Burning the Village to Roast the Pig: Congressional Attempt to Regulate "Indecency

Journal of Intellectual Property Law Volume 4 | Issue 2 Article 8 March 1997 Burning the Village to Roast the Pig: Congressional Attempt to Regulate "Indecency" on the Internet Rejected in ACLU v. Reno James M. McGee Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Constitutional Law Commons, First Amendment Commons, and the Intellectual Property Law Commons Recommended Citation James M. McGee, Burning the Village to Roast the Pig: Congressional Attempt to Regulate "Indecency" on the Internet Rejected in ACLU v. Reno, 4 J. Intell. Prop. L. 437 (1997). Available at: https://digitalcommons.law.uga.edu/jipl/vol4/iss2/8 This Recent Developments is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . McGee: Burning the Village to Roast the Pig: Congressional Attempt to Re BURNING THE VILLAGE TO ROAST THE PIG: CONGRESSIONAL ATTEMPT TO REGULATE "INDECENCY" ON THE INTERNET REJECTED IN ACLU V. RENO I. INTRODUCTION This Congress is poised on the brink of not merely infringing but willfully and deliberately violating the basic intent of the First Amendment, which is that public, noncommercial speech about our lives and our world can and will not be screened, examined and even prosecuted. The greatness of the American system is founded on the belief, so severely being tested yet again, that any speech which does not cause direct, provable harm (such as direct incitement to riot) cannot be restricted. Who among us thinks they know so well what is best for our people, our nation, our world that they would restrict the ability of others to speak and be heard? The zealots among us will. They are calling us, reluctant as we are, to debate and decide whether our ability to communicate with each other is not a fundamental right of our existence.' Can Congress regulate communications over the Internet that might be deemed "indecent" or "patently offensive" for minors? On June 11, 1996 the United States District Court for the Eastern District of Pennsylvania answered this question with a resounding no.2 Holding that certain provisions of the 1996 Communications Decency Act ("CDA") are unconstitutional, the court enjoined "Attorney General Janet Reno, and all acting under her direction ' Richard N. Coglianese, Comment, Sex, Bytes and Community Entrapment: The Need for a New Obscenity Standard for the Twenty-First Century, 24 CAP. U. L.REV. 385, 412 n.193 (1995) (citing Robert Rossney, Congress Wants to Restrict Free Speech on the Net, S.F. CHRON., Dec. 14, 1995, at D3 (noting one Internet user's opinion of the then-proposed Communications Decency Act)). 2 ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa.), cert. granted, 117 S. Ct. 554 (1996). 437 Published by Digital Commons @ Georgia Law, 1997 1 Journal of Intellectual Property Law, Vol. 4, Iss. 2 [1997], Art. 8 438 J. INTELL. PROP.L. [Vol. 4:437 and control ... from enforcing, prosecuting, investigating or reviewing any matter premised upon..." the challenged provisions of the CDA. 3 Besides the obvious importance of this decision for holding that key provisions of the CDA are unconstitutional, other aspects of this opinion are significant. The court's detailed analysis of the creation and nature of the Internet, which resulted from extensive evidentiary hearings, will likely be frequently cited to as the authoritative definition of this new and evolving method of communication.4 This fact finding was instrumental in developing the court's recognition of the Internet as a unique medium worthy of the highest level of First Amendment protection. The Government appealed to the Supreme Court for review of the ACLU v. Reno decision, and the Court has granted certiorari.5 When this case is reviewed by the Court, the Eastern District of Pennsylvania's decision should be affirmed because the CDA is an unconstitutional infringement on free speech. While the Government clearly has an interest in protecting children from some online material, the CDA is unable to pass constitutional muster because it is overly broad, vague and not narrowly tailored. Further, the negative impacts from restricting indecent speech are too severe to ever be outweighed by countervailing Government interests under a constitutional balancing analysis. 'Id. at 883. A separate challenge to the CDA, filed in the Southern District of New York, also resulted in a preliminary injunction on July 29, 1996. See Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996) (holding that § 223(d) is an overbroad ban on constitutionally protected communications among adults but declining to hold that the provision is void for vagueness). ' Several courts have already cited ACLU v. Reno. See Playboy Enters. v. Chuckleberry Publishing, 939 F. Supp. 1032, 1034-35 n.2 (S.D.N.Y. 1996) (citing ACLU v. Reno as giving a thorough analysis of the Internet); Panavision Int'l v. Toeppen, 938 F. Supp. 616, 618 (C.D. Cal. 1996) (citing ACLU v. Reno); Malarkey-Taylor Assocs. v. Cellular Telecommunications Indus. Assoc., 929 F. Supp. 473, 476 n.1 (D.D.C. 1996) (citingACLUv. Reno's findings of fact concerning the nature of the Internet). " Direct appeal to the Supreme Court is available through § 561(b) of the CDA, which provides in part: "Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court ... holding this title or an amendment made by this title, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court." Communications Decency Act, Pub. L. No. 104-104, § 561(b), 110 Stat. 133, 143 (1996). https://digitalcommons.law.uga.edu/jipl/vol4/iss2/8 2 McGee: Burning the Village to Roast the Pig: Congressional Attempt to Re 1997] ACLU V. RENO 439 II. ACLU v. RENO A. FACTUAL HISTORY The Communications Decency Act 6 was signed into law by President Clinton on February 8, 1996. On the day the CDA was signed, the American Civil Liberties Union ("ACLU") and the American Library Association, joined by numerous individuals and organizations associated with the computer and communications industries, filed suit against Attorney General Janet Reno and the United States Department of Justice (collectively "the Government") to enjoin enforcement of certain provisions of the CDA.7 Judge Ronald L. Buckwalter of the Eastern District of Pennsylvania granted the ACLU a limited temporary restraining order on February 15, 1996.8 On the day the temporary restraining order was issued, Chief Judge Dolores K. Sloviter of the United States Court of Appeals for the Third Circuit convened a three-judge panel pursuant to section 561(a) of the CDA 9 at the request of the parties and the district court.1 ° The panel consisted of (...truncated)