Speech and Spillover
The Supreme Court probably will overturn the notorious Communications Decency Act. But the issues are not as cut-and-dried as some might suggest.
"any comment, request, suggestion, proposal, image, or other communication"
"that, in context, depicts or describes,"
"in terms patently offensive as measured by contemporary community standards,"
"sexual or excretory activities or organs."
Virtually any sort of speech in the public areas of cyberspace is available to minors, so the law really applies to all such areas, including Web sites, Internet newsgroups, e-mail discussion lists, chat rooms, and bulletin boards.
And "patently offensive" can cover a lot of territory. Many profanities might be considered "patently offensive" descriptions of "sexual or excretory activities or organs," especially under the standards of some conservative communities. Putting a David Mamet play on your Web site, thus, might be a crime. The term "patently offensive" is vague enough that no one knows for sure, but the wise user will take a conservative approach. Given some recent Supreme Court decisions, it seems unlikely that the vagueness alone would make the act unconstitutional. But there's no doubt that the law's vagueness does indeed make it more likely to stifle someone's freedom of expression.
The CDA, though ostensibly intended to protect children, clearly has a spillover effect on adults. Adults generally have the right to see material that's "patently offensive." There are two exceptions to this: child pornography (sexually explicit pictures made using child models) and "obscenity"--but both are much smaller categories than the CDA's "indecency." May the government, in its quest to shield children, restrict the online choices of grownups? Or to look at it the other way: Must the courts, in order to protect the freedom of grownups, restrict the government's ability to shield children?
The Supreme Court precedents are unclear. In a 1957 case called Butler vs. Michigan, a state law barred distribution of material that might be unsuitable for minors. The court concluded that such a ban was unconstitutional. The law, it said, "reduce[d] the adult population of Michigan to reading only what is fit for children. ... Surely, this is to burn the house to roast the pig." The court agreed that the state could bar distribution of such stuff directly to children. But clearly, such limited restrictions don't work as well as a total ban. The court apparently was willing to tolerate some perceived harm to children in order to protect the freedom of adults.
But in some recent cases, the court has taken a different approach. One such case is the oft-criticized FCC vs. Pacifica Foundation (1978). The Pacifica court upheld a ban on "indecency"--George Carlin's "Seven Dirty Words" monologue--on radio and television broadcasts "when there is a reasonable risk that children may be in the audience." The spillover was clear: Adults were deprived of access to certain materials on certain media (radio and television) during most hours. But the justices were willing to allow such a restriction of adults' access to speech in order to shield children.
Pacifica is a narrow decision, and there's language in it suggesting that it only applies to over-the-air broadcasting. But in this year's cable indecency case, known as Denver Consortium, four Supreme Court justices were willing to use Pacifica as a guide for cable television as well as over-the-air broadcasting. (The CDA court's decision was written before Denver Consortium was handed down.) And during the last 10 years, some lower courts have upheld bans on public display of sexually explicit material that's not technically "obscene" on the grounds that the law may shield children even if this keeps, say, a would-be muralist from communicating to adults. The Supreme Court hasn't spoken on these specific statutes.
Another important, though somewhat ambiguous, precedent is Sable Communications vs. FCC (1990), in which the court struck down a ban on dial-a-porn. The government argued the ban was needed to protect children. But the court pointed out that there might be "less restrictive alternatives" that would insulate children without entirely banning the medium. For example, the court said, the government could require services to take credit-card numbers, or require phone companies to let parents block area-code-900 phone calls.
Eugene Volokh teaches constitutional law at UCLA School of Law and runs the Volokh Conspiracy Weblog.