The Communications Decency Act was introduced in 1996 to regulate certain activities involving telecommunications media and devices, including adult content on cable TV and obscene or harassing phone calls. It sought to prohibit the use of telecommunications devices for obscene or harassing purposes and the use of the internet to transmit or access pornography. The law protected ISPs from lawsuits for content provided by third parties and allowed them to restrict certain materials. However, its restrictions on adult use of the internet were controversial, and two provisions were found to violate the guarantee of free speech by the US Constitution. The unintended consequence of the law was the legal protection of libel on the internet.
The Communications Decency Act, also known as Title V of the Telecommunications Act of 1996, was enacted by the United States to regulate or prohibit certain activities involving telecommunications media and devices. Originally introduced in the Senate as independent legislation aimed at regulating or eliminating indecency in cyberspace, it was later expanded to include provisions relating to adult content on cable television and obscene or harassing phone calls. The law was incorporated into the Telecommunications Act, which was being drafted at the time as the first substantial legislation update in that field since the formation of the Federal Communications Commission (FCC) in 1934.
Some of the activities that the Communications Decency Act sought to prohibit were the obscene or harassing use of telecommunications devices such as telephones, indecent programming on cable television, and the use of the Internet to transmit or access pornography. The Communications Decency Act also provided for the scramble of cable television signals to block non-subscriber access, especially adult programming, the right of cable operators to refuse to carry certain programs. The law was one of the first attempts at regulating the internet, keeping internet service providers (ISPs) immune from lawsuits for any content provided by third parties. For example, if a child accesses the Internet through the family computer and accesses a pornography website, the ISP cannot be held responsible. The law also protects ISPs that restrict certain materials or provide users with the means to restrict them, such as by providing filtering software that parents can install on their children’s computers.
The Communications Decency Act was immediately controversial due to the restrictions it attempted to place on what many considered legitimate adult use of the Internet, in the name of protecting children from pornography. Two sections in particular have criminalized the “knowing” transmission of “patently offensive, indecent or obscene materials” via the Internet to persons under the age of 18. A lawsuit was filed against these provisions on the day they were enacted (February 8, 1996), and in early June 1996, a Special Court convened to hear the case found that these two provisions violated the guarantee of free speech of the United States Constitution. A year later, on June 27, 1997, the United States Supreme Court upheld that ruling and reversed the two provisions.
The unintended consequences of the Communications Decency Act involved the legal protection of libel on the Internet. Section 230 protects Internet providers and users from liability for damages caused by third-party material posted on their site. Primarily intended to protect hapless ISPs on whose bandwidth minors could access pornography, Section 230 also ended up protecting Internet libel &emdash; that is to say, speech which, had it appeared in print, met the definition of libel.
While most of the Communications Decency Act was relatively incontrovertible, the judicial challenge it faced immediately following its enactment illustrates some of the problems faced by a free society in protecting the rights of its people to free expression by protecting its youth from the exercises more offensive than that freedom.
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