Supreme Court ruled that portions of the Communications Decency Act (CDA) addressing indecency are not constitutional
The Electronic Privacy Information Center, in conjunction with the American Civil Liberties Union and 18 other organizations, initiated the constitutional challenge to the CDA in federal court in Philadelphia on February 8, 1996, and sought a declaration that the statute is unconstitutional.
On June 12, 1996, a special three-judge court in Philadephia ruled that the Communications Decency Act is an unconstitutional abridgement of rights protected by the First and Fifth Amendments. The Department of Justice filed an appeal with the U.S. Supreme Court on March 19,1996. The United States Supreme Court by a 7-2 decision on June 26 affirmed the lower court decision and held that the Communications Decency Act violates the First Amendment’s guarantee of freedom of speech.
The CDA was enacted as Title V of the Telecommunications Act of 1996, Pub.L.No. 104-104, §502, 110 Stat. 56, 133-35 and codified at 47 U.S.C. §§223(a) to (h).
Case Title
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL
vs
AMERICAN CIVIL LIBERTIES UNION, ET AL.
No. 96-511
This case involves the government’s attempt to regulate a new technology that will serve as the basis for global communication in the twenty-first century. Unfortunately, Congress held no hearings about the nature of the Internet before it enacted the CDA. The sad but predictable result is that Congress drafted a statute that is both ineffective and unconstitutional, as the lower court found after engaging in the detailed factual inquiry that Congress chose not to do.
Question Asked
Should this Court summarily affirm the three-judge court’s grant of a preliminary injunction against the criminal provisions of the Communications Decency Act on First Amendment grounds, based upon undisputed factual findings establishing that it is technologically and economically infeasible to comply with the Act’s provisions, and that the Act would unconstitutionally and ineffectively ban a wide variety of protected speech in the democratic, noninvasive and global medium of cyberspace?
Lower Court Opinion
The three-judge court reached the unanimous conclusion that the inevitable effect of the CDA would be to deprive adult Internet users of their right to send and receive constitutionally protected speech that deals with sexual issues. Because that result so clearly violates the First Amendment under this Court’s well-established jurisprudence
GOVT Reaction
Communications Decency Act
THE WHITE HOUSE
Office of the Press Secretary
June 26, 1996
STATEMENT BY THE PRESIDENT
Bill Clinton
Today, the Supreme Court ruled (Reno v. ACLU) that portions of the Communications Decency Act addressing indecency are not constitutional. We will study its opinion closely.
The administration remains firmly committed to the provisions — both in the CDA and elsewhere in the criminal code — that prohibit the transmission of obscenity over the Internet and via other media. Similarly, we remain committed to vigorous enforcement of federal prohibitions against transmission of child pornography over the Internet, and another prohibition that makes criminal the use of the Internet by pedophiles to entice children to engage in sexual activity.
The Internet is an incredibly powerful medium for freedom of speech and freedom of expression that should be protected. It is the biggest change in human communications since the printing press, and is being used to educate our children, promote electronic commerce, provide valuable health care information, and allow citizens to keep in touch with their government. But there is material on the Internet that is clearly inappropriate for children. As a parent, I understand the concerns that parents have about their children accessing inappropriate material.
If we are to make the Internet a powerful resource for learning, we must give parents and teachers the tools they need to make the Internet safe for children.
Therefore, in the coming days, I will convene industry leaders and groups representing teachers, parents and librarians. We can and must develop a solution for the Internet that is as powerful for the computer as the v-chip will be for the television, and that protects children in ways that are consistent with America’s free speech values. With the right technology and rating systems – we can help ensure that our children don’t end up in the red light districts of cyberspace.
Codification
47 U.S. Code § 230 – Protection for private blocking and screening of offensive material
(a)Findings
The Congress finds the following:
(1)The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2)These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4)The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b)Policy
It is the policy of the United States—
(1)to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]
(d)Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e)Effect on other laws
(1)No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
(2)No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3)State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4)No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(5)No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
(A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
(B)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or
(C)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.
(f)Definitions
As used in this section:
(1)Internet
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2)Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3)Information content provider
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4)Access software provider
The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A)filter, screen, allow, or disallow content;
(B)pick, choose, analyze, or digest content; or
(C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.)
Congressional Act
Communications Decency Act-1996
Enacted by the U.S. Congress on February 1, 1996
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.–This Act may be cited as the “Telecommunications Act of 1996”.
(b) References.–Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or other provision of the
Communications Act of 1934 (47 U.S.C. 151 et seq.).
TITLE V–OBSCENITY AND VIOLENCE
Subtitle A–Obscene, Harassing, and Wrongful Utilization of
Telecommunications Facilities
SEC. 501. SHORT TITLE.
This title may be cited as the “Communications Decency Act of 1996”.
SEC. 502. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS
FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934.
Section 223 (47 U.S.C. 223) is amended–
(1) by striking subsection (a) and inserting in lieu thereof:
“(a) Whoever–
“(1) in interstate or foreign communications–
“(A) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,
threaten, or harass another person;
“(B) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such communication
placed the call or initiated the communication;
“(C) makes a telephone call or utilizes a telecommunications device,
whether or not conversation or communication ensues, without disclosing his
identity and with intent to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications;
“(D) makes or causes the telephone of another repeatedly or continuously
to ring, with intent to harass any person at the called number; or
“(E) makes repeated telephone calls or repeatedly initiates communication
with a telecommunications device, during which conversation or communication
ensues, solely to harass any person at the called number or who receives the
communication; or
“(2) knowingly permits any telecommunications facility under his control to be
used for any activity prohibited by paragraph (1) with the intent that it be used for such
activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or
both.”; and
(2) by adding at the end the following new subsections:
“(d) Whoever–
“(1) in interstate or foreign communications knowingly–
“(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or
“(B) uses any interactive computer service to display in a manner
available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other communication that, in
context, depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs, regardless of whether the
user of such service placed the call or initiated the communication; or
“(2) knowingly permits any telecommunications facility under such person’s
control to be used for an activity prohibited by paragraph (1) with the intent that it be
used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
“(e) In addition to any other defenses available by law:
“(1) No person shall be held to have violated subsection (a) or (d) solely for
providing access or connection to or from a facility, system, or network not under that
person’s control, including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to providing such access or
connection that does not include the creation of the content of the communication.
“(2) The defenses provided by paragraph (1) of this subsection shall not be
applicable to a person who is a conspirator with an entity actively involved in the creation
or knowing distribution of communications that violate this section, or who knowingly
advertises the availability of such communications.
“(3) The defenses provided in paragraph (1) of this subsection shall not be
applicable to a person who provides access or connection to a facility, system, or network
engaged in the violation of this section that is owned or controlled by such person.
“(4) No employer shall be held liable under this section for the actions of an
employee or agent unless the employee’s or agent’s conduct is within the scope of his or
her employment or agency and the employer (A) having knowledge of such conduct,
authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
“(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under
subsection (a)(2) with respect to the use of a facility for an activity under subsection
(a)(1)(B) that a person–
“(A) has taken, in good faith, reasonable, effective, and appropriate
actions under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate
measures to restrict minors from such communications, including any method
which is feasible under available technology; or
“(B) has restricted access to such communication by requiring use of a
verified credit card, debit account, adult access code, or adult personal
identification number.
“(6) The Commission may describe measures which are reasonable, effective,
and appropriate to restrict access to prohibited communications under subsection (d).
Nothing in this section authorizes the Commission to enforce, or is intended to provide
the Commission with the authority to approve, sanction, or permit, the use of such
measures. The Commission shall have no enforcement authority over the failure to utilize
such measures. The Commission shall not endorse specific products relating to such
measures. The use of such measures shall be admitted as evidence of good faith efforts
for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this
section shall be construed to treat interactive computer services as common carriers or
telecommunications carriers.
“(f)(1) No cause of action may be brought in any court or administrative agency against
any person on account of any activity that is not in violation of any law punishable by criminal or
civil penalty, and that the person has taken in good faith to implement a defense authorized under
this section or otherwise to restrict or prevent the transmission of, or access to, a communication
specified in this section.
“(2) No State or local government may impose any liability for commercial activities or
actions by commercial entities, nonprofit libraries, or institutions of higher education in
connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with
the treatment of those activities or actions under this section: Provided, however, That nothing
herein shall preclude any State or local government from enacting and enforcing complementary
oversight, liability, and regulatory systems, procedures, and requirements, so long as such
systems, procedures, and requirements govern only intrastate services and do not result in the
imposition of inconsistent rights, duties or obligations on the provision of interstate services.
Nothing in this subsection shall preclude any State or local government from governing conduct
not covered by this section.
“(g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under (a)
or (d) shall be construed to affect or limit the application or enforcement of any other Federal
law.
“(h) For purposes of this section–
“(1) The use of the term `telecommunications device’ in this section–
“(A) shall not impose new obligations on broadcasting station licensees
and cable operators covered by obscenity and indecency provisions elsewhere in
this Act; and
“(B) does not include an interactive computer service.
“(2) The term `interactive computer service’ has the meaning provided in section
230(e)(2).
“(3) The term `access software’ means software (including client or server
software) or enabling tools that do not create or provide the content of the communication
but that allow a user to do any one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.
“(4) The term `institution of higher education’ has the meaning provided in
section 1201 of the Higher Education Act of 1965 (20 U.S.C. 1141).
“(5) The term `library’ means a library eligible for participation in State-based
plans for funds under title III of the Library Services and Construction Act (20 U.S.C.
355e et seq.).”.
SEC. 503. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking “not more than $10,000” and
inserting “under title 18, United States Code,”.
SEC. 504. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
Part IV of title VI (47 U.S. C. 551 et seq.) is amended by adding at the end the following:
“SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
“(a) Subscriber Request.–Upon request by a cable service subscriber, a cable operator
shall, without charge, fully scramble or otherwise fully block the audio and video programming
of each channel carrying such programming so that one not a subscriber does not receive it.
“(b) Definition.–As used in this section, the term `scramble’ means to rearrange the
content of the signal of the programming so that the programming cannot be viewed or heard in
an understandable manner.”.
SEC. 505. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
(a) Requirement.–Part IV of title VI (47 U.S.C. 551 et seq.), as amended by this Act, is
further amended by adding at the end the following:
“SEC. 641. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
“(a) Requirement.–In providing sexually explicit adult programming or other
programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor s
otherwise fully block the video and audio portion of such channel so that one not a subscriber to
such channel or programming does not receive it.
“(b) Implementation.–Until a multichannel video programming distributor complies
with the requirement set forth in subsection (a), the distributor shall limit the access of children
to the programming referred to in that subsection by not providing such programming during the
hours of the day (as determined by the Commission) when a significant number of children are
likely to view it.
“(c) Definition.–As used in this section, the term `scramble’ means to rearrange the
content of the signal of the programming so that the programming cannot be viewed or heard in
an understandable manner.”.
(b) Effective Date.–The amendment made by subsection (a) shall take effect 30 days
after the date of enactment of this Act.
SEC. 506. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
(a) Public, Educational, and Governmental Channels.–Section 611(e) (47 U.S.C.
531(e)) is amended by inserting before the period the following: “, except a cable operator may
refuse to transmit any public access program or portion of a public access program which
contains obscenity, indecency, or nudity”.
(b) Cable Channels for Commercial Use.–Section 612(c)(2) (47 U.S.C. 532(c)(2)) is
amended by striking “an operator” and inserting “a cable operator may refuse to transmit any
leased access program or portion of a leased access program which contains obscenity,
indecency, or nudity and”.
SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.
(a) Importation or Transportation.–Section 1462 of title 18, United States Code, is
amended–
(1) in the first undesignated paragraph, by inserting “or interactive computer
service (as defined in section 230(e)(2) of the Communications Act of 1934)” after
“carrier”; and
(2) in the second undesignated paragraph–
(A) by inserting “or receives,” after “takes”;
(B) by inserting “or interactive computer service (as defined in section
230(e)(2) of the Communications Act of 1934)” after “common carrier”; and
(C) by inserting “or importation” after “carriage”.
(b) Transportation for Purposes of Sale or Distribution.–The first undesignated
paragraph of section 1465 of title 18, United States Code, is amended–
(1) by striking “transports in” and inserting “transports or travels in, or uses a
facility or means of,”;
(2) by inserting “or an interactive computer service (as defined in section
230(e)(2) of the Communications Act of 1934) in or affecting such commerce” after
“foreign commerce” the first place it appears;
(3) by striking “, or knowingly travels in” and all that follows through “obscene
material in interstate or foreign commerce,” and inserting “of”.
(c) Interpretation.–The amendments made by this section are clarifying and shall not
be interpreted to limit or repeal any prohibition contained in sections 1462 and 1465 of title 18,
United States Code, before such amendment, under the rule established in United States v.
Alpers, 338 U.S. 680 (1950).
SEC. 508. COERCION AND ENTICEMENT OF MINORS.
Section 2422 of title 18, United States Code, is amended–
(1) by inserting “(a)” before “Whoever knowingly”; and
(2) by adding at the end the following:
“(b) Whoever, using any facility or means of interstate or foreign commerce, including
the mail, or within the special maritime and territorial jurisdiction of the United States,
knowingly persuades, induces, entices, or coerces any individual who has not attained the age of
18 years to engage in prostitution or any sexual act for which any person may be criminally
prosecuted, or attempts to do so, shall be fined under this title or imprisoned not more than 10
years, or both.”.
SEC. 509. ONLINE FAMILY EMPOWERMENT.
Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding
at the end the following new section:
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.
“(a) Findings.–The Congress finds the following:
“(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in the
availability of educational and informational resources to our citizens.
“(2) These services offer users a great degree of control over the information that
they receive, as well as the potential for even greater control in the future as technology
develops.
“(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity.
“(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.
“(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.
“(b) Policy.–It is the policy of the United States–
“(1) to promote the continued development of the Internet and other interactive
computer services and other interactive media;
“(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State
regulation;
“(3) to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who use the
Internet and other interactive computer services;
“(4) to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children’s access to
objectionable or inappropriate online material; and
“(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of computer.
“(c) Protection for `Good Samaritan’ Blocking and Screening of Offensive
Material.–
“(1) Treatment of publisher or speaker.–No provider or user of an
interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.
“(2) Civil liability.–No provider or user of an interactive computer service
shall be held liable on account of–
“(A) any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected; or
“(B) any action taken to enable or make available to information content
providers or others the technical means to restrict access to material described in
paragraph (1).
“(d) Effect on Other Laws.–
“(1) No effect on criminal law.–Nothing in this section shall be construed to
impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or
110 (relating to sexual exploitation of children) of title 18, United States Code, or any
other Federal criminal statute.
“(2) No effect on intellectual property law.–Nothing in this section shall
be construed to limit or expand any law pertaining to intellectual property.
“(3) State law.–Nothing in this section shall be construed to prevent any State
from enforcing any State law that is consistent with this section. No cause of action may
be brought and no liability may be imposed under any State or local law that is
inconsistent with this section.
“(4) No effect on communications privacy law.–Nothing in this section
shall be construed to limit the application of the Electronic Communications Privacy Act
of 1986 or any of the amendments made by such Act, or any similar State law.
“(e) Definitions.–As used in this section:
“(1) Internet.–The term `Internet’ means the international computer network of
both Federal and non-Federal interoperable packet switched data networks.
“(2) Interactive computer service.–The term `interactive computer service’
means any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems operated or
services offered by libraries or educational institutions.
“(3) Information content provider.–The term `information content provider’
means any person or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other interactive
computer service.
“(4) Access software provider.–The term `access software provider’ means a
provider of software (including client or server software), or enabling tools that do any
one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.”.
Subtitle B violence
SEC. 551. PARENTAL CHOICE IN TELEVISION PROGRAMMING.
(a) Findings.–The Congress makes the following findings:
(1) Television influences children’s perception of the values and behavior that are common and acceptable in society.
(2) Television station operators, cable television system operators, and video
programmers should follow practices in connection with video programming that take
into consideration that television broadcast and cable programming has established a
uniquely pervasive presence in the lives of American children.
(3) The average American child is exposed to 25 hours of television each week
and some children are exposed to as much as 11 hours of television a day.
(4) Studies have shown that children exposed to violent video programming at a
young age have a higher tendency for violent and aggressive behavior later in life than
children not so exposed, and that children exposed to violent video programming are
prone to assume that acts of violence are acceptable behavior.
(5) Children in the United States are, on average, exposed to an estimated 8,000
murders and 100,000 acts of violence on television by the time the child completes elementary school.
(6) Studies indicate that children are affected by the pervasiveness and casual
treatment of sexual material on television, eroding the ability of parents to develop
responsible attitudes and behavior in their children.
(7) Parents express grave concern over violent and sexual video programming and
strongly support technology that would give them greater control to block video
programming in the home that they consider harmful to their children.
(8) There is a compelling governmental interest in empowering parents to limit
the negative influences of video programming that is harmful to children.
(9) Providing parents with timely information about the nature of upcoming video
programming and with the technological tools that allow them easily to block violent,
sexual, or other programming that they believe harmful to their children is a nonintrusive
and narrowly tailored means of achieving that compelling governmental interest.
(b) Establishment of Television Rating Code.–
(1) Amendment.–Section 303 (47 U.S.C. 303) is amended by adding at the end
the following:
(w) Prescribe–
(1) on the basis of recommendations from an advisory committee established by
the Commission in accordance with section 551(b)(2) of the Telecommunications Act of
1996, guidelines and recommended procedures for the identification and rating of video
programming that contains sexual, violent, or other indecent material about which parents
should be informed before it is displayed to children, provided that nothing in this
paragraph shall be construed to authorize any rating of video programming on the basis of
its political or religious content; and
“(2) with respect to any video programming that has been rated, and in
consultation with the television industry, rules requiring distributors of such video
programming to transmit such rating to permit parents to block the display of video
programming that they have determined is inappropriate for their children.”.
(2) Advisory committee requirements.–In establishing an advisory committee
for purposes of the amendment made by paragraph (1) of this subsection, the
Commission shall–
(A) ensure that such committee is composed of parents, television
broadcasters, television programming producers, cable operators, appropriate
public interest groups, and other interested individuals from the private sector and
is fairly balanced in terms of political affiliation, the points of view represented,
and the functions to be performed by the committee;
(B) provide to the committee such staff and resources as may be necessary
to permit it to perform its functions efficiently and promptly; and
(C) require the committee to submit a final report of its recommendations
within one year after the date of the appointment of the initial members.
(c) Requirement for Manufacture of Televisions That Block Programs.–Section
303 (47 U.S.C. 303), as amended by subsection (a), is further amended by adding at the end the
following:
“(x) Require, in the case of an apparatus designed to receive television signals that are
shipped in interstate commerce or manufactured in the United States and that have a picture
screen 13 inches or greater in size (measured diagonally), that such apparatus be equipped with a
feature designed to enable viewers to block display of all programs with a common rating, except
as otherwise permitted by regulations pursuant to section 330(c)(4).”.
(d) Shipping of Televisions That Block Programs.–
(1) Regulations.–Section 330 (47 U.S.C. 330) is amended–
(A) by redesignating subsection (c) as subsection (d); and
(B) by adding after subsection (b) the following new subsection (c):
“(c)(1) Except as provided in paragraph (2), no person shall ship in interstate commerce
or manufacture in the United States any apparatus described in section 303(x) of this Act except
in accordance with rules prescribed by the Commission pursuant to the authority granted by that section.
“(2) This subsection shall not apply to carriers transporting apparatus referred to in
paragraph (1) without trading in it.
“(3) The rules prescribed by the Commission under this subsection shall provide for the
oversight by the Commission of the adoption of standards by industry for blocking technology.
Such rules shall require that all such apparatus be able to receive the rating signals which have
been transmitted by way of line 21 of the vertical blanking interval and which conform to the
signal and blocking specifications established by industry under the supervision of the
Commission.
“(4) As new video technology is developed, the Commission shall take such action as the
Commission determines appropriate to ensure that blocking service continues to be available to
consumers. If the Commission determines that an alternative blocking technology exists that–
“(A) enables parents to block programming based on identifying programs
without ratings,
“(B) is available to consumers at a cost which is comparable to the cost of
technology that allows parents to block programming based on common ratings, and
“(C) will allow parents to block a broad range of programs on a multichannel
system as effectively and as easily as technology that allows parents to block
programming based on common ratings,
the Commission shall amend the rules prescribed pursuant to section 303(x) to require that the
apparatus described in such section be equipped with either the blocking technology described in
such section or the alternative blocking technology described in this paragraph.”.
(2) Conforming amendment.–Section 330(d), as redesignated by subsection
(d)(1)(A), is amended by striking “section 303(s), and section 303(u)” and inserting in
lieu thereof “and sections 303(s), 303(u), and 303(x)”.
(e) Applicability and Effective Dates.–
(1) Applicability of rating provision.–The amendment made by subsection
(b) of this section shall take effect 1 year after the date of enactment of this Act, but only
if the Commission determines, in consultation with appropriate public interest groups and
interested individuals from the private sector, that distributors of video programming
have not, by such date–
(A) established voluntary rules for rating video programming that contains
sexual, violent, or other indecent material about which parents should be informed
before it is displayed to children, and such rules are acceptable to the Commission; and
(B) agreed voluntarily to broadcast signals that contain ratings of such programming.
(2) Effective date of manufacturing provision.–In prescribing regulations to
implement the amendment made by subsection (c), the Federal Communications
Commission shall, after consultation with the television manufacturing industry, specify
the effective date for the applicability of the requirement to the apparatus covered by such
amendment, which date shall not be less than two years after the date of enactment of this Act.
SEC. 552. TECHNOLOGY FUND.
It is the policy of the United States to encourage broadcast television, cable, satellite, syndication, other video programming distributors, and relevant related industries (in consultation with appropriate public interest groups and interested individuals from the private sector) to–
(1) establish a technology fund to encourage television and electronics equipment
manufacturers to facilitate the development of technology which would empower parents
to block programming they deem inappropriate for their children and to encourage the
availability thereof to low income parents;
(2) report to the viewing public on the status of the development of affordable,
easy to use blocking technology; and
(3) establish and promote effective procedures, standards, systems, advisories, or
other mechanisms for ensuring that users have easy and complete access to the
information necessary to effectively utilize blocking technology and to encourage the
availability thereof to low income parents.
Subtitle C–Judicial Review
SEC. 561. EXPEDITED REVIEW.
(a) Three-Judge District Court Hearing.–Notwithstanding any other provision of
law, any civil action challenging the constitutionality, on its face, of this title or any amendment
made by this title, or any provision thereof, shall be heard by a district court of 3 judges
convened pursuant to the provisions of section 2284 of title 28, United States Code.
(b) Appellate Review.–Notwithstanding any other provision of law, an interlocutory or
final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding
this title or an amendment made by this title, or any provision thereof, unconstitutional shall be
reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be
filed not more than 20 days after entry of such judgment, decree, or order.
Supreme Court ruled that portions of the Communications Decency Act (CDA) addressing indecency are not constitutional
The Electronic Privacy Information Center, in conjunction with the American Civil Liberties Union and 18 other organizations, initiated the constitutional challenge to the CDA in federal court in Philadelphia on February 8, 1996, and sought a declaration that the statute is unconstitutional.
On June 12, 1996, a special three-judge court in Philadephia ruled that the Communications Decency Act is an unconstitutional abridgement of rights protected by the First and Fifth Amendments. The Department of Justice filed an appeal with the U.S. Supreme Court on March 19,1996. The United States Supreme Court by a 7-2 decision on June 26 affirmed the lower court decision and held that the Communications Decency Act violates the First Amendment’s guarantee of freedom of speech.
The CDA was enacted as Title V of the Telecommunications Act of 1996, Pub.L.No. 104-104, §502, 110 Stat. 56, 133-35 and codified at 47 U.S.C. §§223(a) to (h).
Case Title
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL
vs
AMERICAN CIVIL LIBERTIES UNION, ET AL.
No. 96-511
This case involves the government’s attempt to regulate a new technology that will serve as the basis for global communication in the twenty-first century. Unfortunately, Congress held no hearings about the nature of the Internet before it enacted the CDA. The sad but predictable result is that Congress drafted a statute that is both ineffective and unconstitutional, as the lower court found after engaging in the detailed factual inquiry that Congress chose not to do.
Question Asked
Should this Court summarily affirm the three-judge court’s grant of a preliminary injunction against the criminal provisions of the Communications Decency Act on First Amendment grounds, based upon undisputed factual findings establishing that it is technologically and economically infeasible to comply with the Act’s provisions, and that the Act would unconstitutionally and ineffectively ban a wide variety of protected speech in the democratic, noninvasive and global medium of cyberspace?
Lower Court Opinion
The three-judge court reached the unanimous conclusion that the inevitable effect of the CDA would be to deprive adult Internet users of their right to send and receive constitutionally protected speech that deals with sexual issues. Because that result so clearly violates the First Amendment under this Court’s well-established jurisprudence
GOVT Reaction
Communications Decency Act
THE WHITE HOUSE
Office of the Press Secretary
June 26, 1996
STATEMENT BY THE PRESIDENT
Bill Clinton
Today, the Supreme Court ruled (Reno v. ACLU) that portions of the Communications Decency Act addressing indecency are not constitutional. We will study its opinion closely.
The administration remains firmly committed to the provisions — both in the CDA and elsewhere in the criminal code — that prohibit the transmission of obscenity over the Internet and via other media. Similarly, we remain committed to vigorous enforcement of federal prohibitions against transmission of child pornography over the Internet, and another prohibition that makes criminal the use of the Internet by pedophiles to entice children to engage in sexual activity.
The Internet is an incredibly powerful medium for freedom of speech and freedom of expression that should be protected. It is the biggest change in human communications since the printing press, and is being used to educate our children, promote electronic commerce, provide valuable health care information, and allow citizens to keep in touch with their government. But there is material on the Internet that is clearly inappropriate for children. As a parent, I understand the concerns that parents have about their children accessing inappropriate material.
If we are to make the Internet a powerful resource for learning, we must give parents and teachers the tools they need to make the Internet safe for children.
Therefore, in the coming days, I will convene industry leaders and groups representing teachers, parents and librarians. We can and must develop a solution for the Internet that is as powerful for the computer as the v-chip will be for the television, and that protects children in ways that are consistent with America’s free speech values. With the right technology and rating systems – we can help ensure that our children don’t end up in the red light districts of cyberspace.
Codification
47 U.S. Code § 230 – Protection for private blocking and screening of offensive material
(a)Findings
The Congress finds the following:
(1)The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2)These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4)The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b)Policy
It is the policy of the United States—
(1)to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]
(d)Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e)Effect on other laws
(1)No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
(2)No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3)State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4)No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(5)No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
(A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
(B)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or
(C)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.
(f)Definitions
As used in this section:
(1)Internet
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2)Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3)Information content provider
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4)Access software provider
The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A)filter, screen, allow, or disallow content;
(B)pick, choose, analyze, or digest content; or
(C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.)
Congressional Act
Communications Decency Act-1996
Enacted by the U.S. Congress on February 1, 1996
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.–This Act may be cited as the “Telecommunications Act of 1996”.
(b) References.–Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or other provision of the
Communications Act of 1934 (47 U.S.C. 151 et seq.).
TITLE V–OBSCENITY AND VIOLENCE
Subtitle A–Obscene, Harassing, and Wrongful Utilization of
Telecommunications Facilities
SEC. 501. SHORT TITLE.
This title may be cited as the “Communications Decency Act of 1996”.
SEC. 502. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS
FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934.
Section 223 (47 U.S.C. 223) is amended–
(1) by striking subsection (a) and inserting in lieu thereof:
“(a) Whoever–
“(1) in interstate or foreign communications–
“(A) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,
threaten, or harass another person;
“(B) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such communication
placed the call or initiated the communication;
“(C) makes a telephone call or utilizes a telecommunications device,
whether or not conversation or communication ensues, without disclosing his
identity and with intent to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications;
“(D) makes or causes the telephone of another repeatedly or continuously
to ring, with intent to harass any person at the called number; or
“(E) makes repeated telephone calls or repeatedly initiates communication
with a telecommunications device, during which conversation or communication
ensues, solely to harass any person at the called number or who receives the
communication; or
“(2) knowingly permits any telecommunications facility under his control to be
used for any activity prohibited by paragraph (1) with the intent that it be used for such
activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or
both.”; and
(2) by adding at the end the following new subsections:
“(d) Whoever–
“(1) in interstate or foreign communications knowingly–
“(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or
“(B) uses any interactive computer service to display in a manner
available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other communication that, in
context, depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs, regardless of whether the
user of such service placed the call or initiated the communication; or
“(2) knowingly permits any telecommunications facility under such person’s
control to be used for an activity prohibited by paragraph (1) with the intent that it be
used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
“(e) In addition to any other defenses available by law:
“(1) No person shall be held to have violated subsection (a) or (d) solely for
providing access or connection to or from a facility, system, or network not under that
person’s control, including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to providing such access or
connection that does not include the creation of the content of the communication.
“(2) The defenses provided by paragraph (1) of this subsection shall not be
applicable to a person who is a conspirator with an entity actively involved in the creation
or knowing distribution of communications that violate this section, or who knowingly
advertises the availability of such communications.
“(3) The defenses provided in paragraph (1) of this subsection shall not be
applicable to a person who provides access or connection to a facility, system, or network
engaged in the violation of this section that is owned or controlled by such person.
“(4) No employer shall be held liable under this section for the actions of an
employee or agent unless the employee’s or agent’s conduct is within the scope of his or
her employment or agency and the employer (A) having knowledge of such conduct,
authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
“(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under
subsection (a)(2) with respect to the use of a facility for an activity under subsection
(a)(1)(B) that a person–
“(A) has taken, in good faith, reasonable, effective, and appropriate
actions under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate
measures to restrict minors from such communications, including any method
which is feasible under available technology; or
“(B) has restricted access to such communication by requiring use of a
verified credit card, debit account, adult access code, or adult personal
identification number.
“(6) The Commission may describe measures which are reasonable, effective,
and appropriate to restrict access to prohibited communications under subsection (d).
Nothing in this section authorizes the Commission to enforce, or is intended to provide
the Commission with the authority to approve, sanction, or permit, the use of such
measures. The Commission shall have no enforcement authority over the failure to utilize
such measures. The Commission shall not endorse specific products relating to such
measures. The use of such measures shall be admitted as evidence of good faith efforts
for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this
section shall be construed to treat interactive computer services as common carriers or
telecommunications carriers.
“(f)(1) No cause of action may be brought in any court or administrative agency against
any person on account of any activity that is not in violation of any law punishable by criminal or
civil penalty, and that the person has taken in good faith to implement a defense authorized under
this section or otherwise to restrict or prevent the transmission of, or access to, a communication
specified in this section.
“(2) No State or local government may impose any liability for commercial activities or
actions by commercial entities, nonprofit libraries, or institutions of higher education in
connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with
the treatment of those activities or actions under this section: Provided, however, That nothing
herein shall preclude any State or local government from enacting and enforcing complementary
oversight, liability, and regulatory systems, procedures, and requirements, so long as such
systems, procedures, and requirements govern only intrastate services and do not result in the
imposition of inconsistent rights, duties or obligations on the provision of interstate services.
Nothing in this subsection shall preclude any State or local government from governing conduct
not covered by this section.
“(g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under (a)
or (d) shall be construed to affect or limit the application or enforcement of any other Federal
law.
“(h) For purposes of this section–
“(1) The use of the term `telecommunications device’ in this section–
“(A) shall not impose new obligations on broadcasting station licensees
and cable operators covered by obscenity and indecency provisions elsewhere in
this Act; and
“(B) does not include an interactive computer service.
“(2) The term `interactive computer service’ has the meaning provided in section
230(e)(2).
“(3) The term `access software’ means software (including client or server
software) or enabling tools that do not create or provide the content of the communication
but that allow a user to do any one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.
“(4) The term `institution of higher education’ has the meaning provided in
section 1201 of the Higher Education Act of 1965 (20 U.S.C. 1141).
“(5) The term `library’ means a library eligible for participation in State-based
plans for funds under title III of the Library Services and Construction Act (20 U.S.C.
355e et seq.).”.
SEC. 503. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking “not more than $10,000” and
inserting “under title 18, United States Code,”.
SEC. 504. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
Part IV of title VI (47 U.S. C. 551 et seq.) is amended by adding at the end the following:
“SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
“(a) Subscriber Request.–Upon request by a cable service subscriber, a cable operator
shall, without charge, fully scramble or otherwise fully block the audio and video programming
of each channel carrying such programming so that one not a subscriber does not receive it.
“(b) Definition.–As used in this section, the term `scramble’ means to rearrange the
content of the signal of the programming so that the programming cannot be viewed or heard in
an understandable manner.”.
SEC. 505. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
(a) Requirement.–Part IV of title VI (47 U.S.C. 551 et seq.), as amended by this Act, is
further amended by adding at the end the following:
“SEC. 641. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
“(a) Requirement.–In providing sexually explicit adult programming or other
programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor s
otherwise fully block the video and audio portion of such channel so that one not a subscriber to
such channel or programming does not receive it.
“(b) Implementation.–Until a multichannel video programming distributor complies
with the requirement set forth in subsection (a), the distributor shall limit the access of children
to the programming referred to in that subsection by not providing such programming during the
hours of the day (as determined by the Commission) when a significant number of children are
likely to view it.
“(c) Definition.–As used in this section, the term `scramble’ means to rearrange the
content of the signal of the programming so that the programming cannot be viewed or heard in
an understandable manner.”.
(b) Effective Date.–The amendment made by subsection (a) shall take effect 30 days
after the date of enactment of this Act.
SEC. 506. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
(a) Public, Educational, and Governmental Channels.–Section 611(e) (47 U.S.C.
531(e)) is amended by inserting before the period the following: “, except a cable operator may
refuse to transmit any public access program or portion of a public access program which
contains obscenity, indecency, or nudity”.
(b) Cable Channels for Commercial Use.–Section 612(c)(2) (47 U.S.C. 532(c)(2)) is
amended by striking “an operator” and inserting “a cable operator may refuse to transmit any
leased access program or portion of a leased access program which contains obscenity,
indecency, or nudity and”.
SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.
(a) Importation or Transportation.–Section 1462 of title 18, United States Code, is
amended–
(1) in the first undesignated paragraph, by inserting “or interactive computer
service (as defined in section 230(e)(2) of the Communications Act of 1934)” after
“carrier”; and
(2) in the second undesignated paragraph–
(A) by inserting “or receives,” after “takes”;
(B) by inserting “or interactive computer service (as defined in section
230(e)(2) of the Communications Act of 1934)” after “common carrier”; and
(C) by inserting “or importation” after “carriage”.
(b) Transportation for Purposes of Sale or Distribution.–The first undesignated
paragraph of section 1465 of title 18, United States Code, is amended–
(1) by striking “transports in” and inserting “transports or travels in, or uses a
facility or means of,”;
(2) by inserting “or an interactive computer service (as defined in section
230(e)(2) of the Communications Act of 1934) in or affecting such commerce” after
“foreign commerce” the first place it appears;
(3) by striking “, or knowingly travels in” and all that follows through “obscene
material in interstate or foreign commerce,” and inserting “of”.
(c) Interpretation.–The amendments made by this section are clarifying and shall not
be interpreted to limit or repeal any prohibition contained in sections 1462 and 1465 of title 18,
United States Code, before such amendment, under the rule established in United States v.
Alpers, 338 U.S. 680 (1950).
SEC. 508. COERCION AND ENTICEMENT OF MINORS.
Section 2422 of title 18, United States Code, is amended–
(1) by inserting “(a)” before “Whoever knowingly”; and
(2) by adding at the end the following:
“(b) Whoever, using any facility or means of interstate or foreign commerce, including
the mail, or within the special maritime and territorial jurisdiction of the United States,
knowingly persuades, induces, entices, or coerces any individual who has not attained the age of
18 years to engage in prostitution or any sexual act for which any person may be criminally
prosecuted, or attempts to do so, shall be fined under this title or imprisoned not more than 10
years, or both.”.
SEC. 509. ONLINE FAMILY EMPOWERMENT.
Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding
at the end the following new section:
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.
“(a) Findings.–The Congress finds the following:
“(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in the
availability of educational and informational resources to our citizens.
“(2) These services offer users a great degree of control over the information that
they receive, as well as the potential for even greater control in the future as technology
develops.
“(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity.
“(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.
“(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.
“(b) Policy.–It is the policy of the United States–
“(1) to promote the continued development of the Internet and other interactive
computer services and other interactive media;
“(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State
regulation;
“(3) to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who use the
Internet and other interactive computer services;
“(4) to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children’s access to
objectionable or inappropriate online material; and
“(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of computer.
“(c) Protection for `Good Samaritan’ Blocking and Screening of Offensive
Material.–
“(1) Treatment of publisher or speaker.–No provider or user of an
interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.
“(2) Civil liability.–No provider or user of an interactive computer service
shall be held liable on account of–
“(A) any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected; or
“(B) any action taken to enable or make available to information content
providers or others the technical means to restrict access to material described in
paragraph (1).
“(d) Effect on Other Laws.–
“(1) No effect on criminal law.–Nothing in this section shall be construed to
impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or
110 (relating to sexual exploitation of children) of title 18, United States Code, or any
other Federal criminal statute.
“(2) No effect on intellectual property law.–Nothing in this section shall
be construed to limit or expand any law pertaining to intellectual property.
“(3) State law.–Nothing in this section shall be construed to prevent any State
from enforcing any State law that is consistent with this section. No cause of action may
be brought and no liability may be imposed under any State or local law that is
inconsistent with this section.
“(4) No effect on communications privacy law.–Nothing in this section
shall be construed to limit the application of the Electronic Communications Privacy Act
of 1986 or any of the amendments made by such Act, or any similar State law.
“(e) Definitions.–As used in this section:
“(1) Internet.–The term `Internet’ means the international computer network of
both Federal and non-Federal interoperable packet switched data networks.
“(2) Interactive computer service.–The term `interactive computer service’
means any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems operated or
services offered by libraries or educational institutions.
“(3) Information content provider.–The term `information content provider’
means any person or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other interactive
computer service.
“(4) Access software provider.–The term `access software provider’ means a
provider of software (including client or server software), or enabling tools that do any
one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.”.
Subtitle B violence
SEC. 551. PARENTAL CHOICE IN TELEVISION PROGRAMMING.
(a) Findings.–The Congress makes the following findings:
(1) Television influences children’s perception of the values and behavior that are common and acceptable in society.
(2) Television station operators, cable television system operators, and video
programmers should follow practices in connection with video programming that take
into consideration that television broadcast and cable programming has established a
uniquely pervasive presence in the lives of American children.
(3) The average American child is exposed to 25 hours of television each week
and some children are exposed to as much as 11 hours of television a day.
(4) Studies have shown that children exposed to violent video programming at a
young age have a higher tendency for violent and aggressive behavior later in life than
children not so exposed, and that children exposed to violent video programming are
prone to assume that acts of violence are acceptable behavior.
(5) Children in the United States are, on average, exposed to an estimated 8,000
murders and 100,000 acts of violence on television by the time the child completes elementary school.
(6) Studies indicate that children are affected by the pervasiveness and casual
treatment of sexual material on television, eroding the ability of parents to develop
responsible attitudes and behavior in their children.
(7) Parents express grave concern over violent and sexual video programming and
strongly support technology that would give them greater control to block video
programming in the home that they consider harmful to their children.
(8) There is a compelling governmental interest in empowering parents to limit
the negative influences of video programming that is harmful to children.
(9) Providing parents with timely information about the nature of upcoming video
programming and with the technological tools that allow them easily to block violent,
sexual, or other programming that they believe harmful to their children is a nonintrusive
and narrowly tailored means of achieving that compelling governmental interest.
(b) Establishment of Television Rating Code.–
(1) Amendment.–Section 303 (47 U.S.C. 303) is amended by adding at the end
the following:
(w) Prescribe–
(1) on the basis of recommendations from an advisory committee established by
the Commission in accordance with section 551(b)(2) of the Telecommunications Act of
1996, guidelines and recommended procedures for the identification and rating of video
programming that contains sexual, violent, or other indecent material about which parents
should be informed before it is displayed to children, provided that nothing in this
paragraph shall be construed to authorize any rating of video programming on the basis of
its political or religious content; and
“(2) with respect to any video programming that has been rated, and in
consultation with the television industry, rules requiring distributors of such video
programming to transmit such rating to permit parents to block the display of video
programming that they have determined is inappropriate for their children.”.
(2) Advisory committee requirements.–In establishing an advisory committee
for purposes of the amendment made by paragraph (1) of this subsection, the
Commission shall–
(A) ensure that such committee is composed of parents, television
broadcasters, television programming producers, cable operators, appropriate
public interest groups, and other interested individuals from the private sector and
is fairly balanced in terms of political affiliation, the points of view represented,
and the functions to be performed by the committee;
(B) provide to the committee such staff and resources as may be necessary
to permit it to perform its functions efficiently and promptly; and
(C) require the committee to submit a final report of its recommendations
within one year after the date of the appointment of the initial members.
(c) Requirement for Manufacture of Televisions That Block Programs.–Section
303 (47 U.S.C. 303), as amended by subsection (a), is further amended by adding at the end the
following:
“(x) Require, in the case of an apparatus designed to receive television signals that are
shipped in interstate commerce or manufactured in the United States and that have a picture
screen 13 inches or greater in size (measured diagonally), that such apparatus be equipped with a
feature designed to enable viewers to block display of all programs with a common rating, except
as otherwise permitted by regulations pursuant to section 330(c)(4).”.
(d) Shipping of Televisions That Block Programs.–
(1) Regulations.–Section 330 (47 U.S.C. 330) is amended–
(A) by redesignating subsection (c) as subsection (d); and
(B) by adding after subsection (b) the following new subsection (c):
“(c)(1) Except as provided in paragraph (2), no person shall ship in interstate commerce
or manufacture in the United States any apparatus described in section 303(x) of this Act except
in accordance with rules prescribed by the Commission pursuant to the authority granted by that section.
“(2) This subsection shall not apply to carriers transporting apparatus referred to in
paragraph (1) without trading in it.
“(3) The rules prescribed by the Commission under this subsection shall provide for the
oversight by the Commission of the adoption of standards by industry for blocking technology.
Such rules shall require that all such apparatus be able to receive the rating signals which have
been transmitted by way of line 21 of the vertical blanking interval and which conform to the
signal and blocking specifications established by industry under the supervision of the
Commission.
“(4) As new video technology is developed, the Commission shall take such action as the
Commission determines appropriate to ensure that blocking service continues to be available to
consumers. If the Commission determines that an alternative blocking technology exists that–
“(A) enables parents to block programming based on identifying programs
without ratings,
“(B) is available to consumers at a cost which is comparable to the cost of
technology that allows parents to block programming based on common ratings, and
“(C) will allow parents to block a broad range of programs on a multichannel
system as effectively and as easily as technology that allows parents to block
programming based on common ratings,
the Commission shall amend the rules prescribed pursuant to section 303(x) to require that the
apparatus described in such section be equipped with either the blocking technology described in
such section or the alternative blocking technology described in this paragraph.”.
(2) Conforming amendment.–Section 330(d), as redesignated by subsection
(d)(1)(A), is amended by striking “section 303(s), and section 303(u)” and inserting in
lieu thereof “and sections 303(s), 303(u), and 303(x)”.
(e) Applicability and Effective Dates.–
(1) Applicability of rating provision.–The amendment made by subsection
(b) of this section shall take effect 1 year after the date of enactment of this Act, but only
if the Commission determines, in consultation with appropriate public interest groups and
interested individuals from the private sector, that distributors of video programming
have not, by such date–
(A) established voluntary rules for rating video programming that contains
sexual, violent, or other indecent material about which parents should be informed
before it is displayed to children, and such rules are acceptable to the Commission; and
(B) agreed voluntarily to broadcast signals that contain ratings of such programming.
(2) Effective date of manufacturing provision.–In prescribing regulations to
implement the amendment made by subsection (c), the Federal Communications
Commission shall, after consultation with the television manufacturing industry, specify
the effective date for the applicability of the requirement to the apparatus covered by such
amendment, which date shall not be less than two years after the date of enactment of this Act.
SEC. 552. TECHNOLOGY FUND.
It is the policy of the United States to encourage broadcast television, cable, satellite, syndication, other video programming distributors, and relevant related industries (in consultation with appropriate public interest groups and interested individuals from the private sector) to–
(1) establish a technology fund to encourage television and electronics equipment
manufacturers to facilitate the development of technology which would empower parents
to block programming they deem inappropriate for their children and to encourage the
availability thereof to low income parents;
(2) report to the viewing public on the status of the development of affordable,
easy to use blocking technology; and
(3) establish and promote effective procedures, standards, systems, advisories, or
other mechanisms for ensuring that users have easy and complete access to the
information necessary to effectively utilize blocking technology and to encourage the
availability thereof to low income parents.
Subtitle C–Judicial Review
SEC. 561. EXPEDITED REVIEW.
(a) Three-Judge District Court Hearing.–Notwithstanding any other provision of
law, any civil action challenging the constitutionality, on its face, of this title or any amendment
made by this title, or any provision thereof, shall be heard by a district court of 3 judges
convened pursuant to the provisions of section 2284 of title 28, United States Code.
(b) Appellate Review.–Notwithstanding any other provision of law, an interlocutory or
final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding
this title or an amendment made by this title, or any provision thereof, unconstitutional shall be
reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be
filed not more than 20 days after entry of such judgment, decree, or order.
