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Journal of Technology Law & Policy

Document Type

Article

Abstract

A computer equipped with a modem for communications truly gives one an eye on the world. With a computer and a modem, access to the Internet is relatively simple, and access to the Internet means access to an immense amount of information. Nor is the Internet merely a giant, online library. The Internet serves as the communications medium for literally tens of thousands of global conversations, political debates, and social dialogues.

With such capacity, a computer with a modern for accessing the Internet is understandably considered a great good. Educators rightly have recommended equipping students with the means to take advantage of that good.

But suppose that a greater good, such as Internet access to the world, was used for purposes not so good. In the Months leading up to the enactment of the Communications Decency Act of 1996, Congress was presented substantial evidence that computers, modems, computer networks and the Internet were being used to communicate obscene and indecent messages and images. Having apprised itself of the pervasiveness of indecent images and messages purveyed through computer communications, Congress enacted the CDA. Congress crafted the CDA to insure that, while adults remained free to create, view, read and exchange indecent computer communications, minor children would be shielded from such indecency.

Those who have challenged the Communications Decency Act of 1996 have argued that the Act is not the least restrictive means to the end of protecting children from exposure to indecent online communications. Congress was presented with substantial evidence, however, that present, nongovernmental approaches were inadequate to prevent indecent communications to, and with, minor children. Present marketplace approaches place all burdens and responsibility for exposure to indecent communications on those who receive such communications, even unintentionally. Approaches such as the “parental control” features of the computer online services and the computer software filtering programs, have not provided a sufficient level of satisfaction of the government interest in protecting minor children from exposure to indecent communications.

The CDA survives facial constitutional challenge. The CDA does not ban all indecent computer communications; it only requires those who originate such communications to take responsibility for their availability to minor children. The CDA employs the least restrictive means to limit the accessibility of such materials to children, while leaving in place the opportunity to receive indecent communications and to communicate for those adults who wished to do so. The CDA survives scrutiny of the sort employed by the Supreme Court in Sable Communications v. FCC v. Pacifica Foundation.

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