The Netly News Network
March 19, 1997

@ The Supreme Court

by Declan McCullagh,
and Noah Robischon,

U.S. Supreme Court justices pummeled government proponents of the Communications Decency Act this morning during a review of the law that will set new standards for free speech in the 21st century.

The notorious CDA, reviled throughout cyberspace since the day it was signed by President Clinton in February 1996, would criminalize the ill-defined category of "indecent" communications on the Net. A Philadelphia federal court struck down the law a year ago.

Justice Antonin Scalia called the lawsuit, brought by the American Civil Liberties Union against Attorney General Janet Reno, "a distinctive form of First Amendment argument unlike others" because it covers an uncharted and rapidly developing communications medium. "That's a new case for us," he said.

Deputy Solicitor General Seth Waxman argued that the CDA merely established boundaries on the Net and made it harder for pornographic material to fall into the hands of minors. He likened the law to a cyber-zoning ordinance; without it, he said, the Internet "threatens to give every child a free pass to get into every adult movie theater or bookstore in the country."

But less than a minute after Waxman started, the justices impatiently plowed into his presentation. Justice Stephen Breyer demanded: "Suppose a group of high school students decides to talk over the Internet and they want to talk about their sexual experiences. I mean, that's been known to happen in high school." Would they "be guilty of a federal crime?"

Justice Antonin Scalia cut in, joking: "There's no high school student exemption?"

"You might find it in the legislative history, but I do not," Waxman replied.

For much of the 70-minute hearing, the discussion swirled around the question of how netizens could comply with the CDA. Waxman claimed that the act includes a battery of ways to protect a person from prosecution -- visitors to "indecent" web sites would be required to provide credit-card numbers, for instance. But Justice Sandra Day O'Connor was unmoved. "How does that fit in with the use of web sites by noncommercial users, libraries?" she asked.

Justice David Souter wondered if the portions of the act banning the "display" of indecent materials would imprison parents. "I take it a parent who allows his computer to be used by a child viewing indecent material, that parent would go to prison," he said. When Waxman demurred, Scalia took up the chase. "No... One of those offenses is a display offense," he pointed out. Chastened, Waxman replied, "I see your point."

Bruce Ennis, arguing on behalf of the ACLU and American Library Association coalitions, contended that the CDA bans speech, even for adults; is not as effective as blocking software; and is unconstitutionally vague.

Justice Scalia, who noted that he uses a computer, pointed out that technology is rapidly changing. "So much of your argument is based on what's currently available," he said to Ennis. "This technology is changing so quickly. Is it possible that this statute is unconstitutional now but could be [constitutional] in four or five years?" Ennis replied: "Not as it's written."

During a subsequent press conference, Ennis added that indeed, the technology is changing, and is giving parents more control over what their children do and see online. "Precisely because the technology is changing, the government should not be trying to enforce this law," he said. The ACLU attorneys who joined Ennis were grinning: the justices appeared to understand the nature of communications online, noted that teens have rights, and focused on free speech, not porn.

After the hearing, the anti-CDA protestors who had braved a chill rain to chant "Hey-ho, the CDA has got to go!" were displaced by a larger, bullhorn-wielding group of anti-porn advocates. One sign demanded, "Don't sacrifice my child on the altar of the First Amendment."

One of the most vocal protestors was 19-year-old Berkeley student Kenritsu Yamamoto, who happened to be dressed as a Net cupid, complete with angel wings and a circuit board breastplate. He was acting in the Pure Love Alliance's skit illustrating how pornography and "Net abduction" harms children. In the skit, Yamamoto accidentally kills a small child to demonstrate the dangers of a world without the CDA. "If a small child buys porn at a 7-11, then the store can be held accountable," said Yamamoto. "But on the Net, there is no accountability."

A few steps away, Donna Rice Hughes, Enough Is Enough's communications director, was explaining why she thought the CDA should be upheld. "Without the CDA, Larry Flynt can make his teasers and centerfolds available to kids on the Internet," she said. Across from Hughes stood Bruce Taylor, the lawyer who argued against Flynt in the Supreme Court more than a decade ago. "The technology is advancing so well that the court is going to see that people can use this stuff without violating the law," he said.

If the Supreme Court disagrees and strikes down the CDA, some members of Congress have pledged to try again. Netly cornered Sen. Charles Grassley (R-Iowa), a stauch supporter of the CDA, in the basement of the Capitol after the argument. What would he do? "How to do this I don't know, but our objective hasn't changed," he replied. "Some way, somehow, we will have to find a constitutional way of doing this for kids, protecting them from porn the way we did for printed material." Rep. Bob Goodlatte (R-Virginia) says he hopes the high court "will give the Congress some very clear guidance."

But any Congressional tinkering will come after the Supreme Court decides. A ruling is expected in early July.

[McCullagh is one of the plaintiffs in the lawsuit challenging the CDA.]

Copyright © 1997 by Time Inc. All Rights Reserved. Reprinted with permission.