement of 223 (a) (1) (B) (ii) as it applies to indecent communication after concluding that the term "indecent" was too vague as a basis for criminal prosecution. Following the placement of the restraining order, a second suit was filed by 27 additional plaintiffs. Thus, the two cases were consolidated and a three-judge District Court was brought together pursuant to 651 of the Act. After hearing the case, the judges unanimously entered a preliminary injunction against enforcement of both of the challenged provisions. Although though their judgment was unanimous, each of the three judges wrote a separate opinion.

In her opinion, Chief Judge Sloviter claims that even though she "doubted the strength of the government's interest in regulating 'the vast range of online material covered or potentially covered by the CDA,'" she agreed that the government's "interest was 'compelling' with respect to some of that material." However, she noted that "the statute 'sweeps more broadly than necessary and thereby chills the expression of adults and that the terms 'patently offensive' and 'indecent' were 'inherently vague.'" Sloviter also determined that the affirmative defenses were not "technologically or economically feasible for most providers,"...as well as rejected the government's suggestion that the "scope of the statute could be narrowed by construing it to apply only to commercial pornographers."

Besides Chief Judge Sloviter, Judge Buckwalter also concluded that "the word 'indecent' and the terms 'patently offensive' and 'in context in' were also vague." Because of this vagueness, he believes that "criminal enforcement of either section would violate the specific protections of the First and Fifth Amendments". Furthermore, Judge Buckwalter found "no statutory basis for the Government's argument that the challenged provisions would be applied only to 'pornographic' materials, noting that, unlike obscenity, 'indecency has not been defined to exclude works of serious literary, artistic, political or scientific value".

Lastly, Judge Dalzell's examination of "'the special attributes of the Internet communication' disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet." He maintains that the Decency Act would abridge "significant protected speech, particularly by noncommercial speakers, while 'perversely, commercial pornographers would remain relatively unaffected.'" Dalzell concludes that the Internet "as 'the most participatory form of mass speech yet developed,' is entitled to 'the highest protection from governmental intrusion'".

Consequently, the District Court "enjoins the Government from enforcing the prohibitions in 223 (a) (1) (B) as they relate to 'indecent' communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein." Also, the injunction against enforcement of 223 (d) (1) and (2) is "unqualified because those provisions contain no separate reference to obscenity or child pornography" (11). In response to this ruling, the Government appealed under the Act's special review provisions, which the United States Supreme Court noted probable jurisdiction. Thus, the U.S. Supreme Court reviewed Reno v. ACLU and heard oral arguments.

In its appeal, the Government claims that the District Court was incorrect in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. The Government maintains that the CDA is constitutional under three prior decisions: 1) Ginsberg v. New York, 390 U.S. 629 (1968); 2) FCC v. Pacifica Foundation, 438 U.S. 726 (1978); and 3) Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

By citing Ginberg, the Government is trying to make the case for the constitutionality of requiring commercial and noncommercial pornographers to utilize some means of verifying whether a person connecting to their machine or server is an adult by either requiring the use of a verified credit card or an adult identification number to ensure those who access their materials are indeed adults. The Court rejected the defendant's claim in Ginsberg that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor." In rejecting this theory, the Court relied on both the State's interest in the well-being of its youth and the principle that "the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."

The Supreme Court notes that the statute upheld in Ginsberg is narrower than the CDA in four important respects. First, in Ginsberg, "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Whereas, the CDA would prohibit the parent's consent of allowing their child to view pornographic materials from the Internet as well as the parent's participation in viewing the pornographic materials with their child.

Second, the New York statute in Ginsberg "applied only to commercial transactions, whereas the CDA contains no such limitation." For instance, in Ginsberg, the statute "prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene to adults." In contrast, the CDA puts limits on both commercial pornographers and anybody else who has indecent materials on the Internet that could be seen by minors. This is not the case in Ginsberg since it only applies to the selling of indecent magazines to minors commercially. In Ginsberg, adults may still buy "indecent" magazines in addition to give their child "indecent" magazines without being criminally held liable. As a result, under the CDA, adults are in effect censored by influencing them to not post anything "indecent" for fear that they might be put in jail because a minor might see it even though they did not sell their "indecent" materials to the minor or give the minor the "indecent" materials directly.

Third, the New York statute "cabined [sic] its definition of material that is harmful to minors with the requirement that it be 'utterly without redeeming social importance for minors.'" In contrast, the CDA does provide a definition of the term "indecent" and "omits any requirement that the 'patently offensive' material covered by 223 (d) lack serious literary, artistic, political, or scientific value. Finally, the New York statute "defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority".

The second case that the Government cites as making the CDA constitutional is FCC v. Pacifica Foundation. The Government points out that the Court disagreed with the respondent in Pacifica, who claimed that the "Filthy Words" monologue was "not 'indecent' within the meaning of the relevant statutes because it contained no prurient appeal." The Court rejected the respondent's arguments and the plurality stated that "the First Amendment does not prohibit all governmental regulation that depends on the content of speech." Furthermore, after relying on the premise that "broadcasting had received the most limited First Amendment protection," the Court concluded that "the ease with which children may obtain access to broadcasts, 'coupled with the concerns recognized in Ginsberg,' justified special treatment of indecent broadcasting."

By citing Pacifica, the Government was trying to say that Internet should receive similar First Amendment protections that broadcast has because the Government claims that children can access indecent materials over Internet with ease. Also, the Government was emphasizing that the "First Amendment does not prohibit all governmental regulation that depends on the content of speech." Thus, the Government was claiming that even though the CDA deals with the regulation that depends on content of speech, it is constitutional under Pacifica.

In addition to there being significant differences between Ginsberg and the CDA, there are also significant changes between Pacifica and the CDA. First, in Pacifica, the FCC, an agency that had been regulating radio stations for decades, "targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when--rather than whether--it would be permissible to air such a program in that particular medium." However, 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, in contrast to the CDA, the Commission's declaratory order "was not punitive; we expressly refused to decide whether the indecent broadcast 'would justify a criminal prosecution.'" Finally, the Commission's order "applied to a medium which as a matter of history had 'received the most limited First Amendment protection,'...because warnings could not adequately protect the listener from unexpected program content." Unlike broadcast, the Internet "has no comparable history." Moreover, the District Court found that the "risk of encountering indecent material by accident is remote because a serious of affirmative steps is required to access specific material".

The last case the Government cites as precedent making the CDA constitutional is Renton v. Playtime Theatres, Inc. In this case, the Court upheld a "zoning ordinance that kept adult movie theatres out of residential neighborhoods" since this ordinance was "not aimed 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 foster." In contrast, the 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".

Comparing the CDA to Renton, the Government claims that the CDA is constitutional because it "constitutes a sort of 'cyberzoning' on the Internet." Unfortunately, the CDA does not apply to one zone of the Internet. Instead, it "applies broadly to the entire universe of cyberspace." The CDA would make it illegal for adults to put out more than just pornography on the Internet that would be accessible to minors. For example, information and diagrams on how to use a condom or descriptive information about abortions and venereal diseases would be illegal if accessible by minors since these topics would fall under the realm of "indecent" for minors under this amendment. Thus, the CDA "is a content-based blanket restriction on speech, and, as such cannot be 'properly analyzed as a form of time, place, and manner regulation".

In contrast to what the Government maintains, the appellees (ACLU, et al.) claim there are four reasons why the CDA should be held unconstitutional. First, Appellees claim that the District Court found that the CDA "completely bans a vast amount of speech, all of which is constitutionally protected for adults, from all of the unique [interactive] means of communication in cyberspace" such as news groups, listservs, chat rooms, etc. "except the World Wide Web, and effectively bans that speech from most of the Web as well". The reason for this, the Appellees claim is that the kind of software needed to screen for age "does not work...on news groups, listservs, and chat rooms." Moreover, appellees point out that "in news groups, chat rooms and listservs, you are engaging in an interactive dialogue...," whereas "a Web site is static".

Second, appellees claim that there are "only 100,000 Web sites. But most of those do not have the screen capability that is required to screen for age". Furthermore, the CDA would be ineffective in keeping indecent materials from being accessed by servers in other countries. Third, there are "less-restrictive alternatives that would be more effective" such as software programs like Surfwatch, NetNanny, etc. Appellees point out that the Government concedes in its reply brief "that parents today, using these software controls, can effectively prevent their children from having access to any indecent speech, including indecent speech posted abroad." Likewise, the District Court summarized by saying that "these [software controls] were effective, and there was reason to believe they would soon be more widely available".

Finally, Appellees argue that the CDA will have the "unconstitutional effect of banning indecent speech from adults in all of cyberspace." They point out that for the last 40 years, the Supreme Court has "repeatedly and unanimously ruled that Government cannot constitutionally reduce the adult population to reading and viewing only what is appropriate for children". They go on to say that the CDA effectively reduces the adult population to reading and viewing only what is appropriate for children on the Internet. As precedence, the appellees cite Sable Communications of California v. FCC in that this Court unanimously struck down a law that banned telephone indecent speech.

On June 26, 1997, the Supreme Court in Reno v. ACLU, held that the CDA was unconstitutional and affirmed the decision of the District Court. Justice Stevens delivered the opinion of the Court in which Scalia, Kennedy, Souter, Thomas, Ginsberg, and Breyer, joined. Justice O'Connor filed an opinion concurring in the judgment in part and dissenting in part, in which Chief Justice Rehnquist joined.

The Supreme Court held that they agree with what the three-judge District Court found and that "the statute abridges 'the freedom of speech' protected by the First Amendment". Moreover, the District Court found that "users seldom encounter such content accidentally." Likewise, a document's title or a description of the document usually precedes the document and that all sexually explicit images are preceded by warnings as to content. As a result, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial" similarly to radio and television broadcast.

In addition to affirmative steps having to be taken in order to be able to access and view indecent materials on the Internet, the District Court also found that computer software had been developed to help parents control and block indecent materials from being accessed and viewed on their home computers that had Internet access. Such software include SurfWatch and CyberNanny. The District found that these software systems may "limit a computer's access to an approved list of sources that have been identified as containing no adult material." Moreover, different software systems "may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features." The Court notes that although parental control software currently can only screen for "suggestive words or known sexually explicit sites," but not sexually explicit images, "evidence indicates that 'a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material...will soon be available'".

The biggest problem the District Court found was that the CDA's end result would be to ban adult speech that was considered pornographic and "indecent" for minors as well as some speech that was not considered pornographic. In addition to this problem, the District Court found that there was a problem with having age verification on the Internet. The District Court "categorically determined that there 'is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail explorers (listservs), newsgroups or chat rooms.'" Moreover, the lower Court found that even if it were technologically possible to block minors' access to newsgroups and chat rooms containing discussions that potentially had subjects such as politics or art that contained some "indecent" or "patently offensive" contributions, "it would not be possible to block their access to that material and 'still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent".

Furthermore, the District Court found that "credit card verification [to prove age] is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency." In contrast, using credit cards to determine a user's age "would impose costs on non-commercial Web sites that would require many of them to shut down." This requirement would exclude adults, who do not have any credit cards or the resources to obtain a credit card, from accessing blocked material on the Internet. Thus, the District Court concluded that "the burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers".

Besides the credit card verification solution that the CDA offers that poses problems, the undefined language in the CDA presents a problem in that it is vague. For instance, the Supreme Court points out that "each of the two parts of the CDA uses a different linguistic form". The first part uses "indecent," 223(a) while the second part discusses material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" 223(d). The Court cites serious discussions about birth control and homosexuality that would likely be made illegal under the CDA. Because neither term was defined in the CDA, the Supreme Court believes "this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean".

The Supreme Court notes that the vagueness of the CDA concerns them for two reasons: the CDA is a content-based regulation of speech and a criminal statute. The claim that because the CDA is a content-based restriction on speech, "the vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech." The Court cites Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-1051 (1991). Further, the Supreme Court claims that the "undefined terms 'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value". In addition to its concerns with the CDA being a content-based regulation of speech, the Supreme Court points out that the "severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images". With this last concern of criminal sanctions, the Court cites Dombrowski v. Pfister, 380 U.S. 479, 494 (1965).

In response to the Supreme Court's concerns, the Government argues that the statute is "no more vague than the obscenity standard this Court established in Miller v. California, 413 U.S. 15 (1973)". The Government, the Court assumes, reasons that since the "patently offensive" (and indecent) standard "is one part of the three-prong Miller test, it cannot be unconstitutionally vague." The Supreme Court disagreed with the Government's argument stating that the second prong of the Miller test "contains a critical requirement that is omitted from the CDA: that the proscribed material be 'specifically defined by the applicable state law.' This requirement reduces the vagueness inherent in the open-ended term 'patently offensive' as used in the CDA. In addition the Court points out that the Miller definition "is limited to 'sexual conduct,' whereas the CDA extends also to include (1) 'excretory activities' as well as (2) 'organs' of both a sexual and excretory nature".

Furthermore, the Supreme Court explains that "just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague." Likewise, the Court states that "each of Miller's additional two prongs--(1) that, taken as a whole, the material appeal to the 'prurient' interest, and (2) that it 'lack serious literary, artistic, political, or scientific value'--critically limits the uncertain sweep of the obscenity definition". The Court also notes that the "societal value" requirement, found in Miller's second prong is missing in the CDA. This second requirement, the Court continues, is important because it "allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value".

Responding to the Government's earlier argument that the Internet should be treated like broadcast, the Supreme Court found that the Internet was not comparable to broadcast. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), the Court observed that "each medium of expression...may present its own problems." In contrast to broadcast, the District Court specifically found that "communication over the Internet do not 'invade' an individual's home or appear on one's screen unbidden." Thus, because the Internet is not invasive in nature compared to broadcast, the Supreme Court ruled to not treat the Internet like it does broadcast.

Moreover, the Supreme Court also found that it had "relied on the history of extensive government regulation of the broadcast medium" as well as the "scarcity of available frequencies at its [broadcast's] inception" in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638 (1994). (epic.org,13) However, unlike broadcast with it's limited available frequencies, the Internet "provides relatively unlimited, low-cost capacity for communication of all kinds." The Internet, with "as many as 40 million people" using it with that figure "expected grow to 200 million by 1999, "can hardly be considered a 'scarce' expressive commodity." Thus, when broadcast is compared to the Internet, these factors of invasiveness and scarcity found in broadcast "are not present in cyberspace".

Besides noting that the Internet was not comparable to broadcast, the Supreme Court disagrees with the Government's argument that the CDA is constitutional because it provides a "'reasonable opportunity' for speakers to engage in the restricted speech on the World Wide Web" and thus leaves an open ample "alternative channels" of communication. The Court explains that "because the CDA regulates speech on the basis of its content," the "time, place and manner" test is inapplicable. Regarding the "time, place, and manner" test, the Court cites Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536 (1980) as precedent.

Lastly, the majority opinion of the Supreme Court states that the CDA "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another." The Court goes on to say that "that burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve". In Sable, the Court made clear that "sexual expression which is indecent but not obscene is protected by the First Amendment" for adults. Likewise, in Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977) this Court stated that "where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression". Thus, this principle that this Court stated previously still applies in that the Government may not "reduce the adult population...to...only what is fit for children.

Justice O'Connor and Chief Justice Rehnquist join this decision concurring in part and dissenting in part. In her opinion, Justice O'Connor writes that "what the Court classifies as a single 'patently offensive display'...is in reality two separate provisions." She states that the first of these "makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of 18 ('specific person' provision)." She continues stating that the second "criminalizes the display of patently offensive messages or images 'in any manner available' to minors ('display' provision)." She points out that "none of these provisions purports to keep indecent (or patently offensive) material away from adults".

Moreover, she states that the "undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access." One way to do this is to create adult zones on the Internet, thus zoning the Internet. She admits that the "display" provision and some applications of the "indecency transmission" and "specific person" provisions "fail to adhere to the first of these limiting principles by restricting adults' access to protected materials in certain circumstances." However, unlike the Court, she states that she would "invalidate the provisions only in those circumstances".

In times past, the Court never had a problem with laws dealing with zoning since it had only considered laws that "operated in the physical world, a world that with two characteristics that make it possible to create 'adult zones': geography and identity". For example, because of geography and identity in the real world, an adult dance show's proprietor can prevent children from entering his establishment and yet still allow adults inside. However, the electronic world of the Internet is different in that it has some geography such as chat rooms and web sites, but no identity because it gives people anonymity. Because users can "transmit and receive messages on the Internet without revealing anything about their identities or ages,...it is not currently possible to exclude persons from accessing certain messages on the basis of their identity".

Justice O'Connor states that even though the cyberspace allows people to mask their identity, "it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws." She goes on to say that "Internet speakers...have begun to zone cyberspace itself through the use of 'gateway' technology," which "requires Internet users to enter information about themselves--perhaps an adult identification number or a credit card number--before they can access certain areas of cyberspace". She compares this use of "gateway" technology similar to a "bouncer checking a person's driver license before admitting him to a nightclub".

Instead of trying to zone cyberspace itself, Internet users have tried to "limit their own power to access information in cyberspace, much as a parent controls what her children watch on television by installing a lock box." Justice O'Connor points out that "this user-based zoning is accomplished through the use of screening software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities." She notes that both screening software and browsers "search addresses and text for keywords that are associated with 'adult' sites and, if the user wishes, blocks access to such sites".

Although user-based zoning has come along way, Justice O'Connor admits that it is still in its infancy. She states that in order for it to be effective, the following goals must be achieved: "(i) an agreed-upon code (or 'tag') would have to exist; (ii) screening software or browsers with screening capabilities would have to be able to recognize the 'tag'; and (iii) those programs would have to be widely available--and widely used--by Internet users". Unfortunately, at the present time, none of these conditions are true.

Even though she feels that the outlook for the consequent zoning of the Internet looks promising, she agrees with the Court that they must assess the constitutionality of the CDA as it applies to the Internet as it exists today. Consequently, Justice O'Connor agrees with the Court that the "display" provision "cannot pass muster" and as a result is unconstitutional. She explains that "until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an 'adult zone.'" Given the present state of the Internet, "the only way for a speaker [an adult] to avoid liability under the CDA is to refrain completely from using indecent speech," which is unacceptable under the First Amendment.

In contrast to the majority opinion, the minority believes that the "indecency transmissions" and the "specific person" provisions "are not unconstitutional in all of their applications." As stated previously, the "'indecency transmission' provision makes it a crime to transmit knowingly an indecent message to a person the sender knows is under 18 years of age" 47 U.S.C.A. 223(a). Likewise, the "specific person" provision prohibits "the same conduct, although it does not as explicitly require the sender to know what the intended recipient of his indecent message is a minor" 223(d). In the opinion of the minority, "both provisions are constitutional as applied to a conversation involving only an adult and one or more minors". For example, if an adult speaker sends an e-mail knowing the addressee is a minor, or if an adult and a minor converse by themselves or with other minors in a chat room, then the provisions would be constitutional.

Unfortunately, the "indecency transmissions" and the "specific person" provisions do not work when "more than one adult is a party to the conversation". Under the CDA, if a minor enters a chat room that is occupied by adults, the adults are required to stop using indecent speech in that chat room or risk being prosecuted under those provisions for any indecent statements they make to the group, one of whom being a minor. Justice O'Connor notes that the "absence of any means of excluding minors from chat rooms in cyberspace restricts the rights of adults to engage in indecent speech in those rooms," thus infringing on the adults First Amendment rights. As a result, the "indecency transmissions" and the "specific person" provisions would be unconstitutional in the previous example.

In conclusion, the minority believe that the two provisions "do not infringe on adults' speech in all situations". Likewise, the CDA can be applied constitutionally in some situations, when the adult speaker is speaking to a minor or multiple minors. However, the two provisions become unconstitutional when there are multiple adults involved in the indecent conversation.

Thus, the minority agreed with the Court that the provisions "are overbroad in that they cover any and all communications between adults and minors, regardless of how many adults might be part of the audience to the communication" and would rule the provisions unconstitutional under that situation. The minority, however, would sustain the two provisions "to the extent they apply to the transmissions of Internet communications where the party initiating the communication knows that all of the recipients are minors".

Justice O'Connor states that the constitutionality of the CDA as a "zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults". She continues explaining 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, I would invalidate the CDA only to that extent". However, regarding indecent speech in communications between an adult and one or more minors, the minority state that they would sustain the provisions in that situation. Justice O'Connor along with Chief Justice Rehnquist notes that the Court reached a contrary conclusion regarding the communications between an adult and one or more minors, and from that holding they both respectfully dissent.

Where does this leave the First Amendment in cyberspace? At this point in time, adults may still engage in indecent conversation with one another without worry of this speech being illegal and criminally prosecutable. Moreover, businesses have been made aware of the need for software that blocks such speech that parents do not want their children having access to. In addition, with the Republican party being influenced by the Moral Majority, the Christian Right and the Democratic Party historically supporting big government, it is possible that another piece of legislation will be passed in an attempt to censor indecent speech on the Internet from children. In either case, the Supreme Court has not seen the end of this kind of constitutional question and will more than likely have to face it again.