03/02/2020
Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
mail exploders, and newsgroups, the same individual can become a pamphleteer.
As the District Court found, "the content on the Internet is as diverse as human
thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that
our cases provide no basis for qualifying the level of First Amendment scrutiny
that should be applied to this medium.
Regardless of whether the CDA is so vague that it violates the Fifth Amendment,
the many ambiguities concerning the scope of its coverage render it problematic
for purposes of the First Amendment. For instance, each of the two parts of the
CDA uses a different linguistic form. The first uses the word "indecent," 47 U. S.
C. A. §223(a) (Supp. 1997), while the second speaks of material that "in context,
depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs," §223(d). Given
[n.35]
the absence of a definition of either term,
this difference in language will
provoke uncertainty among speakers about how the two standards relate to each
[n.36]
[n.37]
other
and just what they mean.
Could a speaker confidently assume
that a serious discussion about birth control practices, homosexuality, the First
Amendment issues raised by the Appendix to our Pacifica opinion, or the
consequences of prison rape would not violate the CDA? This uncertainty
undermines the likelihood that the CDA has been carefully tailored to the
congressional goal of protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two reasons. First,
the CDA is a content based regulation of speech. The vagueness of such a
regulation raises special First Amendment concerns because of its obvious
chilling effect on free speech. See, e.g., Gentile v. State Bar of Nev., 501 U.S.
1030, 1048-1051 (1991). Second, the CDA is a criminal statute. In addition to
the opprobrium and stigma of a criminal conviction, the CDA threatens violators
with penalties including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. See, e.g.,
Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical matter, this
increased deterrent effect, coupled with the "risk of discriminatory enforcement"
of vague regulations, poses greater First Amendment concerns than those
implicated by the civil regulation reviewed in Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U. S. ___ (1996).
The Government argues that the statute is no more vague than the obscenity
standard this Court established in Miller v. California, 413 U.S. 15 (1973). But
that is not so. In Miller, this Court reviewed a criminal conviction against a
commercial vendor who mailed brochures containing pictures of sexually explicit
activities to individuals who had not requested such materials. Id., at 18. Having
struggled for some time to establish a definition of obscenity, we set forth in
Miller the test for obscenity that controls to this day:
https://www.law.cornell.edu/supct/html/96-511.ZO.html
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