The Rehnquist Court (1986–2005)

First Amendment

How did the Rehnquist Court deal with regulations on Internet pornography?

The Rehnquist Court was very protective of Internet speech in the face of federal laws designed to protect children from harmful material online. In its 1997 decision Reno v. ACLU, the Court invalidated key provisions of the Communications Decency Act that prohibited the online display of indecent and patently offensive material. The Court reasoned that the law would stifle the free-speech rights of adults in its efforts to protect minors. The Court also pointed out that the regulations could prohibit speech that could actually be helpful and informative to older minors. Finally, the Court pointed out that the law was too vague, in part because it did not define what expression was indecent. The case is important because the Court said that speech on the Internet was entitled to the highest degree of First Amendment protection akin to that of the print media.

The Communications Decency Act represented Congress’s first attempt at restricting pornography on the Internet. After Reno v. ACLU, Congress created a narrower law called the Child Online Protection Act (COPA). This law criminalized the knowing transmission of online material to minors for commercial purposes that is “harmful to minors.” In its 2004 decision ACLU v. Ashcroft, the U.S. Supreme Court agreed with lower federal courts that the government could not enforce COPA because of First Amendment concerns. The Supreme Court determined 5–4 that there were “a number of plausible, less restrictive alternatives” to COPA, including filtering products, that parents can purchase to filter the Internet.

The Court did uphold one federal law dealing with pornography on the Internet. In United States v. American Library Association (2003), the Court upheld by a 6–3 vote the Children’s Internet Protection Act, a federal law that required public libraries and schools to filter the Internet in order to receive federal funds for Internet hook-ups. “Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion,” Chief Justice William Rehnquist wrote in his plurality opinion. “We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.”


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