Legal Concerns Regarding the Internet: Censorship And Free Speech

This post is part of a series of posts entitled A Legal Guide to the Internet. For a comprehensive list of articles contained in this series, click here

It is no secret that pornography is freely available on the Internet. The Internet has also been used to distribute “hate speech.” The question of the availability of pornography and the distribution of hate speech on the Internet is no less vexing than the question of pornography and hate speech in the off-line world.In reaction to the issue of children’s access to pornography on the Internet, Congress passed the Childrens’ On-line Protection Act (“COPA”), which was to go into effect on November 29, 1998. See 47 U.S.C. § 221. One day after COPA became law, a lawsuit was filed by the American Civil Liberties Union along with web site operators and content providers challenging the constitutionality of COPA. This challenge pits the First Amendment’s constitutional protection of freedom of speech against the desire to protect children from exposure to pornography. It follows an earlier attempt by Congress to regulate content on the Internet through the Communications Decency Act of 1996 (“CDA”) which attempted to regulate, among other things, the access of minors to “indecent” and “patently” offensive speech on the Internet. According to the CDA, it is a crime to transmit a “communication which is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten or harass another person.” Portions of the CDA were invalidated by the Supreme Court in ACLU v. Reno, 117S. Ct. 2329 (1997) as violative of the First Amendment. The invalidated portion made it a crime to send any “obscene or indecent” material on the Internet knowing that it could be seen by someone under eighteen. COPA is an attempt to cure the constitutional defects of the CDA. In this second lawsuit, ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), the plaintiffs contended that COPA will have a chilling effect on what can be communicated via the Internet and that COPA:

  1. violates the right to constitutionally protected speech
  2. is not the least restrictive means available to satisfy the government’s interests in protecting children
  3. is overbroad
  4. prohibits even useful information
  5. restricts anonymous communications
  6. is too vague.

The district court agreed with the ACLU’s contentions, granting a preliminary injunction against enforcement of COPA. On appeal, the Third Circuit affirmed, ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000). The U.S. Department of Justice filed a petition for writ of certiorari requesting review by the United States Supreme Court. On March 2, 2004, the United States Supreme Court found COPA unconstitutional. See Ashcroft v. ACLU 124 S.Ct. 2783 (2004) discussed in the section Advertising and Children.

Efforts to Regulate Speech on the Internet

Efforts to regulate speech on the Internet face tough constitutional barriers because of the extreme difficulty involved in narrowly tailoring restrictions so as to avoid imposing overbroad limits on legal types of speech.

One option that has been proposed is adoption of a “kids” top level domain, in which adult-only sites would be prohibited from operating, and an “xxx” top level domain where pornography and other adult sites would be available. Registrations in the “kids” top level domain are already offered through the Registry, although no measures are in place to keep adult-content out of websites offered at these addresses.

For more information see the following web sites of the organizations involved in the lawsuit against COPA; American Civil Liberties Union (, Electronic Frontiers Foundation (, and Electronic Privacy Information Center (

This and the following posts have been copied or adopted from A Legal Guide To The INTERNET – Sixth Edition, published through a collaborative effort by the Minnesota Department of Employment & Economic Development and Merchant & Gould.