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The CDA, passed in 1996, not only criminalized the transmission of "indecent" material to minors over the Internet; it also made it a crime to fail to prevent minors from viewing anything that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." But the Internet is not like a bookshop or a movie theater where one can easily distinguish between minors and adults; the ages and identities of people who visit a Web site or a chat room aren't readily ascertained.
So the CDA effectively banned "indecency" from cyberspace altogether.
"Variable obscenity" a la Ginsberg relieved the government of having to prove harm, but it still only allowed the suppression of works found to be "prurient" and lacking in "redeeming value" for kids. Pacifica decision ten years later, permitting censorship of "indecent" on-air language, signaled a seismic constitutional change because it dispensed with the prurience and lack of value requirements of even "variable" obscenity law.
Rationalizing the result in Pacifica, Justice John Paul Stevens assumed that indecent speech was harmful to minors and had only peripheral First Amendment protection. government was now empowered to ban constitutionally protected speech, on a theory that subordinated the rights of adults to the nineteenth-century logic of Regina v. Congress soon began to apply the indecency standard to other media. FCC, the Supreme Court invalidated a law banning "indecent" telephone services while remarking that government does have a compelling interest in barring minors from offensive sexual speech.
Rather than increasing opportunities for kids to learn and talk about sex, America seems poised to close them up.
This trend is especially disappointing because of the shift toward a more nuanced view of sexual speech in the Court's Reno decision.
The Reno decision has been rightly acclaimed as a landmark, establishing full First Amendment protection for cyberspace, but an important aspect of the ruling has yet to be fully understood.Although Pacifica only applied to broadcasting and left the jurisprudence of the print world intact, the decision still marked an important break with the Court's previous rulings. There was no evidence suggesting what harm would be caused, nor did the Court rely on psychological literature. But Justice Brennan had crafted Ginsberg on the explicit premise that "variable obscenity" was not constitutionally protected, whereas indecency was.This was no trivial legalism, for the lack of constitutional protection for "variable obscenity" meant that the government could suppress it without meeting the "compelling interest" test.I have been through a few tough years and would love to give advice I wish I had!When the Supreme Court overturned the Communications Decency Act, it was a triumph for civil liberties. What harm to minors do various kinds of sexual speech actually cause?