Declan McCullagh on Thu, 20 Mar 1997 01:05:35 +0100 (MET)

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nettime: Report from Supreme Court arguments in CDA lawsuit


The Netly News Network
@The Supreme Court
March 19, 1997

By Declan McCullagh (
   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

     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

     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.]

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