03/02/2020
Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
and concluded that the Internet--as "the most participatory form of mass speech
yet developed," id., at 883--is entitled to "the highest protection from
governmental intrusion," ibid.
[n.30]
The judgment of the District Court enjoins the Government from enforcing the
prohibitions in §223(a)(1)(B) insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited therein.
The injunction against enforcement of §§223(d)(1) and (2) is unqualified
because those provisions contain no separate reference to obscenity or child
pornography.
The Government appealed under the Act's special review provisions, §561, 110
Stat. 142-143, and we noted probable jurisdiction, see 519 U. S. ___ (1996). In
its appeal, the Government argues that the District Court erred in holding that
the CDA violated both the First Amendment because it is overbroad and the Fifth
Amendment because it is vague. While we discuss the vagueness of the CDA
because of its relevance to the First Amendment overbreadth inquiry, we
conclude that the judgment should be affirmed without reaching the Fifth
Amendment issue. We begin our analysis by reviewing the principal authorities
on which the Government relies. Then, after describing the overbreadth of the
CDA, we consider the Government's specific contentions, including its submission
that we save portions of the statute either by severance or by fashioning judicial
limitations on the scope of its coverage.
In arguing for reversal, the Government contends that the CDA is plainly
constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390
U.S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U.S. 726 (1978); and (3)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). A close look at these
cases, however, raises--rather than relieves--doubts concerning the
constitutionality of the CDA.
In Ginsberg, we upheld the constitutionality of a New York statute that prohibited
selling to minors under 17 years of age material that was considered obscene as
to them even if not obscene as to adults. We rejected the defendant's broad
submission that "the scope of the constitutional freedom of expression secured to
a citizen to read or see material concerned with sex cannot be made to depend
on whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that
contention, we relied not only on the State's independent interest in the well
being of its youth, but also on our consistent recognition of the principle that "the
parents' claim to authority in their own household to direct the rearing of their
[n.31]
children is basic in the structure of our society."
In four important respects,
the statute upheld in Ginsberg was narrower than the CDA. First, we noted in
Ginsberg that "the prohibition against sales to minors does not bar parents who
so desire from purchasing the magazines for their children." Id., at 639. Under
the CDA, by contrast, neither the parents' consent--nor even their participation-https://www.law.cornell.edu/supct/html/96-511.ZO.html
[n 32]
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