FridayJul 11, 2025
Quotes: 53419 Authors: 9969
Under the [Communications Decency Act], a parent allowing her 17 year old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term.... Similarly, a parent who sent his 17 year old college freshman information on birth control via e mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material 'indecent' or 'patently offensive,' if the college towns community thought otherwise. The breadth of this content based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so.
We agree with the District Courts conclusion that the [Communications Decency Act] places an unacceptably heavy burden on protected speech... In Sable [v. FCC] we remarked that the speech restriction at issue there amounted to 'burning the house to roast the pig.' The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.
The vagueness of [the Communications Decency Act] raises special First Amendment concerns because of its obvious chilling effect on free speech.... The CDA is [also] a criminal statute.... The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.
The Government first contends that, even though the [Communications Decency Act] effectively censors discourse on many of the Internets modalities such as chat groups, newsgroups, and mail exploders it is nonetheless constitutional because it provides a 'reasonable opportunity' for speakers to engage in the restricted speech on the World Wide Web.... The Governments position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books.... One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.
[The Communications Decency Act] lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.... In evaluating the free speech rights of adults, we have made it perfectly clear that sexual expression which is indecent but not obscene is protected by the First Amendment. 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.
The breadth of the [Communications Decency Acts] coverage is wholly unprecedented.... The scope of the CDA is not limited to commercial speech or commercial entities. Its open ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms 'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value.
Regardless of the strength of the governments interest [in protecting children,] the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.
As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
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