|“||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.||”|
- — Justice John Paul Stevens (writing for the majority)
U.S Supreme Court Proceedings
The Supreme Court declared unconstitutional two provisions of the Communications Decency Act (CDA) that prohibited indecent communications to minors on the Internet. The Court found that “the CDA is a content-based blanket restriction on speech . . . .” As such, it may be found constitutional only if it serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest.”
As for whether the CDA promotes a compelling interest, although the Court referred to “the legitimacy and importance of the congressional goal of protecting children from harmful materials,” it suggested that there may be less of a governmental interest in protecting older children from indecent material — at least such material as had artistic or educational value.
Considering whether the CDA is the least restrictive means to further the governmental interest, the Court found that “the Government [failed] to explain why a less restrictive provision would not be as effective as the CDA.” The Court held that:
|“||the CDA’s “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. . . . [T]he governmental interest in protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’”||”|
The Court distinguished the Internet from radio and television because (1) “[t]he 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,”(2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter of history . . . ‘received the most limited First Amendment protection, . . . in large part because warnings could not adequately protect the listener from unexpected program content. . . . [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”
|“||We are persuaded that the CDA 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. 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.||”|
- 521 U.S. at 868.
- Sable Comm'ns. of Cal., Inc. v. Federal Comm. Comm'n, 492 U.S. 115 (1989)(full-text).
- 521 U.S. at 849.
- See id. at 878. The Court wrote: “[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 town’s community thought otherwise.” Id.
- Id. at 879.
- Id. at 874-75.