A. Federal

In 1997 Congress enacted the Communication Decency Act, 47 U.S.C. § 223, (the "CDA") passed as part of the Telecommunications Acts of 1996. The Act prohibited the knowing transmission of "obscene or indecent" comments to any person under the age of 18 (47 U.S.C. § 223 (a)1B) and use of the Internet to send or display any comment or image that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" to any person under the age of 18 (47 U.S.C. § 223 (d)1B). Both the District Court for the Eastern District of Pennsylvania and the U.S. District Court for the Southern District of New York ruled that the Communication Decency Act prohibitions were unconstitutional.

In Reno v. ACLU, 521 US 844 (1997), a seven-Justice majority held that the Internet was entitled to the highest level of First Amendment protection. The Supreme Court struck down the CDA concluding that it constituted an overbroad restriction on First Amendment rights. The Court decided that the prohibition on "indecent" and "patently offensive" transmissions was so vague that it would create uncertainty among speakers, and, as a result, would have an "obviously chilling effect on free speech." The decision stated that although the government has an interest in protecting children from potentially harmful materials, the CDA pursued that interest by suppressing a large amount of speech adults had a right to send or receive. The Supreme Court was especially concerned about chilling informational and educational sites.

B. New York State

Numerous states, including New York, have attempted to regulate the material distributed to minors over the Internet. The New York Decency Law, Penal Law 235.21(3), which is similar to the Federal Communications Decency Act, became effective in November 1996. The statute prohibits the use of computer networks to transmit material that "depicts actual or simulated nudity, sexual contact or sadomasochistic abuse, and which is harmful to minors." In American Library Association v. Pataki, the United States District Court for the Southern District of New York issued a preliminary injunction prohibiting enforcement of the New York Decency Law. The ruling rested on the Commerce Clause. It held that the law violated the Commerce Clause because it represented an unconstitutional projection of New York law into conduct occurring outside the state. As there was no way for a distributor to block communications to New York recipients, the law extended beyond the limits of intrastate communication. The ALA v. Pataki court stated that "the Internet is an area of commerce that should be marked off as a 'national preserve' to protect online speakers from inconsistent laws that could paralyze development of the Internet altogether." The court refrained from deciding the case on the First Amendment grounds because at the time the Supreme Court had heard argument on the Communications Decency Act in Reno but had not yet rendered a decision.