SUPREME COURT DECISION IN RENO V ACLU, ET AL

provisions. The court's judgment enjoins the Government from

SUPREME COURT OF THE UNITED STATES

"indecent" communications, but expressly preserves the

al. v. AMERICAN CIVIL LIBERTIES UNION et al.

against enforcement of 223(d) is unqualified because that section

appeal from the united states district court for the eastern district

contains no separate reference to obscenity or child pornography.

of pennsylvania
No. 96-511. Argued March 19, 1997-Decided June 26, 1997

The Government appealed to this Court under the Act's special

Two provisions of the Communications Decency Act of 1996 (CDA

that the CDA violated both the First Amendment because it is

or Act) seek to protect minors from harmful material on the

overbroad and the Fifth Amendment because it is vague.

Internet, an international network of interconnected computers

Held: The CDA's "indecent transmission" and "patently offensive

that enables millions of people to communicate with one another in

display" provisions abridge "the freedom of speech" protected by

"cyberspace" and to access vast amounts of information from

the First Amendment. Pp. 17-40.

around the world. Title 47 U. S. C. A. 223(a)(1)(B)(ii) (Supp. 1997)

(a) Although the CDA's vagueness is relevant to the First

criminalizes the "knowing" transmission of "obscene or indecent"

Amendment overbreadth inquiry, the judgment should be affirmed

messages to any recipient under 18 years of age. Section 223(d)

without reaching the Fifth Amendment issue. P. 17.

prohibits the "knowin[g]" sending or displaying to a person under

(b) A close look at the precedents relied on by the Government-

18 of any message "that, in context, depicts or describes, in terms

Ginsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation,

patently offensive as measured by contemporary community

438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41-

standards, sexual or excretory activities or organs." Affirmative

raises, rather than relieves, doubts about the CDA's

defenses are provided for those who take "good faith, . . .

constitutionality. The CDA differs from the various laws and orders

effective . . . actions" to restrict access by minors to the prohibited

upheld in those cases in many ways, including that it does not

communications, 223(e)(5)(A), and those who restrict such access

allow parents to consent to their children's use of restricted

by requiring certain designated forms of age proof, such as a

materials; is not limited to commercial transactions; fails to

verified credit card or an adult identification number, 223(e)(5)(B).

provide any definition of "indecent" and omits any requirement

A number of plaintiffs filed suit challenging the constitutionality of

that "patently offensive" material lack socially redeeming value;

223(a)(1) and 223(d). After making extensive findings of fact, a

neither limits its broad categorical prohibitions to particular times

three-judge District Court convened pursuant to the Act entered a

nor bases them on an evaluation by an agency familiar with the

preliminary injunction against enforcement of both challenged

medium's unique characteristics; is punitive; applies to a medium

that, unlike radio, receives full First Amendment protection; and

set forth in Miller v. California, 413 U. S. 15, 24. The second Miller

cannot be properly analyzed as a form of time, place, and manner

prong reduces the inherent vagueness of its own "patently

regulation because it is a content-based blanket restriction on

offensive" term by requiring that the proscribed material be

speech. These precedents, then, do not require the Court to uphold

"specifically defined by the applicable state law." In addition, the

the CDA and are fully consistent with the application of the most

CDA applies only to "sexual conduct," whereas, the CDA

stringent review of its provisions. Pp. 17-21.

prohibition extends also to "excretory activities" and "organs" of

(c) The special factors recognized in some of the Court's cases as

both a sexual and excretory nature. Each of Miller's other two

justifying regulation of the broadcast media-the history of

prongs also critically limits the uncertain sweep of the obscenity

extensive government regulation of broadcasting, see, e.g., Red

definition. Just because a definition including three limitations is

Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity

not vague, it does not follow that one of those limitations, standing

of available frequencies at its inception, see, e.g., Turner

alone, is not vague. The CDA's vagueness undermines the

Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its

likelihood that it has been carefully tailored to the congressional

"invasive" nature, see Sable Communications of Cal., Inc. v. FCC,

goal of protecting minors from potentially harmful materials. Pp.

492 U. S. 115, 128-are not present in cyberspace. Thus, these

24-28.

cases provide no basis for qualifying the level of First Amendment

(e) The CDA lacks the precision that the First Amendment requires

scrutiny that should be applied to the Internet. Pp. 22-24.

when a statute regulates the content of speech. Although the

(d) Regardless of whether the CDA is so vague that it violates the

Government has an interest in protecting children from potentially

Fifth Amendment, the many ambiguities concerning the scope of

harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA

its coverage render it problematic for First Amendment purposes.

pursues that interest by suppressing a large amount of speech that

For instance, its use of the undefined terms "indecent" and

adults have a constitutional right to send and receive, see, e.g.,

"patently offensive" will provoke uncertainty among speakers

Sable, supra, at 126. Its breadth is wholly unprecedented. The

about how the two standards relate to each other and just what

CDA's burden on adult speech is unacceptable if less restrictive

they mean. The vagueness of such a content-based regulation,

alternatives would be at least as effective in achieving the Act's

see, e.g., Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with

legitimate purposes. See, e.g., Sable, 492 U. S., at 126. The

its increased deterrent effect as a criminal statute, see, e.g.,

Government has not proved otherwise. On the other hand, the

Dombrowski v. Pfister, 380 U. S. 479, raise special First

District Court found that currently available user-based software

Amendment concerns because of its obvious chilling effect on free

suggests that a reasonably effective method by which parents can

speech. Contrary to the Government's argument, the CDA is not

prevent their children from accessing material which the parents

saved from vagueness by the fact that its "patently offensive"

believe is inappropriate will soon be widely available. Moreover,

standard repeats the second part of the three-prong obscenity test

the arguments in this Court referred to possible alternatives such

as requiring that indecent material be "tagged" to facilitate

indicate their contents, thus permitting recipients to block their

parental control, making exceptions for messages with artistic or

reception with appropriate software, is illusory, given the

educational value, providing some tolerance for parental choice,

requirement that such action be "effective": The proposed

and regulating some portions of the Internet differently than

screening software does not currently exist, but, even if it did,

others. Particularly in the light of the absence of any detailed

there would be no way of knowing whether a potential recipient

congressional findings, or even hearings addressing the CDA's

would actually block the encoded material. The Government also

special problems, the Court is persuaded that the CDA is not

failed to prove that 223(b)(5)'s verification defense would

narrowly tailored. Pp. 28-33.

significantly reduce the CDA's heavy burden on adult speech.

(f) The Government's three additional arguments for sustaining the

Although such verification is actually being used by some

CDA's affirmative prohibitions are rejected. First, the contention

commercial providers of sexually explicit material, the District

that the Act is constitutional because it leaves open ample

Court's findings indicate that it is not economically feasible for

"alternative channels" of communication is unpersuasive because

most noncommercial speakers. Pp. 35-37.

the CDA regulates speech on the basis of its content, so that a

(h) The Government's argument that this Court should preserve

"time, place, and manner" analysis is inapplicable. See, e.g.,

the CDA's constitutionality by honoring its severability clause,

Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N.

608, and by construing nonseverable terms narrowly, is

Y., 447 U. S. 530, 536. Second, the assertion that the CDA's

acceptable in only one respect. Because obscene speech may be

"knowledge" and "specific person" requirements significantly

banned totally, see Miller, supra, at 18, and 223(a)'s restriction of

restrict its permissible application to communications to persons

"obscene" material enjoys a textual manifestation separate from

the sender knows to be under 18 is untenable, given that most

that for "indecent" material, the Court can sever the term "or

Internet forums are open to all comers and that even the strongest

indecent" from the statute, leaving the rest of 223(a) standing.

reading of the "specific person" requirement would confer broad

Pp. 37-39.

powers of censorship, in the form of a "heckler's veto," upon any

(i) The Government's argument that its "significant" interest in

opponent of indecent speech. Finally, there is no textual support

fostering the Internet's growth provides an independent basis for

for the submission that material having scientific, educational, or

upholding the CDA's constitutionality is singularly unpersuasive.

other redeeming social value will necessarily fall outside the CDA's

The dramatic expansion of this new forum contradicts the factual

prohibitions. Pp. 33-35.

basis underlying this contention: that the unregulated availability

(g) The 223(e)(5) defenses do not constitute the sort of "narrow

of "indecent" and "patently offensive" material is driving people

tailoring" that would save the CDA. The Government's argument

away from the Internet. P. 40.

that transmitters may take protective "good faith actio[n]" by

929 F. Supp. 824, affirmed.

"tagging" their indecent communications in a way that would

Stevens, J., delivered the opinion of the Court, in which Scalia,

Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined.

of

O'Connor, J., filed an opinion concurring in the judgment in part

sexually explicit material in that medium, and the problems

and dissenting in part, in which Rehnquist, C. J., joined.

confronting age verification for recipients of Internet

NOTICE: This opinion is subject to formal revision before

communications. Because those findings provide the

publication in the preliminary print of the United States Reports.

underpinnings for the legal issues, we begin with a summary of the

Readers are requested to notify the Reporter of Decisions, Supreme

undisputed facts.

Court of the United States, Wash-ington, D.C. 20543, of any

The Internet

typographical or other formal errors, in order that corrections may

The Internet is an international network of interconnected

be made before the preliminary print goes to press.

computers. It is the outgrowth of what began in 1969 as a military

SUPREME COURT OF THE UNITED STATES

computers operated by the military, defense contractors, and

No. 96-511

universities conducting defense-related research to communicate

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al.,

with one another by redundant channels even if some portions of

APPELLANTS v. AMERICAN CIVIL LIBERTIES UNION et al.

the network were damaged in a war. While the ARPANET no longer

on appeal from the united states district court for the eastern

exists, it provided an example for the development of a number of

district of pennsylvania
[June 26, 1997]

civilian networks that, eventually linking with each other, now

Justice Stevens delivered the opinion of the Court.

and to access vast amounts of information from around the world.

At issue is the constitutionality of two statutory provisions enacted

The Internet is "a unique and wholly new medium of worldwide

to protect minors from "indecent" and "patently offensive"

human communication."(4)

communications on the Internet. Notwithstanding the legitimacy

The Internet has experienced "extraordinary growth."(5) The

and importance of the congressional goal of protecting children

number of "host" computers-those that store information and relay

from harmful materials, we agree with the three-judge District

communications-increased from about 300 in 1981 to

Court that the statute abridges "the freedom of speech" protected

approximately 9,400,000 by the time of the trial in 1996. Roughly

by the First Amendment.(1)

60% of these hosts are located in the United States. About 40

million people used the Internet at the time of trial, a number that

The District Court made extensive findings of fact, most of which

is expected to mushroom to 200 million by 1999.

were based on a detailed stipulation prepared by the parties. See

Individuals can obtain access to the Internet from many different

929 F. Supp. 824, 830-849 (ED Pa. 1996).(2) The findings describe

sources, generally hosts themselves or entities with a host

the character and the dimensions of the Internet, the availability

affiliation. Most colleges and universities provide access for their

students and faculty; many corporations provide their employees

message to the group's other subscribers. Newsgroups also serve

with access through an office network; many communities and

groups of regular participants, but these postings may be read by

local libraries provide free access; and an increasing number of

others as well. There are thousands of such groups, each serving to

storefront "computer coffee shops" provide access for a small

foster an exchange of information or opinion on a particular topic

hourly fee. Several major national "online services" such as

running the gamut from, say, the music of Wagner to Balkan

America Online, CompuServe, the Microsoft Network, and Prodigy

politics to AIDS prevention to the Chicago Bulls. About 100,000

offer access to their own extensive proprietary networks as well as

new messages are posted every day. In most newsgroups, postings

a link to the much larger resources of the Internet. These

are automatically purged at regular intervals. In addition to posting

commercial online services had almost 12 million individual

a message that can be read later, two or more individuals wishing

subscribers at the time of trial.

to communicate more immediately can enter a chat room to

Anyone with access to the Internet may take advantage of a wide

engage in real-time dialogue-in other words, by typing messages to

variety of communication and information retrieval methods. These

one another that appear almost immediately on the others'

methods are constantly evolving and difficult to categorize

computer screens. The District Court found that at any given time

precisely. But, as presently constituted, those most relevant to this

"tens of thousands of users are engaging in conversations on a

case are electronic mail ("e-mail"), automatic mailing list services

huge range of subjects."(6) It is "no exaggeration to conclude that

("mail exploders," sometimes referred to as "listservs"),

the content on the Internet is as diverse as human thought."(7)

"newsgroups," "chat rooms," and the "World Wide Web." All of

The best known category of communication over the Internet is the

these methods can be used to transmit text; most can transmit

World Wide Web, which allows users to search for and retrieve

sound, pictures, and moving video images. Taken together, these

information stored in remote computers, as well as, in some cases,

tools constitute a unique medium-known to its users as

to communicate back to designated sites. In concrete terms, the

"cyberspace"-located in no particular geographical location but

Web consists of a vast number of documents stored in different

available to anyone, anywhere in the world, with access to the

computers all over the world. Some of these documents are simply

Internet.

files containing information. However, more elaborate documents,

E-mail enables an individual to send an electronic message-

commonly known as Web "pages," are also prevalent. Each has its

generally akin to a note or letter-to another individual or to a group

own address-"rather like a telephone number."(8) Web pages

of addressees. The message is generally stored electronically,

frequently contain information and sometimes allow the viewer to

sometimes waiting for the recipient to check her "mailbox" and

communicate with the page's (or "site's") author. They generally

sometimes making its receipt known through some type of prompt.

also contain "links" to other documents created by that site's

A mail exploder is a sort of e-mail group. Subscribers can send

author or to other (generally) related sites. Typically, the links are

messages to a common e-mail address, which then forwards the

either blue or underlined text-sometimes images.

Navigating the Web is relatively straightforward. A user may either

manner as material that is not sexually explicit, and may be

type the address of a known page or enter one or more keywords

accessed either deliberately or unintentionally during the course of

into a commercial "search engine" in an effort to locate sites on a

an imprecise search. "Once a provider posts its content on the

subject of interest. A particular Web page may contain the

Internet, it cannot prevent that content from entering any

information sought by the "surfer," or, through its links, it may be

community."(12) Thus, for example, "when the UCR/California

an avenue to other documents located anywhere on the Internet.

Museum of Photography posts to its Web site nudes by Edward

Users generally explore a given Web page, or move to another, by

Weston and Robert Mapplethorpe to announce that its new exhibit

clicking a computer "mouse" on one of the page's icons or links.

will travel to Baltimore and New York City, those images are

Access to most Web pages is freely available, but some allow

available not only in Los Angeles, Baltimore, and New York City, but

access only to those who have purchased the right from a

also in Cincinnati, Mobile, or Beijing-wherever Internet users live.

commercial provider. The Web is thus comparable, from the

Similarly, the safer sex instructions that Critical Path posts to its

readers' viewpoint, to both a vast library including millions of

Web site, written in street language so that the teenage receiver

readily available and indexed publications and a sprawling mall

can understand them, are available not just in Philadelphia, but

offering goods and services.

also in Provo and Prague."(13)

From the publishers' point of view, it constitutes a vast platform

Some of the communications over the Internet that originate in

from which to address and hear from a world-wide audience of

foreign countries are also sexually explicit.(14)

millions of readers, viewers, researchers, and buyers. Any person

Though such material is widely available, users seldom encounter

or organization with a computer connected to the Internet can

such content accidentally. "A document's title or a description of

"publish" information. Publishers include government agencies,

the document will usually appear before the document itself . . .

educational institutions, commercial entities, advocacy groups, and

and in many cases the user will receive detailed information about

individuals.(9) Publishers may either make their material available

a site's content before he or she need take the step to access the

to the entire pool of Internet users, or confine access to a selected

document. Almost all sexually explicit images are preceded by

group, such as those willing to pay for the privilege. "No single

warnings as to the content."(15) For that reason, the "odds are

organi zation controls any membership in the Web, nor is there any

slim" that a user would enter a sexually explicit site by accident.

centralized point from which individual Web sites or services can

(16) Unlike communications received by radio or television, "the

be blocked from the Web."(10)

receipt of information on the Internet requires a series of

Sexually Explicit Material

affirmative steps more deliberate and directed than merely turning

Sexually explicit material on the Internet includes text, pictures,

a dial. A child requires some sophistication and some ability to read

and chat and "extends from the modestly titillating to the hardest-

to retrieve material and thereby to use the Internet

core."(11) These files are created, named, and posted in the same

unattended."(17)

Systems have been developed to help parents control the material

verification is only feasible, however, either in connection with a

that may be available on a home computer with Internet access. A

commercial transaction in which the card is used, or by payment to

system may either limit a computer's access to an approved list of

a verification agency. Using credit card possession as a surrogate

sources that have been identified as containing no adult material,

for proof of age would impose costs on non-commercial Web sites

it may block designated inappropriate sites, or it may attempt to

that would require many of them to shut down. For that reason, at

block messages containing identifiable objectionable features.

the time of the trial, credit card verification was "effectively

"Although parental control software currently can screen for certain

unavailable to a substantial number of Internet content providers."

suggestive words or for known sexually explicit sites, it cannot now

Id., at 846 (finding 102). Moreover, the imposition of such a

screen for sexually explicit images."(18) Nevertheless, the

requirement "would completely bar adults who do not have a

evidence indicates that "a reasonably effective method by which

credit card and lack the resources to obtain one from accessing

parents can prevent their children from accessing sexually explicit

any blocked material."(22)

and other material which parents may believe is inappropriate for

Commercial pornographic sites that charge their users for access

their children will soon be available."(19)

have assigned them passwords as a method of age verification.

Age Verification

The record does not contain any evidence concerning the reliability

The problem of age verification differs for different uses of the

of these technologies. Even if passwords are effective for

Internet. The District Court categorically determined that there "is

commercial purveyors of indecent material, the District Court

no effective way to determine the identity or the age of a user who

found that an adult password requirement would impose significant

is accessing material through e-mail, mail exploders, newsgroups

burdens on noncommercial sites, both because they would

or chat rooms."(20) The Government offered no evidence that

discourage users from accessing their sites and because the cost

there was a reliable way to screen recipients and participants in

of creating and maintaining such screening systems would be

such fora for age. Moreover, even if it were technologically feasible

"beyond their reach."(23)

to block minors' access to newsgroups and chat rooms containing

In sum, the District Court found:

discussions of art, politics or other subjects that potentially elicit

"Even if credit card verification or adult password verification were

"indecent" or "patently offensive" contributions, it would not be

implemented, the Government presented no testimony as to how

possible to block their access to that material and "still allow them

such systems could ensure that the user of the password or credit

access to the remaining content, even if the overwhelming

card is in fact over 18. The burdens imposed by credit card

majority of that content was not indecent."(21)

verification and adult password verification systems make them

Technology exists by which an operator of a Web site may

effectively unavailable to a substantial number of Internet content

condition access on the verification of requested information such

providers." Ibid. (finding 107).

as a credit card number or an adult password. Credit card

II

The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat.

"(ii) initiates the transmission of,

56, was an unusually important legislative enactment. As stated on

"any comment, request, suggestion, proposal, image, or other

the first of its 103 pages, its primary purpose was to reduce

communication which is obscene or indecent, knowing that the

regulation and encourage "the rapid deployment of new

recipient of the communication is under 18 years of age,

telecommunications technologies." The major components of the

regardless of whether the maker of such communication placed the

statute have nothing to do with the Internet; they were designed to

call or initiated the communication; . . . . .

promote competition in the local telephone service market, the

"(2) knowingly permits any telecommunications facility under his

multichannel video market, and the market for over-the-air

control to be used for any activity prohibited by paragraph (1) with

broadcasting. The Act includes seven Titles, six of which are the

the intent that it be used for such activity,

product of extensive committee hearings and the subject of

"shall be fined under Title 18, or imprisoned not more than two

discussion in Reports prepared by Committees of the Senate and

years, or both."

the House of Representatives. By contrast, Title V-known as the

The second provision, 223(d), prohibits the knowing sending or

"Communications Decency Act of 1996" (CDA)-contains provisions

displaying of patently offensive messages in a manner that is

that were either added in executive committee after the hearings

available to a person under 18 years of age. It provides:

were concluded or as amendments offered during floor debate on

"(d) Whoever-

the legislation. An amendment offered in the Senate was the

"(1) in interstate or foreign communications knowingly-

source of the two statutory provisions challenged in this case.(24)

"(A) uses an interactive computer service to send to a specific

They are informally described as the "indecent transmission"

person or persons under 18 years of age, or

provision and the "patently offensive display" provision.(25)

"(B) uses any interactive computer service to display in a manner

The first, 47 U. S. C. A. 223(a) (Supp. 1997), prohibits the knowing

available to a person under 18 years of age,

transmission of obscene or indecent messages to any recipient

"any comment, request, suggestion, proposal, image, or other

under 18 years of age. It provides in pertinent part:

communication that, in context, depicts or describes, in terms

"(a) Whoever-

patently offensive as measured by contemporary community

"(1) in interstate or foreign communications-

standards, sexual or excretory activities or organs, regardless of

.....

whether the user of such service placed the call or initiated the
communication

"(B) by means of a telecommunications device knowingly"(i) makes, creates, or solicits, and