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?
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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