"As Good A Bench As We Can Hope For"

by Craig A. Johnson
American Reporter Correspondent

PHILADELPHIA -- The buzz was loud and the message clear as a panel of judges in the ACLU v. Reno case heard closing arguments in Philadelphia and then adjourned to consider the first of two major constitutional challenges to the Communications Decency Act (CDA) that critics say threatens free speech on the world-wide Internet.
The second case, Shea v. Reno, is set for final arguments on June 3 in Federal court in Manhattan. Both cases are being heard by three- judge panels and are likely to be consolidated if they reach the Supreme Court under an expedited review process outlined in the law. Both cases were filed immediately after President Clinton signed the huge telecom- munications reform act, which contains the CDA, on February 8. The ACLU case was the first to end.
As government lawyers headed off into the foggy Philadelphia afternoon, the words of Judge Stewart Dalzell in Federal court here Friday still rang in the minds of courtroom observers: In order to preserve the Internet "as the most democratic medium that the human mind has come up with yet, a chilling effect is something we have to consider" as the panel rules on the CDA.
"How can we, as a matter of judicial responsibility, sustain against a chill," Judge Dolores K. Sloviter, chief judge of the Fourth Circuit Court of Appeals asked government counsel, in the absence of technology which "would not block appropriate [First Amendment protected] material for adults?
"Why doesn't the government concede that a preliminary injunction would be appropriate," she queried, her exasperation evident.
The central question of how to "find out whether one is an adult" was left unanswered throughout the whole case, Sloviter asserted. She charged that the government was asking the panel "to sustain the statute based on the defenses," which are not validated by current technical realities.
"Until it exists," Judge Sloviter exclaimed, "it isn't working. Until it works, we don't know how it will work." Judge Dalzell agreed, stating, "The evidence is quite clear that . . . that there is no technical way to screen for age based on available technology" which non-commercial providers can avail themselves of.
These were the most compelling signs yet that the panel may be leaning favorably toward the plaintiffs' request for an injunction. "This is as good a bench as we can hope for in this situation," ACLU lead attorney Christopher Hansen told reporters after adjournment.
The day's arguments covered the entire waterfront of issues from the facial challenges to the constitutionality of the Communications Decency Act (CDA) to an animated debate on "defenses" and "safe harbors" to the disclosure of the recent FBI's "review" of Compuserve at the behest of the right-wing American Family Association (AFA).
Hansen and American Library Association/Citizens' Internet Empowerment Coalition (ALA/CIEC) counsel Bruce J. Ennis hammered home point after point until finally, it seemed, the government's entire house of cards had collapsed onto its lap. The plaintiffs' attorneys effectively eradicated whatever defenses existed with respect to both the "indecency" standard's ability to pass Constitutional muster on its face, as well as the Act's attempt to tack a broadcast standard originally mandated by the Federal Communications Commission (FCC) onto the Internet.
Hansen forcefully got across the facial argument that the statute is an "attempt to prevent adults from having information that they are constitutionally entitled to." "All speech," he declared, "would be brought down to a level acceptable to minors." Hansen stressed again and again that the act would "prohibit speech that has serious value," notwithstanding the government's contentions to the contrary.
In his closing remarks, Hansen inveighed further against the criminalization of speech that would result from the law. "Libraries and institutions of higher learning" would be thrown into a witch-hunt atmosphere, he charged.
Speaking to reporters after adjournment, Hansen amplified on this, saying that the CDA was being used by right-wing groups such as Enough is Enough to "go after libraries and colleges, which are not what we normally think of as great smut-peddlers." Religious Right activists recently tried to ban books online at the University of California - Riverside, a campus located in one of the most conservative regions of the state.
Hansen also decried the government's argument that, with technological development, "it is possible to label speech as decent or indecent."
The "notion that Government would impose on all of us, before we speak" a criteria as to whether our speech was decent or indecent, he declared, raises a "serious Constitutional problem," he said.
ALA/CIEC counsel Ennis argued in closing that "there is nothing in the pipeline" that will technically work to identify adults in online newsgroups, chat rooms, and listservs or mail exploders. Second, he said, the government admitted that tagging is not effective, and even if it were, it still would not constitute a "safe harbor."
Furthermore, "it would violate the doctrine against compelled speech," which states that "attaching a pejorative label to one's own speech" is something that someone "should never be required to do." There is no reason to assume, that Congress had any intent to require self-labelling, he maintained. In fact, Congress specifically rejected self-labelling with respect to broadcast speakers.
The Internet, Hansen urged throughout yesterday's argument, was a specific medium, which could not tolerate having rules applied to it which were crafted in the past for other media. Rather, it is a "democratizing, many-to-many" medium. One of its real effects, he said is that it "is making us all speakers and listeners."
The panel of judges seemed to concur that the CDA was based on broadcast laws. Judge Dalzell stated that Congress had "reached into" past judicial decisions applying to broadcast media and "begat the Communications Decency Act." But, if access to "indecent" content is found not to be "pervasive," which is the primary characteristic of broadcast media, then how could they sustain this statute in light of the unique characteristics of the Internet, Judge Dalzell queried?
This is particularly relevant for chat rooms, news groups, and list servers or mail exploders. Plaintiffs' council Ennis argued that "tagging and registering cannot possibly protect minors" in these fora unless there is ample parental supervision and control. If that is present, Ennis said, then we "don't need the law."
Judge Sloviter took the questioning one step further, declaring that to require governmental actions which may militate against the wishes of parents was "a serious Constitutional question." She asked: "What is the Government's interest in shielding 15-year olds from material that they want to see and the parents don't care" whether they see?
Sloviter went on to grill Government counsel on the intent of Congress to "help the parents." How, she asked, could this be done if the Court "found that the evidence does not support the proposition that there is a significant probability of inadvertently chancing . . ." upon the material without "a lot of clicks or a warning?" "What would remain of the government's compelling interest," she asked.
The questions largely went unanswered by government lawyers, though US Atty. Jason R. Baron said that "Congress could draw a bright line" which would would in fact criminalize some speech with redeeming value. The Government, he said, may prevent a 14-year old's right to read Henry Miller's Tropic of Cancer online. Similarly, excerpts from a Broadway play on AIDS may fall within the statute's boundaries.
This did not sit well with the judges as they repeatedly emphasized that the Congressional Conference Committee statement that material "with no intent to offend" should not be swept under the law.
At one point, in a direct parallel with the questions at issue in Shea v. Reno, Judge Dalzell, observing that recent issues of the Philadelphia Inquirer and the New York Times had pictures and articles that many people would find "patently offensive," asked government counsel if he would advocate a "newspaper decency act."
Dalzell explained to a befuddled counsel that Congress clearly did not have the power to write a "newspaper decency act." "What is it about the Internet media that makes it a completely different ball game," he asked. No persuasive answer was uttered by government counsel.
The judges returned several times to the government's contention that effective technology for screening, tagging, and blocking would soon be available. Sloviter was unconvinced. "After five days of testimony," she said, "all we got was hypotheticals." The tagging scheme introduced by one of the government's witnesses, Sloviter suggested, "was the product of [his] creative imagination," and "thought up . . . after the government hired him as a witness."
In the end the decisive issues were raised in sharp relief by all three judges. If the intent of Congress was to help parents prevent their children from viewing objectionable content, and the technology that is available cannot do that, what good is a CDA? If available technology cannot find a solution for authenticating adults and children, then doesn't the rationale for the CDA collapse? And, if the CDA, with its labelling scheme of "indecency" is overbroad and covers speech which has value, then isn't it unconstitutional on its face?
Despite all the roundabout arguments and twists and turns, the government never effectively answered any of these threshold questions.

Copyright 1996 Craig A. Johnson * All Rights Reserved

This page last updated on May 15, 1996 by Matt Ball.

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