Richard L. Wiener, PhD, St. Louis University, Tracey Richmond, Claremont University and Brenda Russell, St. Louis University

In June of 1997 the Supreme Court upheld the Eastern District Court of Pennsylvania that had ruled that the Communications Decency Act of 1996 (CDA) violated the United States Constitution, Reno v. ACLU 117 S.Ct. 2329 (1997). In doing so, the Supreme Court held that sexually explicit speech on the Internet enjoys the full protection of the First Amendment. The District Court found that users may gain access to sexually explicit text, pictures, e-mail, automatic mailing list servers ( 'listservs '), newsgroups, chat rooms, and the World Wide Web. However, users must act deliberately to gain access and cannot simply tune in with a dial or switch. While software allows adults to limit computer access to sites that contain no adult material, no technology exists that allows a speaker to verify that the members of any particular ?listserv ' include only adults. Finally, short of instituting costly password or credit-card systems, there is no way to limit access to Web sites to adult users. The Supreme Court concluded that the CDA?s attempt to protect children from potentially harmful materials was in violation of the First Amendment, 'Congress shall make no law?abridging the freedom of speech. '

Background on the case

The 'indecent transmission ' provision in the CDA made it a crime to knowingly transmit to anyone under 18 years of age? 'any comment, request, suggestion, proposal, image or other communication which is obscene or indecent. ' The 'patently offensive display ' provision held people criminally liable if they used an 'interactive computer service ' to knowingly send or display to 'a person under 18 years of age?any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities?. '

The government claimed that these prohibitions were similar to restrictions against selling materials to minors that are not obscene to adults, but that may be obscene for minors, Ginsberg v. New York, 390 U. S 629 (1968). They also resemble acceptable restrictions placed upon broadcasting indecent materials over the radio airwaves at times during the day when minors are likely to be listening, FCC v. Pacifica Foundation, 438 U.S. 726 (1978). However, the Supreme Court distinguished the CDA from those actions that it found constitutional in Ginsberg and Pacifica. Pacifica prevented radio broadcasts only during certain times of the day (when minors were most likely tuned in), and both cases pertained only to commercial speech. On the other hand, the CDA took a much broader sweep, targeting nonprofit entities and even individuals posting or displaying messages on their own private computers.

The Supreme Court held that sexually explicit speech on the Internet enjoys the full protection of the First Amendment. Therefore, the Court applied the strict scrutiny test to find that the 'ambiguities concerning the scope of its coverage

?undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. ' Vagueness in the definitions of the 'indecent ' standard in the first provision and the 'patently offensive ' standard in the second provision could confuse potential speakers with regard to acceptable and prohibited speech and result in an overall chilling effect on adult communication. Although the Court upheld the 'indecent transmission ' provision to the extent that it prohibited 'obscene ' speech as defined by Miller v. California, 413 U.S.15 (1973), existing laws already prohibit obscenity on the Internet.

Implications for psychology

The ruling passes the burden of limiting access to age-inappropriate material on the Internet to child caretakers. Psychologists, educators and parents must develop individual standards that can be enforced to limit access while preserving the positive functions of the Internet as a learning tool. Second, the ruling does not protect obscene materials provided that the state can apply contemporary community standards to show that the Internet materials appeal to prurient interests and depict?in a patently offensive manner?sexual conduct, defined by law as those materials that have insufficient literary, artistic, political or scientific value [Miller, 413 U.S. 15, 24 (1973)]. Social scientists, including psychologists, can assist the courts by discovering ways to measure contemporary community standards among Internet users. Because users log on to computers dispersed worldwide, this makes the problem of documenting a community standard a difficult methodological challenge.

'Judicial notebook ' is an effort by the Courtwatch Committee of APA?s Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.