chapter  7
13 Pages

Criminalizing online speech to “protect” the young

What are the benefits and costs?
WithMarjorie Heins

Criminalizing online speech – particularly about sexual subjects – is frequently justified as necessary to protect minors from physical or psychological harm. Certainly this was the rationale underlying the two criminal laws passed in the late 1990s by the United States Congress to control sexual expression on the Internet. The first law, the 1996 Communications Decency Act, or CDA, banned any “indecent” online communications that were “available” to minors – this covered essentially all Internet speech, certainly in newsgroups and websites, where speakers cannot readily determine the age of their listeners or screen the young ones out. “Indecency” was defined in the CDA basically as any words, ideas or images depicting or describing sexual or excretory activities or organs, if deemed “patently offensive” according to “contemporary community standards”. Because it unconstitutionally reduced the adult population of the Internet to writing, publishing and reading “only what is fit for children” (Butler v Michigan: 383), the CDA was invalidated as a violation of the First Amendment in Reno v ACLU.2