Government Regulation of Online Speech
There are different standards for different communications mediums regarding what types of regulation are permissible. With broadcast radio and television, for example, the Supreme Court held in FCC v. Pacifica that the government may prohibit the broadcast of indecent material during times of the day when children are more likely to be watching. The Court’s decision was based on two characteristics of broadcast radio and television: it is “uniquely pervasive,” being constantly beamed into people’s homes and accessible it at any time, and it is very accessible to children, who could be exposed to indecent content even before they learned to read. In contrast, indecent material receives a higher level of protection when it is conveyed over the phone, as the Court decided in the Sable Communications dial-a-porn case; when individuals must take specific action to access the material, unsuspecting listeners can easily avoid the indecent material.
In the Reno v. ACLU case of 1997, the Supreme Court was faced with deciding what standard should be applied to government regulation of speech on the Internet. At issue was the Communications Decency Act, which was aimed at restricting access to indecent material online. The government argued that, like broadcast radio and television, the Internet was pervasive and easily accessible by children, and thus the government should have the same broad power to limit indecent content online, in order to protect children.
Fortunately, the Court rejected this argument, finding that the Internet is not pervasive in the way that broadcast TV and radio is, and that users seldom encounter indecent material online accidentally. The Court recognized that the Internet presented a new communications medium that allowed more people than ever before to communicate about all kinds of topics, and held that the Internet should receive full First Amendment protection. The material banned by the CDA was clearly protected, and because the effect of the CDA would be to reduce all content on the Internet to the level appropriate for children, the Court overturned the law.
“Fortunately, the Court rejected this argument, finding that the Internet is not pervasive in the way that broadcast TV and radio is, and that users seldom encounter indecent material online accidentally. ”
However, while the government's power to regulate speech by the internet has been curtailed by courts, this does not mean that online service providers cannot regulate speech placed on their privately-owned websites. To read more, see our section on Online Contracts / Terms of Service.
Related Cases
Ashcroft v. ACLU--A challenge to the Child Online Protection Act, which regulated online pornography.
Nitke v. Gonzalez--Nitke, a photographer, challenged the Communications Decency Act (CDA) which prohibited the transmission of obscene materials to minors.
Reno v. ACLU--A challenge to the Communications Decency Act (CDA), which criminalized the transmission of obscene or indecent messages to minors.
United States v. Stevens--Stevens was criminally charged over a website and business which sold videos of dog fights.
United States v. American Library Association, Inc.--A challenge to the Children Internet Protection Act(CIPA) which regulated the accessibility of pornography in pubic libraries.