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This trend is especially disappointing because of the shift toward a more nuanced view of sexual speech in the Court's Reno decision.
The CDA, passed in 1996, not only criminalized the transmission of "indecent" material to minors over the Internet; it also made it a crime to fail to prevent minors from viewing anything that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." But the Internet is not like a bookshop or a movie theater where one can easily distinguish between minors and adults; the ages and identities of people who visit a Web site or a chat room aren't readily ascertained.
What age groups are affected by what kinds of material, and in what ways?
The answers to these questions are important because they inform not only judicial decisions but a much wider range of policy questions.
But if, as the Supreme Court suggested in Reno, not all "indecent" speech is dangerous to young people, a number of interesting questions arise.
Although Pacifica only applied to broadcasting and left the jurisprudence of the print world intact, the decision still marked an important break with the Court's previous rulings. There was no evidence suggesting what harm would be caused, nor did the Court rely on psychological literature. But Justice Brennan had crafted Ginsberg on the explicit premise that "variable obscenity" was not constitutionally protected, whereas indecency was.When the Supreme Court overturned the Communications Decency Act, it was a triumph for civil liberties. What harm to minors do various kinds of sexual speech actually cause?Now new forms of censorship threaten to cut off young people's legitimate access to sexual information in a teenager be harmed by reading Angels in America, the Pulitzer Prize-winning Broadway play? These questions have taken on new urgency now that the Supreme Court has set aside the Communications Decency Act (CDA) and the nation is moving toward the widespread use of blocking software to enable schools, libraries, and parents to screen out sexual speech from the Internet.As recently as 1978, the Supreme Court had ruled in FCC v.Pacifica that the government could ban comedian George Carlin's "Filthy Words" monologue from radio and television—except during late-night hours—in order to protect minors.