by Declan McCullagh
26 June 1997

The U.S. Supreme Court, in a landmark decision that firmly establishes unbridled free speech in cyberspace, struck down the Communications Decency Act. In a 40-page majority opinion opinion handed down this morning, the Justices determined that the act is unconstitutional. The court also resoundingly rejected the argument that broadcast standards should apply to the Internet.

The Justices unanimously ruled that the so-called "display provision" -- which would effectively render the Net "child safe" -- was patently unconstitutional. "The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship," wrote Justice John Paul Stevens. In a 7-to-2 decision, the court also struck down the other half of the CDA, which banned "indecent transmission" to a minor. The minority argued that such a limitation would not interfere "with the First Amendment rights of adults." Justices Sandra Day O'Connor and William Rehnquist were the lone dissenters on that point in a 13-page minority opinion.

"This is the landmark decision that many of us anticipated," said David Sobel, staff counsel at the Electronic Privacy Information Center and co-counsel on the case. Phil Gutis of the American Civil Liberties Union -- the lead plaintiff in Reno v. ACLU -- said the decision left no wriggle room for CDA supporters: "It's going to be very hard for Congress to go back and say the court left us this opening. They didn't."

Yet CDA supporters promised to keep up the fight. Against the backdrop of a dozen anti-porn activists, Cathy Cleaver, the director of legal policy for the Family Research Council, proclaimed that, "today we're going to see the floodgates of pornography open on the internet. This is not a good time to be a child. We're not going to give up the fight to protect children online."

In spite of such perceived dangers, the court apparently realized the unique nature of the Internet and appreciated the fact that it is a new and developing medium. "Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as 'invasive' as radio or television," the majority wrote. The CDA "threatens to torch a large segment of the Internet community."

The chief congressional opponent of the CDA applauded the court's recognition that the Internet is wholly unlike broadcast media. "Giving full force to the first amendment online is a victory for the first amendment, for american technology, and for democracy," said Sen. Patrick Leahy (D-VT) in a statement. "The CDA was misguided and unworkable. It reflected a fundamental misunderstanding of the technology of the Internet."

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