Beyond the Communications Decency Act: Constitutional Lessons of the Internet

By Solveig Bernstein

On February 8, 1996, the Communications Decency Act was enacted into law. The law criminalizes the use of any computer network to display “indecent” material, unless the content provider uses an “effective” method to restrict access to that material to anyone under the age of 18. But there is no affordable, effective way for nonprofit or low‐profit speakers to restrict children’s access to such a broad, ill‐defined category of material. Thus, the statute effectively bans much speech from the Internet and other networks. The Internet promised the ordinary citizen a low‐cost method of reaching an audience beyond immediate family, friends, and neighbors. Legislation like the CDA betrays that hope and is clearly unconstitutional.

No regulation of computer network indecency, however carefully tailored, should pass constitutional scrutiny. First, no legislator has been able to define indecency coherently. Such regulation is inherently unfair, especially as applied to spontaneous, casual speech of the sort that the Internet facilitates between unsophisticated and noncommercial speakers. Second, government cannot legitimately claim that it has any interest in content control, when civil society has solved the perceived problem on its own. Here, private sector solutions include both software filters that parents can use to screen out offensive material and Internet service providers who provide access only to child‐safe materials.