May 10th was a good day for free speech supporters. The final arguments before the panel of three federal judges in Philadelphia demonstrated that the ACLU had mounted a truly impressive case against the CDA. After several long days of testimony spanning almost 4 weeks and 15 witnesses, the judges proved themselves to be well versed in the nature of Internet technology, the culture of this quickly evolving medium, and the constitutional implications of burdening it with a vague, poorly constructed ban on "indecency." They asked tough questions of both sides and, in the end, had the DoJ lawyers scrambling, squirming, and dancing around the core issues.

The day began with Christopher Hansen, attorney for the ACLU, who pointed out that the CDA was a particularly onerus criminal statute, directed at each and every one of the millions of users of a pluralistic medium. He stressed the idea that regulating the Internet was not like imposing regulations on a corporation like CBS. "Here," he said, "we have the most democratic medium yet devised. Entrance into the marketplace of ideas is easy." And though with limited resources and the approval of no one, "anyone can reach an audience as large as CBS," not just anyone can hire a team of lawyers to figure out what "patently offensive" means.

Hansen then talked about how the CDA is a vague statute, not allowing for serious scientific, literary, artistic, or political value in its judgment of "patently offensive" material. This has been upheld by the Supreme Court in regards to the FCC regulation of broadcast media, but never in the context of a criminal statute that affects individual speakers. Hansen continued to hammer on the the vagueness issue, pointing out that the law specifically sets the indecency standard to be applied on the local level--while the Internet is a global phenomenon.

Hansen then moved to the issue of overbreadth, arguing that CDA reaches speech that is constitutionally protected for adults, citing Butler v. Michigan. (This 1957 Supreme Court case struck down a Michigan law which prohibited the sale of all books which were harmful to children. Justice Frankfurter said it was unconstitutional to reduce the level of reading to only that which is fit for children, adding that it was like "burning down a house to roast a pig.") Hansen said that even minors have a right to certain kinds of speech targeted in this law, such as safe sex material.

In the previous day of the hearing the government lawyers argued that the ACLU was overreacting to the CDA and none of the plantiffs would be prosecuted under the law. Alluding to this, Sloviter then asked, "How do you answer the argument that the act can possibly be read not to affect such speech?"

He responded that the government misleadingly suggests that this is all about pornography, when, in fact, it is a ban on "indecency" and conspicuously missing any language which exempts works of serious value. "Even if it has value, you can go to jail."

At this moment Judge Dalzell stopped Hansen's argument and hypothetically threw him in Coats' and Exon's shoes. He asked him to suppose it was his job to formulate the language of the CDA: "Here's the pen, you write it."

Hansen buckled for a moment, playing with a few possible scenarios; he then argued that the issue is medium specific and the law should not be written with the words used to regulate broadcasting. Dalzell asked if he would give the pen back. Hansen replied, "Yes, I have a better solution--PICS and Surfwatch."

"Great, how are we sure that this happens?" Dalzell asked.

"Relax," Hansen said. "It's happening already."

Hansen finished his argument by reminding the court that the Internet is "a new medium, an exciting medium, a democratizing medium, and an evolving medium" which the CDA has the potential to stifle, as it infringes constitutional rights.

Next up was Bruce Ennis for the ALA, who argued that the governments "safe harbor" defenses are a ruse: there are, in fact, no safe harbors from the CDA. Ennis presented these defenses as so poorly drawn or nonexistent, that the law effectively "constitutes a flat ban" on certain kinds of constitutionally protected speech.

Ennis pointed out that in every other medium all speakers have a sure and safe way to comply with the law. He alluded to a letter issued by the government in the American Reporter v. Reno case (a parallel case in the 2nd circuit also contesting the constitutionality of the CDA), which, he said, provides a defense only to commercial providers, who generally use credit cards and passwords--and could adapt these procedures to create adult verification systems.

Dalzell remarked that if upheld, "the people who could comply the easiest are the pornographers."

"Exactly," Ennis agreed, "this law does nothing to protect minors against commercial porn."

Ennis stressed that safe harbor steps spelled out for noncommercial speakers offer no clear defense. Registering a site would weigh in your favor, he argued, but ultimately only serve as some evidence on your side in arguing your case before a jury. "This is a criminal statute and one is always at risk of losing the battle before a jury." The few available and effective solutions, such as credit card verification, are prohibitively expensive and anything but reasonable or appropriate solutions for the noncommercial speaker.

Although the letter endorses rating systems, such as Olsen's -L18 scheme, such systems simply do not exist. Tagging your page with -L18 today would do nothing. If the law goes into effect today there is essentially no recourse for posting indecent material, other than expunging it from the server. "Tagging and registering will not work unless parents get software to understand it. But if they do that, there is no need for the law." Judge Sloviter picked up on a larger issue, raising the interesting point that she knew of no other criminal statutes which are on the face, constitutional, but for the defenses. A bit later Judge Dazell referred to the seminal cases which allow for the regulation of broadcasting and provide the core language for the CDA, saying, "Congress thought they reached into Sable and Pacifica, threw it in, and said, 'its constitutional.'"

In the course of his argument, Ennis referred to Butler v. Michigan, making the point that there is no way for a someone who wants to speak to the world to insure that it will not reach minors. He also reminded the court that the proceedings have centered almost entirely on the Web, while much of the Net is made up of newsgroups, IRC, email, etc--areas which are impossible to regulate or apply any reasonable safe harbor defenses.

Dalzell interjected: "the government says your worries are so far fetched, so hyperbolic..."

"The government is wrong--as CompuServe demonstrates. All speakers that have serious speech are at serious risk." (The CompuServe case which he referred to involved a relatively tame adult section of the online service. It was recently brought to the attention of the FBI who came storming in, citing the CDA. Dalzell alluded to this earlier, questioned the government's intentions of going after adult material offered only to adults, and would seize upon this case as the day grew on.) Ennis contrasted this to the irony that the stated objective of the law is "to empower parents"--not restrict them.

Dalzell then hit Ennis with the same hypothetical reverse he posed to Hansen: "Senators Exon and Coats give you the pen. Do you give it back to them or write it?"

Recalling Hansen's response, Ennis said, "Wait. Let the market forces work for a while. See if we need government intervention."

to be continued...

Mark Mangan
markm@bway.net
co-author, Sex, Laws, and Cyberspace (Holt, 1996)
https://www.spectacle.org/sexlaws