03/02/2020
Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
traditional program content in order to designate when--rather than whether--it
would be permissible to air such a program in that particular medium. The 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. Second, unlike the CDA, the Commission's
declaratory order was not punitive; we expressly refused to decide whether the
indecent broadcast "would justify a criminal prosecution." Id., at 750. Finally, the
Commission's order applied to a medium which as a matter of history had
"received the most limited First Amendment protection," id., at 748, in large part
because warnings could not adequately protect the listener from unexpected
program content. The Internet, however, has no comparable history. Moreover,
the District Court found that the risk of encountering indecent material by
accident is remote because a series of affirmative steps is required to access
specific material.
In Renton, we upheld a zoning ordinance that kept adult movie theatres out of
residential neighborhoods. The ordinance was aimed, not at the content of the
films shown in the theaters, but rather at the "secondary effects"--such as crime
and deteriorating property values--that these theaters fostered: " `It is th[e]
secondary effect which these zoning ordinances attempt to avoid, not the
dissemination of "offensive" speech.' " 475 U. S., at 49 (quoting Young v.
American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34 (1976)). According to the
Government, the CDA is constitutional because it constitutes a sort of
"cyberzoning" on the Internet. But the CDA applies broadly to the entire universe
of cyberspace. And the purpose of the CDA is to protect children from the
primary effects of "indecent" and "patently offensive" speech, rather than any
"secondary" effect of such speech. Thus, the CDA is a content based blanket
restriction on speech, and, as such, cannot be "properly analyzed as a form of
time, place, and manner regulation." 475 U. S., at 46. See also Boos v. Barry,
485 U.S. 312, 321 (1988) ("Regulations that focus on the direct impact of speech
on its audience" are not properly analyzed under Renton); Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners' reaction to speech
is not a content neutral basis for regulation").
These precedents, then, surely do not require us to uphold the CDA and are fully
consistent with the application of the most stringent review of its provisions.
In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), we
observed that "[e]ach medium of expression . . . may present its own problems."
Thus, some of our cases have recognized special justifications for regulation of
the broadcast media that are not applicable to other speakers, see Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438
U.S. 726 (1978). In these cases, the Court relied on the history of extensive
government regulation of the broadcast medium, see, e.g., Red Lion, 395 U. S.,
at 399-400; the scarcity of available frequencies at its inception, see, e.g.,
https://www.law.cornell.edu/supct/html/96-511.ZO.html
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