The Supreme Court faces special challenges in dealing with regulation of speech on the Internet. The Internet’s unique qualities, such as its ability to spread potentially dangerous information quickly and widely, as well as its easy accessibility by minors, have prompted lawmakers to call for tighter restrictions of Internet speech. Others argue that Congress and the courts should refrain from limiting the possibilities of the Internet unnecessarily and prematurely because it is a new, technologically evolving medium. For its part, the Supreme Court continues to balance precedents with the novel technological features of the medium.

Congress has attempted to protect minors from harmful content on the Internet

One major area of Internet regulation that Congress has entered is protecting minors from pornography and other indecent or obscene speech on the Internet. For example, the 1996 Communications Decency Act (CDA) prohibited “the knowing transmission of obscene or indecent messages” over the Internet to minors. However, in Reno v. American Civil Liberties Union (1997) the Supreme Court struck down this law as being too vague. The Court held that the regulation created a “chilling effect” on speech and prohibited more speech than necessary to achieve the objective of protecting children. The Court also rejected the government’s arguments that speech on the Internet should receive a reduced level of First Amendment protection, akin to that of the broadcast media. Instead, the Court ruled that speech on the Internet should receive the highest level of First Amendment protection—like that extended to the print media.

In response to the Court’s ruling, in 1998 Congress passed the Child Online Protection Act (COPA), which dealt only with minors’ access to commercial pornography and provided clear methods to be used by site owners to prevent access by minors. However, in 2004 the Court struck down COPA (Ashcroft v. American Civil Liberties Union), arguing that less restrictive methods such as filtering and blocking should be used instead. The Court contended that these alternative methods were at least in theory more effective than those specified in COPA because of the large volume of foreign pornography that Congress cannot regulate.

Congress has also attempted to regulate virtual child pornography

Congress also ventured into the area of child pornography, passing the Child Pornography Prevention Act (CPPA) in 1996. The CPPA criminalized virtual child pornography—that is, pornography that sexually depicts, or conveys the impression of depicting, minors. Although the act targeted computer-generated or altered works advertised as child pornography, in Free Speech Coalition v. Reno (9th Cir. 1999) the federal appeals court found some language in the statute to be so overly broad and vague that much protected speech would be covered under the CPPA. The court noted that the state’s interest in protecting children from the physical and psychological abuse arising from their participation in the making of pornography—the basis for its ban in New York v. Ferber (1982)—was not present in virtual child pornography.

People use computers to access the Internet at the Boston Public Library, in Boston, 2003. The Supreme Court said public libraries must make it harder for Internet surfers to look at pornography - or they will lose government funding. Justices ruled in United States v. American Library Association (2003) that the federal government can withhold money from libraries that won't install blocking devices. (AP Photo/Steven Senne, used with permission from the Associated Press.)

What constitutes true threats on the Internet?

U.S. courts have also dealt with other areas of Internet speech that traditionally have been less protected or unprotected under the First Amendment. Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002), decided by an en banc panel of the Ninth Circuit Court of Appeals, revolved around what constitutes dangerous speech and a true threat in the context of the Internet.

The American Coalition of Life Activists (ACLA) posted a Web site that listed the personal contact information of doctors who performed abortions, including details such as the names of their children. The names of doctors who had been murdered were crossed off and the names of those who had been wounded by anti-abortion activists were grayed. Although the site did not contain explicit threats, opponents argued that it was akin to a hit list, and the doctors on the list believed it to be a serious threat to their safety.

The appeals court held that the ACLA could be held liable for civil damages, and that the Web site did not contain “political speech” protected under the First Amendment. The Court wrote: “It is the use of the ‘wanted’-type format in the context of the poster pattern—poster followed by murder—that constitutes the threat.” The posters were not “political hyperbole” because “[p]hysicians could well believe that ACLA would make good on the threat.” Thus it was a true threat, not protected as political speech.

Courts have not found all speech on the Internet that might be called threatening to be unprotected under the First Amendment right of freedom of speech. For example, in United States v. Alkhabaz (6th Cir. 1997) a university student, Abraham Alkhabaz, posted sexually explicit, violent stories on the Internet and also exchanged e-mails with another man that appeared to be a plan to act out one story by attacking a woman at Alkhabaz’s university. In court, Alkhabaz claimed the e-mails were mere fantasy, and the court agreed, arguing that the messages did not constitute a true threat because they were not “conveyed to effect some change or achieve some goal through intimidation.”

Court decided on content filters for public library computers

In yet another area of Internet usage—protecting children from access to inappropriate obscene and nonobscene materials on public library computers—the Supreme Court allowed the federal government to require libraries to install filters on such computers as a condition for receiving federal aid to purchase computers. But the three dissenting justices in United States v. American Library Association (2003) viewed the requirement of filtering devices on library computers, which both adults and children must request to be unlocked, to be an overly broad restriction on adult access to protected speech.

This article was originally published in 2009. Ronald Kahn is a Professor Emeritus in the Department of Politics at Oberlin College.

Send Feedback on this article