The emergence of the internet as a widespread form of communication at the end of the 20th century prompted questions of how to apply legal principles developed for print and broadcast to the medium. In Reno v. American Civil Liberties Union, a 1997 decision, the Supreme Court rejected the notion that the internet as a medium should be subject to more relaxed First Amendment scrutiny.1 Reno involved challenges to the Communications Decency Act, a federal law that created criminal penalties for distributing “indecent” or “patently offensive” content over the internet to individuals under 18 years old.2

, tit. V, § 502, 110 Stat. 133, 133–34 (1996). Arguing for the statute’s constitutionality, the United States relied on the Supreme Court’s decision in FCC v. Pacifica Foundation upholding the regulation of indecent broadcasting.3

The Court concluded that the unique features of broadcast media identified in Pacifica and Red Lion Broadcasting Co. v. FCC4 —including a “history of extensive Government regulation,” a “scarcity of available frequencies,” and an “invasive” nature— “are not present in cyberspace.” 5 Rejecting the scarcity rationale described in Red Lion, the Court observed that the internet “provides relatively unlimited, low-cost capacity for communication of all kinds.” 6 The Court also determined that the internet was a less “invasive” means of communication than broadcast, observing that internet users typically must take affirmative steps to view particular internet content.7

Having distinguished the internet from broadcast media, the Supreme Court engaged in a routine First Amendment analysis. The Court determined that the Communications Decency Act posed a content-based restriction on speech and was therefore subject to strict scrutiny.8 As discussed in other essays, strict scrutiny requires the government to demonstrate that a law is the “least restrictive means” of advancing a “compelling” governmental interest.9

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/. Applying this standard, the Court held that the government had not met this burden,10 particularly in light of the law’s potential impact on lawful speech between adults.11 The Court further suggested that the law’s vagueness with respect to its prohibited material posed free speech concerns.12

Beyond its decision in Reno at the end of the 20th century, the Supreme Court has addressed the application of general free speech principles to the internet as a medium on some occasions. In a 2002 decision, the Court held that a federal law’s use of constitutional standards developed for obscenity distributed in print was not per se unconstitutional as applied to the internet.13 The law at issue criminalized the online distribution of “material that is harmful to minors,” a term that was defined in part as material that “the average person, applying contemporary community standards, would find” appeals to the prurient interest of minors.14

. >https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812.

While a lower court had determined that the use of “community standards” was inappropriate as applied to a geographically limitless medium like the internet,15 the Court held that the law’s use of “community standards” was insufficient by itself to render the law unconstitutional.16 However, the Court splintered as to how to apply its precedents to the internet. Three Justices observed that the Court’s earlier precedents had applied “community standards” analysis to material capable of reaching a national audience based on the standards of the community where the material was received, and the Justices saw no reason to treat the internet differently.17 Two Justices in concurring opinions advocated adopting a nationwide “community standard” to assess online material.18 In a subsequent 2004 decision, the Court affirmed a preliminary injunction preventing enforcement of the law based on the Court’s application of strict scrutiny analysis and its determination under this standard that the law was not narrowly tailored.19

Some of the Court’s decisions addressing free speech on the internet have directly or indirectly confronted the question of how to apply the doctrine of the public forum to the medium. In a 2003 decision upholding a federal law that conditioned the receipt of federal funding for schools and libraries on the installation of software to block and filter pornographic material, a four-Justice plurality held that internet access provided by public libraries is not a public forum.20 In a 2017 decision striking down a state law prohibiting sex offenders from accessing social media website, the court identified the internet as one of “the most important places . . . for the exchange of views,” underscoring the medium’s importance in modern free speech doctrine.21

, 582 U.S. 98, 104 (2017). The Court’s opinion analogized the internet to “a street or a park” but did not otherwise engage in any public forum analysis. Id. For further discussion, see

Public and Nonpublic Forums

, >https://constitution.congress.gov/browse/essay/amdt1-7-7-2/ALDE_00013543/.

Footnotes

1

521 U.S. 844, 868–69 (1997).

2

Pub. L. No.

104-104

, tit. V, § 502, 110 Stat. 133, 133–34 (1996).

3

438 U.S. 726 (1978); see Error! Reference source not found.

4

395 U.S. 367 (1969).

5

Reno, 521 U.S. at 868.

6

Id. at 870.

7

Id. at 869.

8

Id. at 868.

9

Sable Commc’ns of Cal. V. FCC, 492 U.S. 115, 126 (1989). See generally

Overview of Content-Based and Content-Neutral Regulation of Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/.

10

Reno, 521 U.S. at 879.

11

Id. at 875–76.

12

Id. at 871–73. For a discussion of vagueness as it relates to free speech, see

Vagueness, Statutory Language, and Free Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-2-2/ALDE_00013539/.

13

Ashcroft v. ACLU, 535 U.S. 564, 585 (2002).

14

Id. at 570. This “community standards” language was adopted from the Supreme Court’s test for obscenity articulated in Miller v. California, 413 U.S. 15, 24 (1973). See generally

Obscenity

. >https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812.

15

Ashcroft, 535 U.S. at 575.

16

Id. at 585.

17

Id. at 580–81 (plurality opinion) (citing Hamling v. United States, 418 U.S. 87, 106 (1974) and Sable Comm’cns of Cal., Inc. v. FCC, 492 U.S. 115, 125–26 (1989)).

18

Id. at 586 (O’Connor, J., concurring); id. at 589–90 (Breyer, J., concurring).

19

Ashcroft v. ACLU, 542 U.S. 656, 660 (2004).

20

United States v. Am. Lib. Ass’n, Inc., 539 U.S. 194, 205 (2003) (plurality opinion). In a concurring opinion, Justice Breyer agreed with the plurality’s public forum analysis, but would have held the law constitutional using a different approach. Id. at 215–16 (Breyer, J., concurring).

21

Packingham v. North Carolina

, 582 U.S. 98, 104 (2017). The Court’s opinion analogized the internet to “a street or a park” but did not otherwise engage in any public forum analysis. Id. For further discussion, see

Public and Nonpublic Forums

, >https://constitution.congress.gov/browse/essay/amdt1-7-7-2/ALDE_00013543/.