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Supreme Court finds Communications Decency Act unconstitutional

In an overwhelming victory for Internet free speech, the Supreme Court June 26 ruled in Reno v. ACLU, that the federal Communications Decency Act (CDA) is an unconstitutional restriction on free speech, affirming a lower court decision.

In a landmark 7-2 decision written by Justice Stevens, the Court ruled that the CDA places an "unacceptably heavy burden on protected speech," that "threatens to torch a large segment of the Internet community." Justice O'Connor, with Chief Justice Rehnquist, concurred with the judgment while dissenting in part along more narrow lines.

At a live "cyber-cast" news conference today at the American Civil Liberties Union's national offices in New York, ACLU Executive Director Ira Glasser hailed the ruling as an unprecedented breakthrough in the fight to determine the future of free speech into the next century.

"This is why independent courts are required to protect liberty," Glasser said. "Everyone knew the CDA was unconstitutional, but Congress passed the law and the President signed it. Today's historic decision affirms what we knew all along: cyberspace must be free."

The ACLU's suit, filed on February 8, 1996, challenges censorship provisions of the law aimed at protecting minors by criminalizing so-called "indecency" on the Internet. The government appealed the case to the High Court after a federal three-judge panel ruled unanimously last June that the law unconstitutionally restricts free speech. A later suit, filed by the American Library Association (ALA v. DOJ), was consolidated with Reno v. ACLU in the lower court.

"The Court's decision was clearly heavily influenced by the wide range of socially valuable speech at risk under this law," said Chris Hansen, the ACLU's lead counsel in the case. "The ACLU brought forth witnesses in the lower court who testified that their speech about prisoner rape, abortion, safer sex practices, and a host of other sexually related topics of importance to minors and adults alike would be criminalized under the CDA."

Writing in today's historic decision, the Court said that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

"This decision is a ringing endorsement of free speech that was joined by Justices who range across the full spectrum of the Court," Hansen said, adding that the Court clearly agreed with the ACLU's argument that the Internet is analogous to the print, rather than broadcast medium, and as such should be afforded full First Amendment protections.

The Court also recognized the tremendous speech-enhancing qualities of cyberspace, saying that "the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, and in the absence of evidence to the contrary, we presume government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it."

"This is one of the most important free speech cases in many, many years," said Steven R. Shapiro, Legal Director of the national ACLU. "The Courts today recognized what Congress did not -- that speech cannot flourish under the shadow of censorship."

The high court's decision came just three days after federal district judges in New York and Georgia struck down Internet censorship laws in those states.

The New York case, American Library Association v. Pataki, dealt with a law virtually identical to the federal CDA. Judge Loretta A. Preska ruled that the law violated the Commerce Clause of the U.S. Constitution because it attempted to regulate activity beyond the state's borders.

In the Georgia case, ACLU v. Miller, Judge Marvin Shoob found a law banning anonymous speech on the Internet to be an unconstitutional restriction on free speech that "affords prosecutors and police officers with substantial room for selective prosecution of persons who express minority viewpoints."

"Today's Supreme Court ruling, together with the New York and Georgia decisions, creates a body of law that will help ensure that the free speech principles embodied in our Constitution apply with the same force on the Internet as they do in the morning paper, in the town square, and in the privacy of our own homes," said Ann Beeson, an ACLU attorney and member of the Reno v. ACLU legal team as well as the ACLU v. Miller and ALA v. Pataki teams.

The Georgia and New York cases were the first such challenges to state attempts to regulate the Internet. Currently, more than 20 states have passed or are considering such laws, Beeson added.

A third ACLU lawsuit, Urofsky v. Allen, challenges a Virginia law banning state employees from accessing "indecency" online. That case, filed on behalf of six university professors, is set to go on trial this fall.

The kind of "indecency" identified as potentially criminal by government witnesses in Reno v. ACLU included Internet postings of the photo of the actress Demi Moore naked and pregnant on the cover of Vanity Fair, and any use online of the famous "seven dirty words." In addition, the CDA would put at risk much of the socially valuable material posted online by the plaintiffs, including the ACLU, Planned Parenthood, Stop Prisoner Rape, Human Rights Watch and Critical Path AIDS Project. The ACLU argued that minors are entitled to have access to such socially valuable information.

The 20 plaintiffs in Reno v. ACLU are: American Civil Liberties Union, Human Rights Watch, Electronic Privacy Information Center, Electronic Frontier Foundation, Journalism Education Association, Computer Professionals for Social Responsibility, National Writers Union, ClariNet, Institute for Global Communications, Stop Prisoner Rape, AIDS Education Global Information System, BiblioBytes, Queer Resources Directory, Critical Path AIDS Project, Wildcat Press, Justice on Campus, Brock Meeks dba CyberWire Dispatch, the Safer Sex Web Page, The Ethical Spectacle, and Planned Parenthood Federation of America.

Lawyers for the ACLU are Christopher Hansen, Ann Beeson and Marjorie Heins of the national office; Steven R. Shapiro, the ACLU's national Legal Director; and Stefan Presser, Legal Director of the ACLU of Pennsylvania.

The case is Reno v. ACLU, No. 96-511.


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