Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions on the First Amendment and the CDA

1.  In Reno II (the decision partially invalidating the CDA), the Supreme Court reaffirmed the three-part test of Miller v. California as the fundamental test for obscene—and therefore unprotected—speech.  See Reno II, 521 U.S. at 898.  As noted in Reno II, the Miller test has three parts, as follows:
    "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
As the Reno II Court saw it, the CDA lacks two of these factors and is not entirely congruent with Miller on the third.  See Reno II, 521 U.S. at 898-899.

2.  Miller, of course, provides the test for obscene material, which government can regulate or even ban without objection under the First Amendment.  If Pacifica and Reno II had dealt with obscene matter only, they would have been much shorter opinions.  What made those decisions difficult was the government's attempt to regulate matter that falls short of obscenity—matter that the statute in Pacifica labeled as "indecent" and that the CDA tried to identify more precisely.

Regulation of speech based upon its "indecency" is content-based regulation.  Therefore, well-settled First-Amendment doctrine applies so-called "strict scrutiny" to any attempt by Congress to regulate it.  Under strict scrutiny, the regulation must be justified by a compelling governmental interest, and the means used to advance that interest must be the least restrictive alternative.  This is a very demanding test.

In Pacifica and Reno II, the government asserted two compelling interests as justification for the regulation.  The first is the desire to protect children from inappropriate material.  The second interest—closely related to the first—is parents' constitutional right to bring up their children as they see fit.

Both of these interests have constitutional dimension.  However, unlike protecting speech, neither is explicit in the Constitution.  Rather, both can be viewed as implicit or "penumbral" rights derived from the First, Fourth, and Fifth Amendments to the Constitution in a manner similar to the right to privacy.

Does it matter that freedom of speech is explicit in the text of the Constitution and these other interests are only implicit?  Or are all constitutional values of equal dignity, whether express or implied?  More fundamentally, should the Court, as it addresses cases like these, attempt to weigh the importance of conflicting values and their centrality to ordered democracy and decide which value trumps the other?  Or should the Court try to reconcile and advance all constitutional values, even when they conflict, regardless of how hard doing so may seem?

3.  In both Pacifica and Reno II, all Justices appeared to agree that the government cannot entirely deny adults access to protected material (including "indecent" but non-obscene speech) merely because it is inappropriate for children.  Yet these cases left unclear the extent to which government may burden, but not entirely prohibit, adults' access to nonobscene speech in order to protect children.  The plurality opinion in Pacifica endorsed regulation that might limit adults' access to Carlin's dirty-words monologue to live performances, transcripts, and tangible recordings.  The dissenters vehemently objected to this limitation, viewing it as too great an infringement on the First-Amendment rights of adults.  In partly striking down the CDA, the Reno II Court rejected the government's position on burdening adults' rights as "equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books."   Reno II, 521 U.S. at 903.  The obvious implication is that goverment may not ban one medium for expressing protected speech merely because another medium is available.

Would the Court today likely approve a substantial burden on communication to adults in order to protect children?  Or was the result in Pacifica based upon the coalescence of several factors—spectrum scarcity, traditional governmental regulation, and the "lightness" of the warning-letter sanction there at issue?  Is the Court likely to approve a substantial burden on protected communication to adults backed by serious criminal sanctions?

4.  In partly striking down the CDA, the majority in Reno II made much of the burden that the law would impose upon noncommercial enterprises and individual adults, including parents.  See Reno II, 521 U.S. at 901-902.  Would a restriction to commercial activities overcome these objections?  Would a restriction to commercial activities overcome the objection that the regulation burdens adults' access to protected material?

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