Communications Decency Act

The Communications Decency Act (CDA) was enacted by the U.S. Congress in 1996 in response to concerns about minors' access to pornography via the Internet. The CDA was Title V of the Telecommunications Act of 1996, but in two separate cases, Reno v. Shea of 1997 and Nitke v. Gonzalez of 2005, federal judges found that the indecency provisions were found to abridge “the freedom of speech” protected by the First Amendment to the U.S. Constitution. Both decisions were affirmed by the U.S. Supreme Court without comment.

The CDA has become a powerful example of federal regulation in place of an industry's self-regulatory activities. The CDA was enacted on February 1, 1996, as representatives and senators prepared for reelection campaigns the following fall. The CDA was intended to show voters that Congress understood the risks of a rapidly growing emerging technology.

The CDA created a criminal cause of action against those who knowingly transmit “obscene” or “indecent” messages to a recipient under the age of 18 years. It also prohibited knowingly sending or displaying a “patently offensive” message containing sexual or excretory activities or organs to a minor. The CDA did, however, provide a defense to senders or displayers of online “indecent” materials—if they took reasonable good faith efforts to exclude children.

This legislation had numerous problems that affected both Internet service providers (ISPs) and businesses. First, there was no way for senders or displayers to know if they were within the exception. At that time, it was difficult and cumbersome for a sender to screen out minors. The displayers could ask for a credit card number as validation, but it would not allow them to conduct business with those who did not have a credit card and were over the age of 18 years. In addition, the terms indecent and patently offensive were too ambiguous, and the CDA as a whole placed an undue burden on free speech.

These portions, especially those regarding the phraseology of the CDA, were quickly fought by civil rights groups and free speech advocates and were challenged in a court of law by numerous plaintiffs. The case was ultimately brought to the Supreme Court in Reno v. ACLU, which was argued on March 16, 1997, and decided on June 26, 1997. The provisions in Sections 223 of Title 17 U.S. Code Annotated regarding indecent and patently offensive materials were found to abridge “the freedom of speech” protected by the First Amendment to the U.S. Constitution.

Although the portions of the CDA regarding indecent conduct were overturned, there are provisions within the CDA that remain intact. The portions of Section 223 regarding obscene content were challenged in Nitke v. Ashcroft, but Nitke was unable to meet the burden of proof necessary to support her claim. On July 26, 2005, an appeals court ruled that obscene content is not protected by the First Amendment, but that Nitke's challenge was to the reliance on community standards to determine whether her online content was obscene. The U.S. Supreme Court upheld this decision in 2006.

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