“Tool Without a Handle: Reflections on 20 years from Reno v. ACLU”

On 26 June 1997, in Reno v ACLU, the US Supreme Court decided the fate of the Communications Decency Act (“CDA”), insofar as it criminalized the intentional transmission of "obscene or indecent" messages or information.  In doing so, the Court made not only a finding that this provision of the CDA violated the 1^st Amendment, but applied an approach to Internet cases with clear implications for cases the Court faces today.

Reno established that it is essential the Court recognize differences between the measured pace of judge-made law and the blistering pace of technology’s evolution, a point that is still cited by the Court today. And, it identified that the capabilities and availability of the tools at issue have an important role to play in the constitutional analysis. As the Court continues to address Internet and technology-related constitutional cases, the importance of considering the capabilities of Internet tools may well be the most impactful legacy of Reno.