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Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996) (full-text).

Factual Background[]

Plaintif Joe Shea, an editor, publisher, and part owner of the first exclusively electronic daily newspaper, titled "The American Reporter," brought a First Amendment claim against the Communications Decency Act (CDA) Section 223(d), which criminalized the use of interactive computer services to display “patently offensivesexually-explicit messages to children under eighteen years old. The Plaintiff filed suit shortly after the enactment of the CDA and sought a preliminary injunction against enforcement of the CDA by the Department of Justice.

Trial Court Proceedings[]

The Plaintiff argued that CDA §223(d) was unconstitutional on two grounds: (1) Section 223(d) is vague; (2) Section 223(d) is constitutionally overbroad because: (a) Section 223(d) restricts internet content that is socially valuable; and (b) the affirmative defenses in Section 223(e)(5) violated adults' First Amendment right to engage in indecent online communication. The court found no merit in the Plaintiff’s vagueness and restriction of socially valuable content claims. However, the court found merit in Plaintiff’s First Amendment claim.

The central issue was whether the affirmative defenses provided in Section 223(e)(5) of the CDA violated adults' First Amendment right to engage in indecent online communication with one another.

Section 223(e)(5) of the CDA provides that:

(5) It is a defense to a prosecution . . . of this section that a person —
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.

The court held that Section 223(e)(5) is “unconstitutionally broad because it shelters children at the expense of banning otherwise protected indecent communication between adults.” The court reasoned that Section 223(e)(5)(b) requires content providers to implement costly adult verification systems which prevents content providers from engaging in constitutionally protected speech. However, the court found Section 223(e)(5)(b) applicable as a defense for the few Internet content providers who sell content for purchase. Thus, the burdensome cost of an adult verification system under Section 223(e)(5)(b) is not an affirmative defense for most Internet content providers.

Next, the court reasoned “that content providers’ ability to comply with . . . the so called good-faith defense depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the CDA.” The Defendant argued that Internet content providers can comply with the “good faith” element under Section 223(5)(e)(a) through tagging or placing content in blocked directories and registering content. However, because third parties are necessary for content providers to act under good faith through tagging or placing content in blocked directories and registering content under Section 223(e)(5)(a), the court rejected this claim. The Court observed that no feasible technology exists to guarantee that Internet content providers are acting in good faith to prevent minors from accessing indecent material as required in Section 223(e)(5)(a).

Because strict interpretation of the affirmative defenses under Section 223(e)(5) require burdensome cost to implement adult verification systems and depend on third parties to ensure Internet content providers are acting in good faith, the court concluded some constitutionally protected speech is prohibited by the vagueness of Section 223(e)(5). Therefore, the court found that the plaintiff had demonstrated a likelihood of success on the merits of his claim that Section §223(d) is overbroad and prevents adults' First Amendment protection for indecent communication.