CDA opponents file their side

The Communications Decency Act is headed full speed toward the Supreme Court as the two main groups opposing the landmark law file their briefs tomorrow.

Briefs from the American Civil Liberties Union and the Citizens Internet Empowerment Coalition will outline their legal strategy against the Justice Department's appeal to a federal court decision last June that blocked the CDA on grounds that it is unconstitutional.

Although the two cases are consolidated, each legal team will file separate briefs, as they did in the original case. The ACLU represents an alliance of nonprofit public-interest groups, while the citizens coalition includes the American Library Association, publishers, and Internet companies, as well as civil liberties organizations.

The Supreme Court will test the CDA in the historic case, Reno vs. ACLU, on March 19. At the same time, two bills are moving through Congress to throw out parts of the communications law.

While the CDA has often been called the ultimate test case for the future of free speech on the Internet, it represents only one step in the governance of cyberspace. The Net continues to face regulatory efforts on multiple fronts, including the copyrights, taxes, and trademarks.

The ACLU filed its intial legal challenge to the CDA on February 8, 1996--the day it was signed into law by President Clinton.

The civil rights group argued in that the CDA violated First Amendment rights in a provision that made it illegal to knowingly transmit indecent material to minors over the Net. Two terms used in the law--"indecency" and "patently offensive"--were unconstitutionally overbroad and vague, the ACLU said.

The Citizens Internet Empowerment Coalition filed its lawsuit against the CDA on February 26, 1996, stating that the CDA "threatens the very existence of the Internet as a viable medium for free expression, education, and commerce" and needed "protections at least as broad as those afforded to print media." The coalition's lawyers, led by the ALA, also addressed the idea of parents protecting their children from indecency with technology, not government regulation.

The briefs submitted tomorrow to the Supreme Court will likely repeat most of those arguments, made before a three-judge federal panel in Philadelphia, in addition to rebuttals to a 60-page brief filed by the government January 21.

The government's case has shifted from its argument in the first hearing, when it said people wouldn't be prosecuted if they used age-verification systems--and, therefore, the CDA didn't infringe on adults' rights to download and distribute pornography among themselves. The brief to the Supreme Court, however, focuses more on the underlying constitutionality of the statute.

Delivered by Acting Solicitor General Walter Dellinger, the government's new brief established the government's basic argument: that the CDA is constitutional because the First Amendment does not protect a right to distribute pornography to minors.

"Much of the Internet's potential as an educational and informational resource will be wasted, however, if people are unwilling to avail themselves of its benefits because they do not want their children to be harmed by exposure to patently offensive sexually explicit material," the brief stated.

In addition, Justice Department attorneys are expected to argue that children generally can't make informed choices about whether to view indecent material, so the government has the right to censor certain material to protect them.

Violators of the law faced up to two years in jail and a $250,000 fine.