Children and the Internet: Legal Considerations in Restricting Access to Content

March 14, 2022 R47049

Children and the Internet: Legal
March 14, 2022
Considerations in Restricting Access to Content Eric N. Holmes
Throughout the internet’s history, the medium’s effect on children has been a recurring topic of
Legislative Attorney
interest to legislators and the public. In the internet’s early days, much attention focused on

children’s access to online pornography. Today, commentators have expressed concern with a
range of issues including targeted advertising, eating disorders, and self-harm.

One possible legislative approach to issues arising from children’s use of the internet is to regulate particular types of content
that might pose harms to children. When undertaking such efforts, legislators might consider that laws that restrict the
provision of expressive material may infringe on free speech rights guaranteed by the First Amendment of the United States
Constitution, and laws that target specific categories of speech based on its content are subject to the demanding strict
scrutiny standard of judicial review. Congress has attempted to criminalize the provision of internet content that is “harmful
to minors,” but courts applying the strict scrutiny standard have struck down these statutes as unconstitutional under the First
Amendment.
This report provides background on legal concepts implicated in the content-based regulation of expression under the First
Amendment. The background focuses on sexually explicit content, as Congress has historically focused on sexually explicit
material when it has sought to regulate online content that might be accessed by children. The report then details two
congressional attempts to restrict children’s access to material online and how courts applying First Amendment
jurisprudence reviewed—and ultimately struck down—this legislation. The report concludes with a discussion of
considerations for Congress should it again seek to legislate regarding children’s access to online material.
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Children and the Internet: Restricting Access to Content

n the waning months of 2021, former Facebook employee Frances Haugen delivered to news
media and federal regulators a trove of documents detailing the social media company’s
I internal practices.1 One of the first news reports to emerge from this disclosure was an article
detailing the impact of social media platform Instagram on teenage girls.2 The reporting on and
publication of these documents—subsequently known as the “Facebook Files”—kicked off a
burst of legislative activity, including a number of committee hearings and bills focused on the
health and safety of children online.3
Compared to other forms of media, the internet is a fledgling means of transmitting and receiving
information, having entered widespread public use over the past 30 years.4 During this short
history, Congress has not imposed broad internet regulations, but has repeatedly grappled with
issues relating to the medium’s effect on children. For example, the United States does not have a
law that comprehensively protects individuals’ personal information on the internet, but the
Children’s Online Privacy Protection Act5 creates such protections for children who are under 13
years of age. Even prior to the publication of the Facebook Files, some Members of the 117th
Congress had introduced several bills that would address children’s use of the internet, including
bills focused on data privacy6 and service provider liability for third-party content.7 Laws like
these that affect children’s ability to access particular content on the internet without explicitly
restricting the provision of that content might be characterized as indirect restrictions on the
material.
Congress has also enacted direct restrictions on content accessed by children over the internet, for
example, through statutes that criminalize sending certain types of material to minors.8 Federal
attempts to restrict access to internet content generally have not withstood constitutional scrutiny
when challenged in federal courts.9 There is, however, federal case law recognizing that, in
certain circumstances, Congress may enact laws that restrict children’s access to particular types
of information.10 Whether a legislative restriction of particular internet content could withstand
judicial scrutiny would likely depend on a number of factors, including the existence of a
demonstrable harm that a restriction on content may address and the government’s ability to
ensure that any restriction does not encumber more constitutionally protected speech than is
necessary. This report first discusses legal concepts relating to direct regulation of expressive
content before providing an overview of congressional attempts to regulate particular content on

1 Scott Pelley, Whistleblower: Facebook Is Misleading the Public on Progress Against Hate Speech, Violence,
Misinformation, CBS NEWS (Oct. 4, 2021, 7:32 AM), https://www.cbsnews.com/news/facebook-whistleblower-frances-
haugen-misinformation-public-60-minutes-2021-10-03/.
2 Georgia Wells, Jeff Horwitz, and Deepa Seetharaman, Facebook Knows Instagram Is Toxic for Teen Girls, Company
Documents Show, WALL STREET JOURNAL (Sept. 14, 2021, 7:59 AM), https://www.wsj.com/articles/facebook-knows-
instagram-is-toxic-for-teen-girls-company-documents-show-11631620739?mod=article_inline.
3 E.g., Protecting Kids Online: Instagram and Reforms for Young Users, Hearing Before the S. Comm. on Commerce,
Science, and Transportation, 117th Cong. (2021); Holding Big Tech Accountable: Legislation to Build a Safer Internet,
Hearing Before the H. Comm. on Energy & Commerce, 117th Cong. (2021); Federal Big Tech Tort Act, H.R. 5449, S.
2917, 117th Cong. (2021); KIDS Act, H.R. 5439, S. 2918, 117th Cong. (2021).
4 See Max Roser, Hannah Ritchie, and Esteban Ortiz-Ospina, Internet, OUR WORLD IN DATA (2015),
https://ourworldindata.org/internet (charting the worldwide growth of internet users from 1990 to 2016).
5 Children’s Online Privacy Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998).
6 E.g., Kids PRIVCY Act, H.R. 4801, 117th Cong. (2021).
7 E.g., CASE-IT Act, H.R. 285, 117th Cong. (2021).
8 E.g., 47 U.S.C. § 231.
9 See, e.g., Reno v. ACLU, 521 U.S. 844 (1997); ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008).
10 See Ginsberg v. New York, 390 U.S. 629 (1968); FCC v. Pacifica Found., 438 U.S. 726 (1978).
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the internet. The report concludes with a discussion of considerations for Congress in drafting
legislation that regulates children’s access to particular types of internet material.
Legal Concepts: Obscenity and Laws Restricting
Speech to Minors
The Free Speech Clause of the First Amendment to the U.S. Constitution limits the government’s
ability to enact laws that regulate expression.11 The First Amendment generally prohibits the
government from imposing restrictions that burden expression based on the content or viewpoint
of its message (known as content- or viewpoint-based restrictions).12 A restriction that regulates
speech based on its content is constitutional only if it survives “strict” judicial scrutiny, which
requires the government to demonstrate that the restriction is “narrowly tailored to serve
compelling state interests.”13 By contrast, content-neutral restrictions—restrictions that apply to
expressive activity without regard to its viewpoint or message—may survive First Amendment
challenges in court if the government demonstrates that the restrictions “advance[] important
governmental interests unrelated to the suppression of free speech” and “do[] not burden
substantially more speech than necessary to further those interests.”14 This analysis is referred to
as intermediate scrutiny.15
Examples of content-neutral restrictions that the Supreme Court has held do not violate the First
Amendment include:
 a law criminalizing the knowing destruction of selective service certificates;16
 a regulation prohibiting camping in certain parks;17 and
 laws requiring cable television operators to carry local broadcast stations.18
The Supreme Court has also held that the First Amendment permits content-based restrictions on
certain categories of so-called unprotected speech without the restriction being subject to strict

11 U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”). Though it specifically
limits the power of “Congress,” the Free Speech Clause also applies to state governments through the Fourteenth
Amendment and the judicial doctrine of incorporation. Gitlow v. New York, 268 U.S. 652, 665 (1925); U.S. CONST.
amend. XIV. For more discussion of the Free Speech Clause generally, see Cong. Rsch. Serv., First Amendment,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/amendment-1/ (last visited Mar. 10, 2022).
12 See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (“[T]he First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject matter, or its content.”); United States v.
Playboy Ent. Grp., Inc., 529 U.S. 803, 818 (2000) (observing that “[i]t is rare that a regulation restricting speech
because of its content will ever be permissible”); R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 391-92 (1992) (noting
that “[c]ontent-based regulations are presumptively invalid”).
13 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
14 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997) (citing United States v. O’Brien, 391 U.S. 367, 377
(1968)).
15 Under the most deferential form of constitutional scrutiny, known as “rational basis” review, a court will uphold a
law that is rationally related to a legitimate government purpose. E.g., Heller v. Doe, 509 U.S. 312, 320 (1993). Courts
typically do not apply rational basis review in free speech cases.
16 O’Brien, 391 U.S. 367.
17 Clark v. Community for Creative Non-Violence, 468 U.S. 268 (1984).
18 Turner, 520 U.S. 180.
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scrutiny.19 Categories of unprotected speech include, among others, fighting words,20
defamation,21 child pornography,22 and obscenity.23
Of the categories of unprotected speech, obscenity has perhaps been most relevant to prior
government efforts to restrict minors’ access to certain material.24 The Supreme Court set forth a
three-part test for obscenity in Miller v. California,25 a case involving a prosecution under a state
criminal law prohibiting the mass mailing of brochures that included sexually explicit images.
Under the Miller test, material is obscene for First Amendment purposes if:
1. “the average person, applying contemporary community standards would find
that the work, taken as a whole, appeals to the prurient interest”;
2. “the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by applicable state law”; and
3. “the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.”26
The Supreme Court has upheld laws that prohibit the dissemination of obscenity when obscenity
was narrowly defined or construed in accordance with the Miller standard.27 The Miller Court and
subsequent courts have cautioned, however, that sexually explicit material that does not meet
every prong of the Miller test is generally subject to ordinary First Amendment protection.28
An additional consideration for governments attempting to restrict access to certain material by
minors is that minors, like adults, possess First Amendment rights.29 Governments thus frequently
word restrictions for minors in a way to track existing judicial definitions for categories of
unprotected speech (such as obscenity).30 The Supreme Court has held, nonetheless, that material
may be obscene for a minor even if it is not obscene for adults. In Ginsberg v. New York, the

19 See R.A.V., 505 U.S. at 383 (recognizing historical acceptance of restrictions on speech “in a few limited areas,
which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality’”) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942)). Only narrow “traditional” categories may be regulated because of their content, standing as exceptions to
general prohibitions on content regulation. See id. Though often described as “unprotected speech,” speech that falls
into traditionally unprotected categories is still subject to some First Amendment protection, including prohibitions on
viewpoint discrimination. Id. at 383–84.
20 Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).
21 Beauharnais v. Illinois, 343 U.S. 250, 254–55 (1952).
22 New York v. Ferber, 458 U.S. 747, 764 (1982).
23 Roth v. United States, 354 U.S. 476, 483 (1957); see also CRS In Focus IF11072, The First Amendment: Categories
of Speech, by Victoria L. Killion.
24 Laws addressing the safety of children on the internet have also addressed child pornography and the exploitation of
children. E.g., Children’s Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763A-335 (2000).
25 413 U.S. 15 (1973).
26 Id. at 24 (internal quotations and citations omitted).
27 See, e.g., Hamling v. United States, 418 U.S. 87 (1974) (upholding constitutionality of federal obscenity statute);
Ward v. Illinois, 431 U.S. 767 (1977) (upholding constitutionality of state obscenity statute).
28 Miller, 413 U.S. at 27; see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498–99 (1985) (clarifying that
“material that provoke[s] only normal, healthy sexual desires” is not obscene).
29 See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) (holding that school regulation prohibiting
students from wearing black armbands violates students’ First Amendment rights); Erznoznik v. City of Jacksonville,
422 U.S. 205, 213 (1975) (holding that a city ordinance aimed at preventing minors from viewing nudity was
overbroad).
30 See, e.g., 47 U.S.C. § 231 (defining “material that is harmful to minors” using language from Miller).
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Court upheld a state criminal conviction for selling magazines depicting nudity to a minor under
the age of 17.31 The Court observed that the magazines at issue would not be obscene for adults,32
but recognized New York’s power to define “obscenity” differently for minors.33 When the
government exercises its power to regulate material that is obscene to minors, however, it must
narrowly tailor the regulation to avoid interfering with the First Amendment freedoms of adults.34
That requirement is not necessarily satisfied by limiting the application of the law solely to
material accessed by minors.35
On several occasions, the Supreme Court has held that there are limits to what types of expression
may be characterized as unprotected speech. Obscenity, for example, does not encompass
depictions of violence or material that is “shocking.”36 It extends only to certain depictions of
sexual conduct.37 Government efforts to identify new categories of unprotected speech have
routinely failed at the Supreme Court.38 With respect to minors in particular, the Supreme Court
has assessed attempts to expand unprotected speech by asking if “a longstanding tradition” exists
of restricting children’s access to the particular content—holding, for example, that no such
tradition exists of restricting children’s access to depictions of violence.39
Historical Antecedents: FCC Regulation of Indecent
Content
Efforts at the federal level to control content accessed by minors predate the internet altogether. In
1948, Congress amended the Communications Act of 193440 to prohibit the broadcast of
“obscene, indecent, or profane language.”41 The Federal Communications Commission (FCC) has

31 390 U.S. 629 (1968). Although the state law in Ginsberg predates the Supreme Court’s decision in Miller, its
language referenced then-contemporary interpretations of obscenity. Compare N.Y. PENAL LAW § 484–h, reprinted in
Ginsberg, 390 U.S. at 645–46, app. A (defining “harmful to minors” as material that appeals to the prurient interest of
minors, is patently offensive to prevailing community standards, and is without redeeming social importance), with A
Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Att’y Gen. of Massachusetts, 383 U.S. 413, 418
(1966) (defining obscenity as material that appeals to a prurient interest, is patently offensive to contemporary
community standards, and is without redeeming social value).
32 Ginsberg, 390 U.S. at 631.
33 Id. at 641.
34 See Butler v. Michigan, 352 U.S. 380, 382–83 (1957) (striking down a state criminal law banning the sale to the
general public of books that “corrupt[] the morals of youth” because such an offense “reduce[s] the adult population . . .
to reading only what is fit for children”); Ginsberg, 390 U.S. at 634–35 (noting that the state criminal law at issue does
not prohibit the sale to adults of material that is obscene to minors and therefore is not invalid under Butler). Similarly,
the Ginsberg court noted, “the prohibition against sales to minors does not bar parents who so desire from purchasing
the magazines for their children.” Id.at 639.
35 See, e.g., Reno v. ACLU, 521 U.S. 844, 876 (1997) (holding that a law prohibiting certain communications to
individuals under 18 would burden speech between adults). This case is discussed in more detail at “Reno v. American
Civil Liberties Union,” infra.
36 Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 792–93 (2010).
37 Miller v. California, 413 U.S. 15, 24 (1973). Likewise, material may be “indecent” or “patently offensive” without
being obscene. Reno, 521 U.S. at 877.
38 See, e.g., United States v. Stevens, 559 U.S. 460, 468–72 (2010) (declining to identify “depictions of animal cruelty”
as unprotected speech); Brown, 564 U.S. at 792 (holding the same for violent video games).
39 Brown, 564 U.S. at 795–96.
40 Pub. L. No. 73-416, 48 Stat. 1064 (1934).
41 Pub. L. No. 80-772, 62 Stat. 683, 769 (1948) (codified as amended at 18 U.S.C. § 1464).
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interpreted this provision as granting it authority to impose sanctions on broadcast stations that
broadcast indecent language. The FCC first developed a test for indecency in response to a
complaint filed with the commission following the broadcast of a satiric monologue.42 In a
declaratory order, the FCC defined indecent speech as “language that describes, in terms patently
offensive as measured by contemporary community standards for the broadcast medium, sexual
or excretory activities and organs, at times of day when there is a reasonable risk that children
may be in the audience.”43 In response to this order, in which the FCC also concluded that the
monologue in question was “indecent,”44 the station’s owner sought judicial review. Among other
things, the owner argued that the FCC could not constitutionally regulate “indecent” speech,
which the FCC itself distinguished from obscenity.45
In FCC v. Pacifica Foundation, the Supreme Court held that the FCC could regulate the indecent
broadcast without violating the First Amendment.46 The Court explained that, although indecent
speech is not without constitutional protection, broadcasting in particular has “the most limited
First Amendment protection” of all forms of media.47 The Pacifica court focused on two
particular features of broadcast that warranted lesser First Amendment protection. First,
broadcasting is “uniquely pervasive” and may reach individuals in public as well as in their
homes, and “[b]ecause the broadcast audience is constantly tuning in and out, prior warnings
cannot completely protect the listener or viewer from unexpected program content.”48 Second,
“broadcasting is uniquely accessible to children,” and a broadcaster, as compared to a bookstore
or movie theater, can exercise no control over whether a child receives a particular broadcast.49
Since the Pacifica decision, the FCC has imposed monetary penalties for indecent broadcasting
on several occasions.50 Although broadcasters have repeatedly challenged the FCC’s authority,
the Supreme Court has not repudiated Pacifica or otherwise ruled on whether the FCC’s
regulation of indecent broadcasts violates the First Amendment.51
The Supreme Court emphasized the narrowness of the Pacifica holding in Sable Communications
of California, Inc. v. FCC,52 a case in which the Court partially struck down a ban in the
Communications Act on indecent and obscene commercial telephone messages (also referred to
as “dial-a-porn”).53 The ban in Sable applied to all indecent telephone messages, regardless of
whether adults or children received these messages.54 After first upholding the portions of the ban

42 Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94 (1975).
43 Id. at 98.
44 Id. at 99.
45 Id. at 98.
46 438 U.S. 726 (1978).
47 Id. at 748.
48 Id.
49 Id. at 749.
50 E.g., WDBJ Television, Inc., 30 FCC Rcd. 3024 (2015); Fox Television Station, Inc., 25 FCC Rcd. 7074 (2010);
Entercom Kansas City License, LLC, 19 FCC Rcd. 25011 (2004).
51 See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 258 (2012) (declining to address First Amendment
challenges to FCC’s current indecency policy). Some Justices have expressed the view that Pacifica was wrongly
decided and should be reconsidered. See id. at 259 (Ginsburg, J., concurring); FCC v. Fox Television Stations, Inc., 556
U.S. 502, 530–35 (2009) (Thomas, J., concurring) (analyzing Pacifica and suggesting that “changes in factual
circumstances might well support a departure from precedent”).
52 492 U.S. 115 (1989).
53 47 U.S.C. § 223(b).
54 Sable Commc’ns, 492 U.S. at 127.
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that applied to obscene telephone messages,55 the Court struck down the ban on indecent
messages. The Court distinguished the dial-a-porn ban’s indecency provisions from the regulatory
scheme it upheld in Pacifica in two ways. First, the FCC’s regulation of indecent broadcasts was
not a “total ban” on indecent broadcasts, and instead sought to prevent the broadcast of indecent
material at certain times of day.56 Second, Pacifica “relied on the ‘unique’ attributes of
broadcasting,” which the Sable court noted are “substantially different” from private telephone
communications.57
The FCC has also declined to regulate indecent material on cable and satellite television, which it
argues is outside its statutory jurisdiction.58 The Supreme Court rejected a legislative effort to
require cable operators to segregate indecent programming on leased access channels to a single
blocked channel, reasoning that such a regulation was more extensive than necessary to protect
children from accessing indecent material.59 Similarly, the Supreme Court held unconstitutional a
federal law that required cable television operators to “scramble” sexually explicit channels to
nonsubscribers or limit programming on those channels to certain hours.60
In short, federal power over indecent, non-obscene material has been limited to control exercised
over broadcast communications. Efforts to expand this power have been unsuccessful, even in
similar industries such as telephone communication or cable television.
First Attempt: The Communications Decency Act
The first internet-focused federal legislation to address material accessed by children was the
Communications Decency Act (CDA), enacted as part of the Telecommunications Act of 1996.61
According to the bill’s legislative history, Congress intended the CDA as a whole to “modernize
the existing protections against obscene, lewd, indecent or harassing uses of a telephone.”62 As
originally introduced, the CDA sought to accomplish this goal by extending to the internet
existing penalties in the Communications Act and federal criminal law for transmitting obscene or
indecent material.63 A House amendment added to the CDA in conference became the liability
protections included in Section 230 of the Communications Act.64 Although Section 230 is still in

55 Id. at 124.
56 Id.; see Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94, 98 (1975) (proscribing
indecent content “at times of the day when there is a reasonable risk that children may be in the audience”).
57 Sable Commc’ns, 492 U.S. at 127–28 (noting that dial-a-porn services require callers to call into a service).
58 See Various Complaints Against the Cable/Satellite Television Program Nip/Tuck, 20 FCC Rcd. 4255, 4256 (2005)
(“the criminal code restriction on indecency applies only to ‘means of radio communication’ and therefore not cable
communications”).
59 Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 755–56 (1996). In the same case, the Court
did uphold a statute permitting cable operators to regulate indecent material, determining that a permissive approach to
indecent programming was sufficiently narrow to avoid constitutional concerns. See id. at 743–44 (plurality opinion).
60 United States v. Playboy Enter. Grp., Inc., 529 U.S. 803, 807 (2000).
61 Pub. L. No. 104-104, tit. V, 110 Stat. 133 (1996).
62 S. REP. NO. 104-23, at 59 (1995) (Conf. Rep.); see also id. (“The decency provisions increase the penalties for
obscene, indecent, harassing or other wrongful uses of telecommunications facilities; protect privacy; protect families
from uninvited and unwanted cable programming which is unsuitable for children and give cable operators authority to
refuse to transmit programs or portions of programs on public or leased access channels which contain obscenity,
indecency, or nudity”).
63 See Communications Decency Act, S. 314, 104th Cong. (as introduced, Feb. 1, 1995).
64 See Communications Act of 1995, H.R. 1555, 104th Cong. (as amended, Aug. 4, 1995).
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force, the Supreme Court held unconstitutional the CDA’s provisions pertaining to indecent
material on the internet.65
Legislative History and Enactment
The CDA was one of several proposed congressional responses to a growing concern among
Senators regarding the availability of pornography on the internet.66 The CDA approached the
issue largely through criminalization, amending existing restrictions on obscene telephone calls to
cover the use of an “interactive computer service” to distribute certain content that is obscene,
“indecent,” or “patently offensive.”67 Other proposed legislation sought either to criminalize the
transmission of pornography online68 or to study its prevalence.69
The CDA’s sponsors revised the bill over time70 and emphasized its focus on “bad actors,”71
perhaps to address possible First Amendment vulnerabilities.72 After the CDA passed the Senate,
the conference committee made several other adjustments to bolster the law’s ability to withstand
constitutional challenges, such as adopting portions of the FCC’s formulation of “indecency”
from Pacifica in describing prohibited material.73 As enacted, the CDA made it illegal to
knowingly use an “interactive computer service”
to send to a specific person or persons under 18 years of age, or . . . to display in a manner
available to a person under 18 years of age, any comment, request, suggestion, proposal,
image, or other communication that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards, sexual or excretory

65 For more discussion of Section 230 generally, see CRS Report R46751, Section 230: An Overview, by Valerie C.
Brannon and Eric N. Holmes.
66 See generally Cyberporn and Children: The Scope of the Problem, the State of the Technology, and the Need for
Congressional Action: Hearing on S. 892 Before the S. Comm. on the Judiciary, 104th Cong. (1995) (discussing
pornography on the internet in connection with another bill).
67 The term “interactive computer service” is defined as “any information service, system, or access software provider
that provides or enables computer access by multiple users to a computer server, including specifically a service or
system that provides access to the Internet and such systems operated or services offered by libraries or educational
institutions.” 47 U.S.C. § 230(f)(2). The terms “indecent” and “patently offensive” are left undefined in the CDA,
though the law as passed further qualified the term “patently offensive” by measuring the term against “contemporary
community standards.” See infra note 74 and accompanying text.
68 E.g., Protection of Children from Computer Pornography Act, S. 892, 104th Cong. (1995).
69 E.g., A Bill to Require the Attorney General to Study and Report to Congress on Means of Controlling the Flow of
Violent, Sexually Explicit, Harassing, Offensive, or Otherwise Unwanted Material in Interactive Telecommunications
Systems, S. 714, 104th Cong. (1995).
70 141 Cong. Rec. S8088–89 (daily ed. June 9, 1995) (statement of Sen. Exon) (detailing revisions made to the CDA
“in response to concerns raised by the Justice Department, the profamily and antipornography groups, and the first
amendment scholars”).
71 See 142 Cong. Rec. S707 (daily ed. Feb. 1, 1996) (statement of Sen. Coats) (noting that “[o]n-line services and
access software providers” would be liable under the CDA only “where they are conspirators with, advertise for, are
involved in the creation of or knowing distribution of obscene material or indecent material to minors”); see also H.R.
Rep. No. 104-458, at 187–88 (1996) (Conf. Rep.) (outlining defenses to the CDA’s provisions to “assure that attention
is focused on bad actors and not those who lack knowledge of a violation”).
72 See Fred H. Cate, Indecency, Ignorance, and Intolerance: The First Amendment and the Regulation of Electronic
Expression, 1995 J. ONLINE L., ART. 5, paras. 19–34 (1995) (discussing potential First Amendment issues with the
CDA); Virginia I. Postrel, Knocking Some Sense Into Senate Censors: A ‘Smart Wing’ in the House is Crafting a
Compromise for Monitoring the Net, L.A. TIMES (July 2, 1995) (quoting Speaker Newt Gingrich describing the CDA as
“a violation of free speech”).
73 H.R. Rep. 104-458, at 201–02 (1996) (Conf. Rep.). In making this change, the conference committee noted that the
indecency formulation from Pacifica had survived constitutional scrutiny in the broadcast context. Id.
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activities or organs, regardless of whether the user of such service placed the call or
initiated the communication . . . .74
The CDA also prohibited the use of a “telecommunications device” to knowingly create and
transmit material that is “obscene or indecent” when the sender knows that the recipient is under
18 years old.75 The law defined the term “telecommunications device” to exclude interactive
computer services, but otherwise left the term undefined.76
Congress included two “affirmative defenses” to these prohibitions that would allow someone
otherwise liable under the CDA to avoid prosecution: one for taking “good faith, reasonable,
effective, and appropriate actions” to restrict access by minors to such indecent or offensive
communications, and one for restricting access to such communications “by requiring the use of a
verified credit card, debit account, adult access code, or adult personal identification number.”77
The law also included an exemption for individual “access providers” who transmit or store third-
party content.78
Reno v. American Civil Liberties Union
Following the CDA’s passage, civil rights groups sued the United States to challenge the
constitutionality of the Act’s prohibitions. The Supreme Court struck down portions of the law in
Reno v. American Civil Liberties Union, holding that the CDA provisions aimed at protecting
minors from indecent and offensive internet communications violated the First Amendment.79
Writing for the majority, Justice Stevens explained that the government’s reliance on Pacifica was
misplaced because the Court’s decision in that case turned in part on unique qualities of broadcast
as a medium—qualities that the Court determined “are not present in cyberspace.”80 The Court
also emphasized that, in Pacifica, it had affirmed the government’s ability “to designate when—
rather than whether—it would be permissible to air” indecent material, while the CDA imposed
“broad categorical prohibitions” that applied at all times.81 The Court similarly observed that the
language in the CDA was vaguer and broader than prohibitions upheld in earlier cases.82 Having
noted these distinctions from its earlier decisions, the Court held that the CDA was a content-
based restriction on expressive activity that applied beyond historically unprotected categories of
speech (such as “indecent” and “patently offensive” speech).83

74 Pub. L. No. 104-104, tit. V, § 502, 110 Stat. 133, 133–34 (1996); see also supra note 43 and accompanying text.
75 Id. at 133.
76 Id. at 135. Though the CDA’s legislative history does not discuss the intended scope of the “telecommunications
device” prohibition, a federal district court concluded that the prohibition likely covered “users who traffic in indecent
and patently offensive materials on the Internet” while not extending to service providers exempted by the “interactive
computer service” carveout. See ACLU v. Reno, 929 F. Supp. 824, 828 n.5 (E.D. Pa. 1996).
77 110 Stat. at 134.
78 Id.
79 521 U.S. 844 (1997). The Supreme Court upheld portions of the CDA prohibiting transmission of obscene material,
which the civil rights groups challenging the law conceded could be prohibited consistent with the First Amendment.
Id. at 883.
80 Id. at 868–69. Those qualities include a history of extensive regulation, a scarcity of available frequencies, and an
“invasive” nature. Id. at 868.
81 Id. at 867.
82 See id. at 865–66, 870–74 (comparing the CDA to language upheld in Ginsberg and Miller).
83 Id. at 874.
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The Court then applied strict scrutiny analysis and held that the government had failed to
demonstrate that the CDA’s broad prohibitions were narrowly tailored to achieve the law’s
purpose.84 In describing the CDA as unduly broad, Justice Stevens compared the law to the dial-a-
porn ban struck down in Sable, as both laws involved a total ban on material deemed unfit for
children even if the material was shared solely between adults.85 The CDA’s prohibitions applied
to speech “display[ed] in a manner available to a person under 18 years of age.”86 The
government argued that this prohibition, which on its face applies only to communications made
with minors, would not affect communication between adults.87 In rejecting this contention, the
Court observed that, “[g]iven the size of the potential audience for most messages [shared online],
in the absence of a viable age verification process, the sender must be charged with knowing that
one or more minors will likely view it.”88 Accordingly, in the face of the CDA’s criminal
punishment, the Court believed that adults would likely decline to transmit protected
communications to large online groups, creating an impermissible burden on their
communications to adults in the group.89
Second Attempt: The Child Online Protection Act
A year after the Supreme Court’s decision in Reno v. American Civil Liberties Union, Congress
again acted to try to make the internet safer for children, passing the Child Online Protection Act
(COPA).90 The House Commerce Committee report stated that COPA was a direct response to the
Supreme Court striking down the CDA.91 The committee opined that COPA would not impose
unreasonable burdens on adult communications and thus would avoid the constitutional concerns
raised by the CDA.92
COPA amended the Communications Act to add criminal penalties for anyone who “knowingly
and with knowledge of the character of the material, in interstate or foreign commerce by means
of the World Wide Web, makes any communication for commercial purposes that is available to
any minor and that includes any material that is harmful to minors.”93 For purposes of this
restriction, “material that is harmful to minors” is:
any communication, picture, image, graphic image file, article, recording, writing, or other
matter of any kind that is obscene or that—
(A) the average person, applying contemporary community standards, would find, taking
the material as a whole and with respect to minors, is designed to appeal to, or is designed
to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors,
an actual or simulated sexual act or sexual contact, an actual or simulated normal or

84 Id. at 879.
85 Id. at 875.
86 Pub. L. No. 104-104, tit. V, § 502, 110 Stat. 133, 133–34 (1996).
87 Id. at 876.
88 Id.
89 Id.
90 Pub. L. No. 105-277, div. C, tit. XIV, 112 Stat. 2681-736 (1998).
91 H.R. REP. NO. 105-775, at 5 (1998).
92 Id.
93 47 U.S.C. § 231(a)(1).
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perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast;
and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for
minors.94
The committee report claimed that COPA would be consistent with Supreme Court jurisprudence
because the law limited its proscriptions to commercial speech on the World Wide Web and
because the law’s definition of restricted content tracked the Supreme Court’s language from
Miller and Ginsberg defining obscenity for minors.95 COPA also provided that an individual who
made a good faith effort to restrict access to material that was harmful to minors might avoid
prosecution.96
Litigation: Ashcroft v. American Civil Liberties Union
Like the CDA, COPA faced constitutional challenges shortly after its passage. Unlike those
directed at the CDA, courts did not resolve the objections to COPA in one fell swoop: in all, the
law’s challengers and the government litigated the Act’s constitutionality for more than ten
years.97 The protracted legal battle concluded when the Supreme Court declined to review a Third
Circuit Court of Appeals decision permanently enjoining the government from enforcing the law.
Though the Supreme Court did not issue any final rulings on COPA’s constitutionality, it did
issue two decisions addressing the law’s relationship to the First Amendment, including one
opinion concluding that the law was likely unconstitutional.
The Supreme Court first considered COPA in Ashcroft v. American Civil Liberties Union
(Ashcroft I),98 confronting the narrow question of whether the Act’s use of “community
standards” in defining material that is harmful to minors rendered the law unconstitutional.
Ashcroft I followed a district court order granting a preliminary injunction, which would have
prevented COPA’s enforcement pending a trial on its constitutionality.99 On appeal, the Third
Circuit affirmed the district court’s decision, holding that COPA’s “community standards”
language would “essentially require[] that every Web publisher subject to the statute abide by the
most restrictive and conservative state’s community standards in order to avoid criminal
liability.”100 The use of “community standards” to define prohibited material originated with the
Supreme Court’s decision in Miller, which required an application of “contemporary community
standards” to assess whether particular speech is obscene.101 For media that predate the internet,
“community standards” were based on the geographic distribution area of the material.102 Both

94 Id. § 231(e)(6).
95 H.R. REP. NO. 105-775, at 13 (1998).
96 47 U.S.C. § 231(c)(1).
97 Plaintiffs, including civil rights groups and websites, filed a complaint challenging the law in 1998, and the most
recent activity in the case is a Supreme Court denial of certiorari in 2009. Complaint, ACLU v. Gonzales, No. 98-5591
(E.D. Pa. Oct. 22, 1998), ECF No. 1; denial of petition for writ of certiorari, Mukasey v. ACLU, No. 07-2539 (U.S.
Jan. 21, 2009).
98 535 U.S. 564, 566 (2002) [hereinafter Ashcroft I].
99 ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1998). The Third Circuit Court of Appeals affirmed this decision,
holding that COPA was likely invalid for overbreadth. ACLU v. Reno, 217 F.3d 162, 166 (3d Cir. 2000).
100 ACLU v. Reno, 217 F. 3d 162, 166 (3d Cir. 2000).
101 Miller v. California, 413 U.S. 15, 24 (1973).
102 E.g., Miller, 413 U.S. at 31 (noting that California juries should consider community standards of the State of
California); see also Sable Commc’ns of California, Inc. v. FCC, 492 U.S. 115, 125 (1989) (applying the Miller
“community standard” test to a federal statute and concluding that different standards would govern in different federal
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the CDA and COPA used “community standards” to define their prohibited material, but the Reno
Court cautioned that applying a “community standards” test to internet material would mean “that
any communication available to a nation wide audience will be judged by the standards of the
community most likely to be offended by the message.”103 The question before the Supreme
Court in Ashcroft I thus turned on this issue: whether relying on “community standards” for what
is a nationally accessible medium would burden more speech than necessary.
A divided Court held that the “community standards” element, standing alone, did not violate the
First Amendment and vacated the preliminary injunction.104 Writing for four members of the
Court, Justice Thomas observed several differences between COPA’s use of “community
standards” and the CDA’s.105 Though both the CDA and COPA would impose a community-
standards criterion in determining whether particular material was harmful to children, COPA (in
contrast to the CDA) required that the material appeal to the prurient interest and excluded
material with serious literary, artistic, political, or scientific value.106 These adjustments, the Court
held, avoided concerns raised by the CDA’s use of community standards.107 Several other Justices
wrote separately to express their belief that the “community standards” language alone was
insufficient to invalidate the law, but that the Court should resolve how to apply a “community
standards” test to the internet.108
After its decision in Ashcroft I, the Supreme Court remanded the case to the Third Circuit Court
of Appeals for further proceedings. The Third Circuit then held that COPA was a content-based
restriction on speech that was likely not narrowly tailored to serve the interest of protecting
minors from harmful material online.109 Specifically, the Third Circuit observed that the Act’s
definitions of “material harmful to minors” and “commercial purposes” were unconstitutionally
vague and overbroad.110 The Court of Appeals therefore affirmed the trial court’s original order
enjoining the government from enforcing COPA. The Supreme Court reviewed and affirmed this
decision in Ashcroft v. American Civil Liberties Union (Ashcroft II).111 The Court, like the Third

jurisdictions); Hamling v. United States, 418 U.S. 87, 106 (1974) (same).
103 Reno, 521 U.S. at 877–78; see also id. (“[A] parent who sent his 17-year-old college freshman information on birth
control via email could be incarcerated even though neither he, his child, nor anyone in their home community found
the material ‘indecent’ or ‘patently offensive,’ if the college’s town community thought otherwise.”).
104 Ashcroft I, 535 U.S. at 573. Although eight of the nine Justices agreed that COPA’s “community standards”
language did not render the law unconstitutional, no opinion received support from a majority of the Court. In these
circumstances, “the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds. . . .” Marks v. United States, 430 U.S. 188, 194 (1977) (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976)). For more information on application of this rule, see CRS Legal Sidebar LSB10113,
What Happens When Five Supreme Court Justices Can’t Agree?, by Kevin M. Lewis.
105 Ashcroft I, 535 U.S. at 577–78 (plurality opinion).
106 Id.
107 Id.
108 See id. at 586 (O’Connor, J., concurring) (advocating the adoption of a national “community standard” for obscenity
in light of the development of the internet as a medium); id. at 589–90 (Breyer, J., concurring) (same); id. at 591–602
(Kennedy, J., concurring) (opining that the Child Online Protection Act’s “community standards” language may create
constitutional issues if read in conjunction with other portions of the law, even if insufficient to invalidate the law
alone).
109 ACLU v. Ashcroft, 322 F.3d 240, 243 (3d Cir. 2003). The Third Circuit observed that, while COPA’s proscribed
material used language from the Supreme Court’s decision in Miller, the Miller standard defines material based on how
it is perceived by adults, rather than minors. Id. at 246. On this basis, the Third Circuit applied a strict scrutiny analysis,
as COPA targeted speech outside the traditionally unprotected category of obscenity. Id. at 247.
110 Id. at 251.
111 542 U.S. 656 (2004) [hereinafter Ashcroft II].
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Circuit, applied strict scrutiny analysis to assess the law’s constitutionality.112 Writing for five
members of the Court, Justice Kennedy held that “a number of plausible, less restrictive
alternatives to the statute” existed that would not be less effective.113 The Court therefore upheld
the preliminary injunction,114 and the case proceeded to trial.
The Eastern District of Pennsylvania held a bench trial on the law’s constitutionality and
permanently enjoined the Attorney General from enforcing the law after concluding that it was
unconstitutionally vague and overbroad.115 The Third Circuit affirmed on appeal.116 The Supreme
Court declined to review the Third Circuit’s decision, ending the litigation.
Considerations for Congress
The Supreme Court’s decisions in Ashcroft I and II and Reno offer several glimpses into how the
Court might address laws that directly regulate minors’ access to internet content. Because both
the CDA and COPA were “content-based” restrictions on speech that did not limit their
application only to an unprotected category of speech, the Court applied a strict scrutiny analysis,
asking if the law at issue was narrowly tailored to achieve a compelling government interest.117
The strict scrutiny standard is historically difficult to satisfy, as content-based restrictions on
speech are “presumptively invalid.”118 A law that restricts children’s access to particular types of
internet content likely would be assessed under this standard.
A law would be less likely to come under strict scrutiny if it targeted historically unprotected
categories of speech. The Supreme Court’s historic reliance on Ginsberg and Miller, which focus
on obscene material, illustrates this. As discussed above, obscenity is a narrow category of speech
that encompasses only certain sexually explicit material. Obscenity restrictions may therefore fail
to reach non-sexually explicit content.119 Content that is not “obscene” as a legal matter may still
fall within one of the other unprotected categories of speech that the Supreme Court has
recognized.120 Congress has passed a number of laws regulating the dissemination of content that
falls into these unprotected categories.121 Recent legislative efforts at both the federal and state

112 Id. at 660. In dissent, Justice Scalia argued that “[n]othing in the First Amendment entitles the type of material
covered by [the Child Online Protection Act]” to strict scrutiny. Id. at 676 (Scalia, J., dissenting).
113 Id. at 666–67 (discussing the use of blocking and filtering software as a less restrictive and potentially more
effective means of restricting children’s access to certain material).
114 Id. at 673.
115 ACLU v. Gonzales, 478 F. Supp. 2d 775, 816–20 (E.D. Pa. 2007). The district court identified several terms and
phrases in the statute that it held to be vague either because the statute did not define the terms or defined them with
insufficient precision. Id. at 816–19.
116 ACLU v. Mukasey, 534 F.3d 181, 184 (3d Cir. 2008).
117 See Reno v. ACLU, 521 U.S. 844, 874 (1997); Ashcroft II, 542 U.S. at 660. But see id. at 676 (Scalia, J., dissenting)
(arguing that the material covered by COPA is not protected by the First Amendment and therefore strict scrutiny
should not apply).
118 R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
119 E.g., Wells, supra note 2 (discussing how content on Instagram may have contributed to teen girls developing eating
disorders); Xanax, Ecstasy, and Opioids: Instagram Offers Drug Pipeline to Kids, TECH TRANSPARENCY PROJECT (Dec.
7, 2021), https://www.techtransparencyproject.org/articles/xanax-ecstasy-and-opioids-instagram-offers-drug-pipeline-
kids (exploring the prevalence of drug-related ads and content targeted to teens on Instagram).
120 See supra note 19 and accompanying text.
121 E.g., 18 U.S.C. § 2252A (criminalizing the online dissemination of child pornography); id. § 875(c) (criminalizing
the transmission of an interstate or foreign communication containing a threat of kidnapping or injury); id. § 1037
(criminalizing activities involving fraudulent and deceptive email messages); id. § 119 (criminalizing the publication of
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level to define new categories of unprotected speech, however, have been unsuccessful.122
Whether a legislative attempt to regulate particular content is subject to strict scrutiny may
therefore depend on how closely the content being regulated fits into existing categories of
unprotected speech.
A federal restriction modelled after Miller’s language may also raise questions as to how the
Miller test applies on the internet in light of the Supreme Court’s decisions in Reno and Ashcroft
I. When the Court confronted COPA’s “community standards” language in Ashcroft I, Justice
Thomas suggested that such standards would depend on the views of a local community receiving
the material.123 Justice Thomas’s opinion was not a majority opinion, and two Justices voiced
support for the development of a national community standard for obscenity, muddying the
picture of how lower courts should apply “community standards” to the internet.124 Lower courts
applying obscenity statutes to the internet have inconsistently applied Ashcroft I: the Ninth Circuit
has construed Ashcroft I to hold that a national community standard applies to obscenity on the
internet,125 while the Eleventh Circuit held in an unpublished decision that a local standard
applies.126
A content-based law that targets protected speech must advance a compelling governmental
interest and must be narrowly tailored to serve that interest. The Supreme Court has regularly
affirmed that government has a compelling interest in the welfare of children.127 Although the
Court has accepted this interest as compelling without much interrogation in cases involving
obscene or indecent material, attempts to protect children against other types of content have
faced greater scrutiny. In Brown v. Entertainment Merchants’ Ass’n, a case involving a state ban
on the sale of violent video games to minors, the Court emphasized that government “must
specifically identify an ‘actual problem’ in need of solving” to allege a compelling interest.128 The
Brown Court determined that the state’s “predictive judgments” that violent video games cause
aggression in children, without direct proof of a causal link, did not meet this threshold and could
not demonstrate a compelling interest.129 Alleging a compelling interest sufficient to support
restricting children’s access to particular online material may prove difficult: the evidentiary
value of research like that included in the Facebook Files, for example, may depend on whether
that research supports the notion that particular social media content actually causes harm in
children.130

personal information of certain people “with the intent to threaten, intimidate, or incite the commission of a crime of
violence”).
122 See Brown v. Enter. Merchants Ass’n, 564 U.S. 786, 794–99 (2011) (invalidating a state legislature’s attempt to
treat violent video games as unprotected speech); United States v. Stevens, 559 U.S. 460, 469 (2010) (refusing to
consider “depictions of animal cruelty” as unprotected speech).
123 Ashcroft I, 535 U.S. 564, 580–84 (2002).
124 Id. at 586 (O’Connor, J., concurring); id. at 589 (Breyer, J., concurring).
125 United States v. Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009).
126 United States v. Little, 365 F. App’x 159, 163 (11th Cir. 2010).
127 See Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“We have recognized that there is a
compelling interest in protecting the physical and psychological well-being of minors.”); Denver Area Ed. Telecomms.
Consortium, Inc. v. FCC, 518 U.S. 727, 743 (1996) (identifying “the need to protect children from exposure to patently
offensive sex-related material” as an interest “this Court has often found compelling”).
128 Brown, 564 U.S. at 799 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 822–23 (2000).
129 Id. at 799–800.
130 Compare Wells, supra note 2 (reporting that internal research at Instagram states that the social media platform
“make[s] body image issues worse for one in three teen girls”), with Dan Milmo and Kari Paul, Facebook Disputes Its
Own Research Showing Harmful Effects of Instagram on Teens’ Mental Health, THE GUARDIAN (Sept. 30, 2021, 8:59
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Another key question for content-based restrictions is whether a given restriction is “narrowly
tailored.” One means of assessing whether a law is narrowly tailored is whether it impacts more
speech than is necessary. The Reno court struck down the CDA in part because it failed to limit
adequately its impacts on speech unrelated to the law’s aims.131 Additionally, the availability of
other means that are equally as effective at achieving the government’s interest, without
restricting speech, may prove fatal to any direct regulation of access to particular content.132
Whether a direct regulation of access to internet content by minors survives constitutional
scrutiny may therefore depend on what exactly the law restricts, whom the law impacts, and what
technology is available that may accomplish the law’s goals.
In both Reno and Ashcroft II, the Court focused on the availability of technological tools capable
of restricting access to particular material in assessing whether the CDA and COPA were
narrowly tailored.133 In Reno, the lack of available technology to prevent only minors from
accessing material led the Court to conclude that the CDA likely would impact protected speech
between adults.134 In Ashcroft II, the Court determined that the existence of effective blocking
technology suggested that there were less restrictive means of achieving the government’s
interest.135 These cases thus provide two related considerations with respect to technology. If
technology is insufficiently advanced to address the goals of a piece of legislation, the legislation
risks being overly broad by sweeping into its restrictions more speech than is constitutionally
permissible. If technology is sufficiently advanced, the use and adoption of particular technology
may be a less restrictive alternative to a ban on certain speech.
One consideration in determining how to analyze a particular restriction is that the nature of the
internet as a medium may have changed since the Court’s decisions in Reno and Ashcroft I and II.
In several cases, the Court has opined that “each medium of expression presents special First
Amendment problems,” and certain media (such as broadcast) may be entitled to lesser
protections than others.136 In Reno, the Court distinguished its approach from Pacifica by noting
several features of broadcast that do not apply to the internet: a history of government regulation,
a scarcity of available frequencies, and an “invasive nature.”137 Though the internet still has not
been subject to a history of regulation, some legal scholars argue that the trajectory of the internet
has positioned it closer to broadcast than it may have been in the 1990s.138 The Reno court

PM), https://www.theguardian.com/technology/2021/sep/29/facebook-hearing-latest-children-impact (reporting on
Facebook’s release of annotations to this research “stress[ing] that the work is not fit to evaluate causal links between
social media and mental health”).
131 See Reno v. ACLU, 521 U.S. 844, 875 (1998) (holding that a compelling interest in children “does not justify an
unnecessarily broad suppression of speech addressed to adults”).
132 See Ashcroft II, 542 U.S. 656, 667 (2004).
133 See Reno, 521 U.S. at 876; Ashcroft II, 542 U.S. at 666–67.
134 Reno, 521 U.S. at 876.
135 Ashcroft II, 542 U.S. at 667.
136 See FCC v. Pacifica Found., 438 U.S. 726, 748 (1978); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)
(“Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for
each may present its own problems.”). The Supreme Court has also suggested that characteristics of the medium being
regulated may impact the type of First Amendment scrutiny applied to analyze a regulation. See Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 661 (1994) (declining to apply strict scrutiny to a cable television regulation that the Court
deemed “justified by special characteristics of the cable medium,” though the Court separately concluded that this
regulation was content-neutral and therefore would not be subject to strict scrutiny, id. at 652).
137 Reno, 521 U.S. at 868.
138 See Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 HARV. L.
REV. 1598, 1660–61 (2018); Angela J. Campbell, The Legacy of Red Lion, 60 ADMIN. L. REV. 783, 788 (2008) (noting
that “[w]hether a medium is analogous to broadcasting is subjective and may change over time” and describing in
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observed that “[c]ommunications over the internet do not ‘invade’ an individual’s home or appear
on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’”139 For
modern internet services that can deliver a wide range of content, some commentators have
observed that users may not always have control over the content they receive.140 That the internet
may be more analogous to broadcast today than it was 30 years ago may not mean that the
internet enjoys lesser First Amendment protections. Supreme Court Justices, appeals court judges,
and legal commentators have suggested that, rather, the changing media landscape may suggest
that Pacifica should be reconsidered and courts should apply the same standards to broadcast that
they currently apply to other media.141
Another legislative approach to issues relating to the use of the internet by children may be
legislation that affects how children may access the internet without prohibiting a particular type
of content. Some bills introduced in the 117th Congress may have attempted to take this approach:
for example, the Kids Internet Design and Safety (KIDS) Act would prohibit the use of certain
“interface elements” on commercial websites targeted to children under 16 years of age.142
Another bill, the Kids PRIVCY Act, would prohibit the use of children’s personal information to
target advertisements to children.143 If a court were to determine that these bills would not target
particular speech based on its message or viewpoint, courts could analyze them under the more
permissive intermediate scrutiny standard.144 Content-neutral laws may be more likely to
withstand judicial challenges, but even content-neutral laws cannot be unduly broad lest they
interfere with the First Amendment rights of children and adults.145 In short, any attempt to
regulate online material accessed by children would likely face consideration of how to take
account of a range of potential First Amendment impacts.

particular changes to the internet since Reno was decided).
139 Reno, 521 U.S. at 869 (quoting ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996)).
140 See, e.g., Rob Barry et al., How TikTok Serves Up Sex and Drug Videos to Minors, WALL STREET JOURNAL (Sept. 8,
2021), https://www.wsj.com/articles/tiktok-algorithm-sex-drugs-minors-11631052944?mod=article_inline (describing
how videos automatically displayed on TikTok’s “For You” feed change based on user activity); see also Roberto A.
Cámara Fuertes, Letting the Monster out of the Closet: An Analysis of Internet Indecency Regulation, 70 REV. JUR.
U.P.R. 129, 136–37 (2001) (describing instances in which minors may unintentionally access particular content,
echoing concerns raised in Pacifica).
141 See, e.g., FCC v. Fox Television Stations, Inc., 567 U.S. 239, 259 (2012) (Ginsburg, J., concurring) (“Time,
technological advances, and the [FCC’s] untenable rulings . . . show why Pacifica bears reconsideration.”); FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 534 (2009) (Thomas, J., concurring) (averring that “dramatic changes in factual
circumstances might well support a departure” from Pacifica); Action for Children’s Television v. FCC, 58 F.3d 654,
673 (D.C. Cir. 1995) (Edwards, C.J., dissenting) (“Whatever the merits of Pacifica when it was issued almost 20 years
ago, it makes no sense now”); Randolph J. May, Charting a New Constitutional Jurisprudence for the Digital Age, 3
CHARLESTON L. REV. 373, 376 (2009) (encouraging the Supreme Court to apply strict scrutiny to broadcast regulation).
But see William E. Lee, Books, Video Games, and Foul-Mouthed Hollywood Glitteratae: The Supreme Court and the
Technology-Neutral Interpretation of the First Amendment, 14 COLUM. SCI & TECH. L. REV. 295, 374–79 (2012)
(observing discomfort among the Supreme Court with overturning Pacifica and speculating that Pacifica’s narrowness
has helped discourage the Supreme Court from revisiting it).
142 H.R. 5439, S. 2918, 117th Cong. (2021).
143 H.R. 4801, § 3, 117th Cong. (2021).
144 See “Legal Concepts: Obscenity and Laws Restricting Speech to Minors” supra for more information. For a
detailed discussion of levels of scrutiny applied to internet-related regulations, see CRS Report R45650, Free Speech
and the Regulation of Social Media Content, by Valerie C. Brannon.
145 See Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–13 (1975) (discussing the “significant” First Amendment
rights of minors).
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Eric N. Holmes

Legislative Attorney

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