Although several federal laws have sought to control Internet porn, none has specifically tried to forbid it. In large part this is a recognition of the legal protections pornography enjoyed toward the end of the twentieth century. Case law has established that much pornography is protected speech under the First Amendment. Obscenity is not protected. However, as the Supreme Court’s “community standards” doctrine acknowledges, communities measure obscenity differently: what is likely to be considered obscene by a jury in Utah is not guaranteed to similarly move a jury in New York. The difficulty of formulating one broad standard of obscenity for all communities is made even greater by the Internet’s being a global network, available everywhere at once.
Thus rather than trying to eliminate cyber porn, Congress has twice sought to protect children from exposure to it. These laws have yet to be enforced. Both wound up in court, where sections of each were ruled unconstitutional. Crucially, the fate of one law still remains as of 2002 on appeal.
The Communications Decency Act (CDA) of 1996 was lawmakers’ first attempt to regulate the availability of indecent and obscene material online to minors. The CDA prohibited the “knowing” dissemination of such material to minors over computer networks or telephone lines, establishing penalties for violations of up to five years imprisonment and fines of up to $250,000. But it quickly fell to a legal challenge brought by the American Civil Liberties Union (ACLU) and a coalition of major publishers. Bringing a traditional First Amendment case against censorship, they argued successfully that the law was too broad: in trying to protect kids, its prohibitions would have limited the speech of adults to a level suitable for children. After a special three-judge panel ruled against the law in Philadelphia in 1996, the Supreme Court by 7-2 vote in American Civil Liberties Union v. Reno (1997) held that the law unconstitutionally abridged freedom of speech, and thus struck down key provisions.
