Indecent Transmission Provision Law
Title 47 United States Code section 223 (a), set out earlier, provides in pertinent part for a prison term for one transmitting interstate or foreign telecommunications containing "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient . . . is under 18 years of age."
The statute did not however define "indecent" as therein used, nor require that the prohibited material be that "utterly without redeeming social importance for minors." (Ginsberg v. New York (1968) 390 U.S. 629, 646 [88 S. Ct. 1274, 1284, 20 L. Ed. 2d 195].)
The requirements for defining that matter which may be prohibited were set out in Miller v. California (1973) 413 U.S. 15, 24 [93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419]:
"(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest [citations];
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
The Communications Decency Act (CDA statute defined prohibited material by reference to only one of the three Miller v. California (1973) prongs.
The Reno v. American Civil Liberties Union (1997) court found the absence of the other Miller v. California (1973) criteria in the CDA prohibition to be fatal, in particular because omitting the societal value requirement essentially foreclosed appellate limitation upon the reach of the statute, leaving all contested issues merely ones of local fact. ( Reno, supra, 521 U.S. at pp. 873-874 [117 S. Ct. at pp. 2345-2346].)
Because "the breadth of this content-based restriction of speech" was excessive ( Reno, supra, at p. 879 [117 S. Ct. at p. 2348]), the Reno court found the indecent transmission provision "threatened to torch a large segment of the Internet community" and thus the provision was unconstitutional. ( Reno, supra, 521 U.S. at p. 882 [117 S. Ct. at pp. 2349-2350.)
In sum, the Reno court found that "the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech," as the CDA did. (Reno, supra, 521 U.S. at p. 874 [117 S. Ct. at p. 2346].)
Central to the holding was the court's finding that the CDA "would confer broad powers of censorship, in the form of a 'heckler's veto,' upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child . . . would be present." (Reno, supra, 521 U.S. at p. 880 [117 S. Ct. at p. 2349]; and see discussion, id., at pp. 874-880 [117 S. Ct. at pp. 2346-2349].)