During the October 1996 term, Justice O’Connor, joined by Chief Justice Rehnquist, concurred in part and dissented in part in Reno v. ACLU.
I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster.
In his new book, Sen. Ted Cruz, who clerked for the Chief, that the two Justices apparently asked a librarian to show them how easy it was to find hardcore porn on the internet. The Washington Post has the report:
Cruz served as a law clerk to then Supreme Court Chief Justice William Rehnquist. One day, he was standing behind Rehnquist and Justice Sandra Day O’Connor.
“We were in front of a large computer screen gazing at explicit, hard-core pornography,” Cruz wrote.
The reason? The court was considering a case challenging a law that regulated online porn. The clerks were older and not well-versed in the Internet, so court librarians set up a tutorial for the justices and their clerks on how easy it was to find porn online. Cruz watched as the librarian typed in the word “cantaloupe,” though it was misspelled.
“A slew of hard-core, explicit images showed up onscreen,” he wrote. “As we watched these graphic pictures fill our screens, wide-eyed, no one said a word. Except for Justice O’Connor, who lowered her head, squinted slightly, and muttered, ‘Oh, my.'”
Sandra Day Oh My.