03/02/2020
Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
in the communication would avoid the application of the statute.
[n.32]
Second,
the New York statute applied only to commercial transactions, id., at 647,
whereas the CDA contains no such limitation. Third, the New York statute
cabined its definition of material that is harmful to minors with the requirement
that it be "utterly without redeeming social importance for minors." Id., at 646.
The CDA fails to provide us with any definition of the term "indecent" as used in
§223(a)(1) and, importantly, omits any requirement that the "patently offensive"
material covered by §223(d) lack serious literary, artistic, political, or scientific
value. Fourth, the New York statute defined a minor as a person under the age of
17, whereas the CDA, in applying to all those under 18 years, includes an
additional year of those nearest majority.
In Pacifica, we upheld a declaratory order of the Federal Communications
Commission, holding that the broadcast of a recording of a 12-minute monologue
entitled "Filthy Words" that had previously been delivered to a live audience
"could have been the subject of administrative sanctions." 438 U. S., at 730
(internal quotations omitted). The Commission had found that the repetitive use
of certain words referring to excretory or sexual activities or organs "in an
afternoon broadcast when children are in the audience was patently offensive"
and concluded that the monologue was indecent "as broadcast." Id., at 735. The
respondent did not quarrel with the finding that the afternoon broadcast was
patently offensive, but contended that it was not "indecent" within the meaning
of the relevant statutes because it contained no prurient appeal. After rejecting
respondent's statutory arguments, we confronted its two constitutional
arguments: (1) that the Commission's construction of its authority to ban
indecent speech was so broad that its order had to be set aside even if the
broadcast at issue was unprotected; and (2) that since the recording was not
obscene, the First Amendment forbade any abridgement of the right to broadcast
it on the radio.
In the portion of the lead opinion not joined by Justices Powell and Blackmun,
the plurality stated that the First Amendment does not prohibit all governmental
regulation that depends on the content of speech. Id., at 742-743. Accordingly,
the availability of constitutional protection for a vulgar and offensive monologue
that was not obscene depended on the context of the broadcast. Id., at 744-748.
Relying on the premise that "of all forms of communication" broadcasting had
received the most limited First Amendment protection, id., at 748-749, the Court
concluded that the ease with which children may obtain access to broadcasts,
"coupled with the concerns recognized in Ginsberg," justified special treatment of
indecent broadcasting. Id., at 749-750.
As with the New York statute at issue in Ginsberg, there are significant
differences between the order upheld in Pacifica and the CDA. First, the order in
Pacifica, issued by an agency that had been regulating radio stations for decades,
targeted a specific broadcast that represented a rather dramatic departure from
https://www.law.cornell.edu/supct/html/96-511.ZO.html
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