Internet Meets First Amendment

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for a redress of grievances.” First Amendment to the Constitution of the United States”

Although undisputed visionaries, it is doubtful that the drafters of these 45 words could have anticipated their use in regulating internet web sites such as or This lack of vision has left courts in the United States and throughout the world in the unenviable position of trying to interpret and apply traditional regulations of free speech to the World Wide Web. Historically, regulation of Free Speech in any jurisdiction seeks to strike the delicate balance between promoting ideas while simultaneously protecting community sensibilities. The explosive growth of Internet communication has affected this balancing act with issues such as who has jurisdiction to regulate Freedom of Expression? Whose laws on obscenity should be applied? Should traditional definitions of Obscenity be used? And above all, how do we protect children who are arguably more familiar with the Internet than those who seek to regulate it?

The Internet can almost be viewed as a child from a small group of highly educated people who was expected to behave and mature in the controlled fashion of its parents. However, affordability of computers resulted in their presence in virtually every household. Rather than maturing like the child of well-educated and responsible parents, the Internet has in some ways turned into the misunderstood delinquent whose parents can only stand by and shake their heads at the dizzying speed at which their child has grown. Most countries have long standing laws that regulate speech and commerce irrespective of the medium. The problem is whether such regulations will adapt for this juvenile. Although it has taken time, cyberspace is finally realizing that the time for enforcement of discipline is approaching. The difficulty lies in trying to regulate a juvenile who is simultaneously an invited dignitary and persona non-gratis in almost every country.

While politics and pornography are not the only reason why governments are seeking to control the Internet (there are of course financial motivations such as taxation, trade and intellectual property), it is likely that the former justifications sound far more noble in an election year. However, current definitions and standards for protection of children from obscene and indecent material are struggling to adapt to Internet communications.

Obscenity and Indecency
The First Amendment, like all amendments is not absolute. Obscene speech and Child Pornography enjoy no First Amendment protection. Indecent speech is afforded very limited protection. On the surface it would seem to be a reasonable state of affairs with which very few would disagree.

However, the US Supreme Court has struggled for decades with actual definitions in this area. The current test for obscenity is found in the ruling in Miller v. California 413 US 15 (1973). Mr. Miller was prosecuted under California Law for mass mailings of “adult” material. The Supreme Court established the following test for obscenity:

“(a) Whether the average person, applying contemporary community standards, would find that the work, 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 applicable state law; and (c) Whether the work, taken as a whole, lacks serious literary artistic, political or scientific value. Id. at 24”

If speech fails the Miller test then it is not constitutionally protected. The definition is fairly narrow and excludes virtually anything that may relate to art, even in its most pretentious form.

Indecency was first addressed by the Supreme Court in FCC v. Pacifica Foundation 438 U.S. 726 (1978). The case concerned whether a radio station could be fined for airing one of George Carlin’s “Filthy Word” monologues. Justice Stevens, writing for the majority of the court upheld the FCC’s right to regulate Indecency because TV and radio are pervasive and easily accessible to children.”Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”The Communications Decency Act, signed into law by President Clinton on February 8, 1996 defined Indecent material as:

“Any comment, request, suggestion, proposal, image or other communication that, in contest, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

As can be seen, definitions of obscenity and indecency by any branch of government tends to confuse rather than clarify the issue.

Attempts at Legislation
Despite somewhat confusing definitions by the Judiciary, the Legislature has fared little better in attempting to define Obscenity. Child Protection and Obscenity Enforcement Act – 1988 In 1988, Congress enacted the Child Protection and Obscenity Enforcement Act of 1988 which amended section 223(b) of the Communications Act of 1934.

It constitutionality was immediately challenged in Sable Communications Inc. v. FCC 492 U.S. 115 (1989). Sable offered telephone messages with sexually oriented content to individuals who dialed in for a fee. The Supreme Court found that section 223(b) was overly broad and unconstitutional with respect to its prohibition on indecent telephone messages. The Court pointed out that the First Amendment protects sexual expression that is indecent even though the government can regulate the protected speech, as long as it has a compelling government interest for doing so and achieves that interest through the least restrictive means.

Child Pornography Prevention Act – 1996
The Child Pornography Prevention Act of 1996, (CPPA) was enacted to combat the use of computer technology to produce pornography that conveyed the impression that children were used in the photographs or images. Essentially this meant that computer generated images of children engaged in pornographic acts is also illegal. The law survived constitutional challenge in Free Speech Coalition v. Reno 1997 US Dist Lexis 12212.


The Communications Decency Act – 1996
The Communications Decency Act of 1996 (CDA) was passed to regulate the amount of sexually explicit material available for viewing over the Internet. The Legislature seemed to recognize that unlike the newspaper, broadcast or cable system; the Internet potentially gives the speaker access to a worldwide audience.

The CDA immediately faced criticism for its failure to differentiate between pornographers and awareness groups seeking to educate and inform on sexually explicit topics. The problem also arose as to whether the Internet should be treated like a print medium and subject to minimal government regulation or like the broadcast medium and subject to strict governmental regulation. The designation was crucial as the CDA was placed under the jurisdiction of the FCC, which enforces the broadcast medium. When it constitutionally was challenged, the Court examined the nature of the Internet and distinguished it from other broadcast media. Unlike television radio and cable, the Supreme Court held that there is no basis for permitting Congress to regulate the Internet for the public good. The Internet is not as invasive as radio or television and does not warrant the type of governmental regulation that has attended the broadcast industry. Moreover unlike the broadcast industry the Internet is not perceived as a scarce resource.

The Child Online Protection Act – 1998
Following the courts striking down of the CDA Congress attempted to limit access of indecent materials over the Internet by passing COPA. The same day COPA was to go into effect, its constitutionality was challenged. ACLU v. Reno No. 98-5591 (E.D. Pa.) Feb. 1999 (Reno II). The Court recognized the importance of protecting children from material on the Web which is harmful to minors and the compelling interest sought to be furthered by Congress through COPA. However, the Court issued a preliminary injunction against the enforcement of COPA as it found the statute would have a chilling effect on constitutionally protected speech. The Court concluded:

“Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection” Id. 24

Despite almost eleven years of Legislative attempts to clearly define and regulate Obscene and Indecent material, the law is still less than settled in this area.

Filtering Software
The Courts are having problems. The Legislature is less than successful. The jurisdictional issues are a nightmare. Perhaps the only remaining solution is to enact the Parental “Because I said No” Act. Despite all technological advances, unparalleled access to information and overwhelming options provided by the Internet, its successful regulation with respect to minors is likely to be achieved most effectively at the parental level. Regulation at this level is best suited to overcome different ideals and sensibilities for many reasons, including the fact that the “Because I said No” section of the Act is immediately followed by the “And I Pay For It” section.

Parents may also choose to enlist some outside help in regulating their children’s access to the Internet. The FCC provides limited information on various filtering software devices that can be used to prevent access to certain sites. To date, such software includes Cyber Patrol, Cybersitter, Cybersnoop, Surfwatch and Netnanny. However, the FCC stresses the importance of active involvement with children who use the Internet. Further, parents should be aware that the use of such filtering devices in libraries is potentially unconstitutional. In the case of Mainstream Loudoun v. Board of Trustees of the Loudon County Library No. 97-2049-A 9 (E.D. Va. Nov. 23, 1998), plaintiffs challenged the library’s use of filtering software. The Court concluded the First Amendment prohibits a public library from enforcing content based restrictions on access to speech on the Internet (through filtering software).

The law governing the protection of children from obscene and indecent material available on the World Wide Web is already experiencing a troubled infancy. It is likely that it will take both trial and error to establish a practical jurisprudence for this area. Arguably, it is an area that does not and should not lend itself to rigid definitions, since its application must be tailored to each factual situation with the flexibility necessary to promote Free Speech, while protecting community sensibilities.

Gregory G. Brown, Certified Trial Specialist
Brown & Charbonneau, LLP