Content Regulation / Censorship, Hate Speech, Indecency / Obscenity, Religious Freedom
Jersild v. Denmark
Closed Expands Expression
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The U.S. Supreme Court affirmed the provisions of the 1996 Communications Decency Act as unconstitutional because they amounted to a content-based blanket restriction of free speech. The Act criminalized the intentional transmission of “obscene or indecent” messages as well as the transmission of information which depicts or describes “sexual or excretory activities or organs” in a manner deemed “offensive” by community standards. The ACLU challenged the constitutionality of two provisions under the First Amendment. The Court reasoned that the Act failed to define “indecent” communications, and unlike in broadcast regulations, there was no limitation on the applicability of the restrictions during certain times or to individuals. The Act also failed to demonstrate that the transmission of “offensive” material was devoid of social value.
Twenty plaintiffs (including the ACLU) filed suit challenging provisions of the 1996 Communications Decency Act (CDA) on First Amendment grounds. The district court entered a temporary restraining order prohibiting the enforcement of the CDA as it applied to “indecent’ communications.” A second suit was filed by 27 plaintiffs, challenging two provisions of the CDA. The district court granted a preliminary injunction against the enforcement of both provisions. Under special provisions of the CDA, the government appealed directly to the U.S. Supreme Court, claiming the district court erred in finding the provisions unconstitutional under the First Amendment.
The first provision challenged the criminalization of the “’knowing’ transmission of ‘obscene or indecent’ messages to any recipient under 18 years of age.” The second provision challenged the prohibition of the “’knowin[g]’ sending or displaying to a person under 18 of any message that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”
Stevens, J., delivered the opinion of the Court. He emphasized the variety of content on the Internet, holding that it is “no exaggeration to conclude that the content on the Internet is as diverse as human thought.” [p. 852]
The government had argued that the provisions were needed to protect minors from harmful material on the Internet, particularly sexually explicit material, and that similar regulation as already existed for broadcasting should be applied to the Internet. The Court strongly disagreed with this contention, holding that there was no history of Internet regulation and the Internet was not as invasive as radio or television. Furthermore, unlike the broadcast media, which could be regulated partly because of the scarcity of broadcast frequencies available, Internet bandwidth was almost unlimited, providing relatively low-cost capacity for communication of all kinds. The Court also stressed that users seldom encounter content by accident.
As to the text of the provisions, the Court considered that they were vaguely worded and failed to adequately define or limit “indecent” or “patently offensive” material. The provisions would potentially criminalise large amounts of non-pornographic material with serious educational or other value, and the “community standards” criterion as applied to the Internet meant that any website available to a nation-wide audience would be judged by the standards of the community most likely to be offended by it. This would provoke uncertainty and raise questions whether the Act criminalized serious discussion about issues such as birth control, homosexuality, or the consequences of prison rape.
None of the defenses provided for saved the provisions. The Court disagreed that the proposed coding of specific sites as indecent would suffice; there would be no way of knowing whether a potential recipient would actually block such sites. Age verification was prohibitively expensive, particularly for non-commercial websites and individuals, and even if it was affordable there was no evidence that this would preclude minors from posing as adults.
The Court held that, “[i]t is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not “reduc[e] the adult population…to…only what is fit for children.”” [p. 875] The Court therefore agreed with the district court’s conclusion that “the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of ‘narrow tailoring’ that will save an otherwise patently invalid unconstitutional provision.” [p. 882]
Finally, the government had said that the Act was needed to foster the growth of the Internet, arguing that the unregulated availability of “indecent” and “patently offensive” material would drive people away. The Court held that this contention was clearly wrong, as illustrated by the dramatic ongoing growth of the internet, and held that, “governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” [p. 885]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is very significant because the Court recognizes that the Internet cannot be regulated in the same manner as broadcast media. While recognizing the important governmental interest of protecting minors against harmful speech, the Court held that this could not justify suppressing a large amount of speech that is constitutionally protected for adults.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
All state and federal courts in the United States are required to follow Supreme Court decisions.
As one of the earliest decisions by a constitutional court on internet content, and because of the important status of the US Supreme Court and the ongoing global debate about restricting obscene or indecent material on the internet, this decision stands as important precedent. While it is binding only in the United States, the decision has been referenced by courts in various other countries for its persuasive reasoning and explaining the distinct nature of the internet as a communications medium.
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