March 19, 1997 12:30 PM PST

CDA argued in high court

WASHINGTON--The Supreme Court heard arguments today in a historic case that could decide the fate of free speech on the Internet.

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In the first test of the new electronic medium before the high court, the nine justices heard oral arguments from both sides in the Communications Decency Act case in a 70-minute session, slightly longer than the usual time reserved for such proceedings.

The debate over the online indecency law is passionately charged by the two poles: the government, which swears to protect children from smut on the Internet, and free speech watchdogs, who want to safeguard First Amendment rights. The court's line of questioning indicated that the decision may rest more on the enforcement question rather than the root debate over First Amendment rights.

"The Internet threatens to render irrelevant all prior efforts to protect children from indecent material," said Seth Waxman, deputy solicitor general for the Justice Department.

"All of the laws regulating the display of indecent materials in theaters and book stores, on radio, TV, cable, and telephone, all of these approach insignificance when the Internet threatens to give every child with access to a connected computer a free pass into the equivalent of every adult bookstore and video store in the country," he said.

The opposition argues, however, that in an effort to protect children, the CDA undermines constitutionally protected rights of free speech for adults.

"This law will have the unconstitutional effect of banning indecent speech for all adults in cyberspace," said Bruce Ennis, lead lawyer for the camp opposing the CDA. The American Civil Liberties Union and a coalition led by the American Library Association known as the Citizens Internet Empowerment Coalition are challenging the Justice Department's appeal to preserve the law.

The Supreme Court is not expected to make its decision until summer.

The CDA, which was signed into law last February, makes it a felony to knowingly send or show "indecent" material to a minor over the Net. If a three-judge federal panel in Philadelphia hadn't temporarily blocked the law last summer on the grounds that it was unconstitutional, violators could have gotten up to two years in prison and a $250,000 fine.

Many close to the case say the court will rely on the ruling of the lower court, but observers on all sides say the stakes in today's hearing are still extremely high. A ruling upholding even part of the statute would limit adult communications online.

Opponents also assert that if the court says the use of "indecent" in the CDA is constitutional, then the Net will be less protected than broadcast or print media.

The CDA case has generated enormous interest. The courtroom today was jammed and there were long lines as security guards stopped to make sure nobody took in pagers, cellular phones, or tape recorders. Ironically, no electronic equipment is allowed inside the Supreme Court.

More than 100 people waited in line outside, hoping to get an empty seat. And protesters for both sides gathered in the freezing rain to express their views, although pro-CDA forces showed up in larger numbers.

"Enough is enough, kids don't need this stuff," said one group of pro-CDA protesters. Children held up signs with the word "porn" written on arms coming out from a computer screen.

Inside the court, the justices grilled both sides for 35 minutes each. The arguments normally are limited to a half hour each.

Waxman at times seemed flustered during the session, especially when confronted with questions about protecting parents from prosecution under the CDA. Observers were impressed by Ennis's performance, particularly his ability to redirect the justices back to the strongest points of his argument, such as the widespread availability of blocking software that can perform the function of restricting Net content for about $30. Observers attribute this line of argument to the clout of the ALA coalition, which represents some of the companies who provide the blocking software.

Some of the questions indicated that the justices are swayed by the argument that the CDA is overly broad, the same argument that won over a federal court in Philadelphia last summer.

"Suppose high school students want to tell each other about their sexual experiences over the phone," Justice Stephen Breyer said. "They would be guilty of a felony under the CDA."

Breyer's remarks drew some laughter after he suggested that those experiences might be exaggerated, however.

The justices also wondered whether parents would be prosecuted under the CDA if they did not take enough precautions to keep their children from accessing the material. Waxman said the court could narrow the law to prohibit parents from being prosecuted. But the justices didn't seem to buy that argument.

"The district court was concerned about legislating in that way," Justice Ruth Bader Ginsburg said. "That kind of tinkering the courts don't do."

But several of the justices, including Sandra Day O'Connor and John Paul Stevens, also demonstrated a lack of familiarity with how the basic technologies, such as Net blocking software, work. Justice Antonin Scalia made it known that he owns a computer, however.

Scalia saved most of his questions for the ACLU side. He noted that the Supreme Court had upheld a law that blocks pornographic newspapers in street vending machines, a provision that was also upheld by a California court this week.

Many of the justices' questions tried to draw comparisons between the Net and more established communications media. O'Connor suggested the Internet could be viewed as a public place, "much like a street corner or a park."

After the hearing, Ennis held a press conference on the steps of the Supreme Court. "I thought that the justices clearly had read the briefs and they knew the statute," said Ann Kappler, cocounsel for the ALA coalition. "We were pleasantly surprised by their overall understanding of the technology."

The Justice Department typically doesn't comment on cases until judgment has been passed.

Kappler is concerned that the justices might try to preserve part of the statute. "There is a real concern that there will be a feeling among the court, as there often is, that it should try to salvage something or split the baby somehow," she said in an interview last week.

The initial challenge to the CDA was filed the day President Clinton signed it into law. The ACLU, representing nonprofit advocates for civil, human, gay and lesbian, and free speech rights, filed the first lawsuit. The ALA filed another case on February 26, naming Internet companies, libraries, publishers, and users. The cases were consolidated by the Philadelphia court soon after.

The Justice Department lost in Philadelphia on July 12.

The court's ruling should mark the end of the fight over the CDA--at least this version of the law. The CDA will no doubt return to Congress, maybe even with a new name, different sponsors, and more narrowly tailored provisions. The law's proponents promise that as long as kids surf the Net they will seek regulation to control minors' access to online smut.

However, the political climate in the federal government has changed since the first passage of the law. For example, the Internet Caucus--members of Congress savvy about the Net--has grown to more than 85 members since it was founded last March. Also Ira Magaziner, senior adviser to the Clinton administration on electronic commerce issues, has publicly stated that he will advise the president to veto any new CDA-like legislation.

The CDA's tortured history
June 1996 CDA supporters vow to fight on

CDA rejected in landmark ruling

July 1996 Government files CDA appeal

CDA loses again in New York

Aug 1996 Second CDA appeal filed
Sept 1996 N.Y. passes Internet decency act
Nov 1996 Court plans CDA session
Dec 1996 Supreme Court to decide CDA
Jan 1997 Government fires shot on CDA
Feb 1997 Leahy fires new shot at CDA

Bill to nail CDA's coffin

CDA opponents fire back

March
1997
It's Bruce Ennis vs. the CDA

DOJ files brief to defend CDA

 

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