Two authoritative reports on the ACLU v Reno SC hearing
Ari Herzog
ari at ici.net
Thu Mar 20 04:44:56 EST 1997
THE CDA DISASTER NETWORK
March 19, 1997
Two final -- and authoritative -- reports from today's Supreme Court hearing:
In the first, John Heilemann of The Netizen argues that "although there are
few more treacherous occupations than reading the court's tea leaves, the
behavior of the justices hinted strongly that the CDA is dead meat."
Next, Declan McCullagh and Noah Robischon from the Netly News describe how
"U.S. Supreme Court justices pummeled government proponents of the
Communications Decency Act" and give some hint as to how the CDA's
supporters in Congress plan to respond after the Court issues its ruling
during the summer.
Read on for all the details...
- --Todd Lappin-->
Section Editor
WIRED Magazine
- ------------------------------------
The Netizen: http://www.netizen.com
Net Decency Law Looks Like Dead Meat
by John Heilemann
2:13pm 19.Mar.97.PST In a lively, fractious, sometimes-funny
70-minute session, the US Supreme Court on Wednesday
heard arguments in the case of the Communications
Decency Act, aka Reno v. ACLU. The case, which will decide
the constitutionality of the year-old (but never enforced)
federal ban on online indecency, marks the first time the
court has been asked to rule on the question of free speech
in cyberspace. And although there are few more
treacherous occupations than reading the court's tea leaves,
the behavior of the justices hinted strongly that the CDA is
dead meat.
Arguing the case for the government, Deputy Solicitor
General Seth Waxman had his hands full. Waxman spoke
first, and was subjected to a steady barrage of plainly
skeptical questions from Justices Sandra Day O'Connor,
Steven Breyer, Ruth Bader Ginsburg, David Souter,
Anthony Kennedy, and John Paul Stevens.
In a sharp tone of voice, O'Connor suggested that,
considering the nature of the Net, the CDA's use of the
adverb "knowingly" - as in, to "knowingly" transmit indecent
material to minors - was "virtually worthless."
Breyer expressed, again and again, his concerns that the
CDA would turn teenagers who use the Net to talk about
their sexual experiences into federal felons. ("You mean
there's not a high school student exception?" cracked
Justice Antonin Scalia.)
Kennedy asked Waxman whether he thought it would be
permissible to ban adults from smutty talk in public parks
just because kids might overhear them - a question that led
to a colloquy in which Waxman claimed, incredibly, that the
Net was not a "public forum."
And when Souter's probing about whether parents could be
imprisoned for letting their kids look at racy stuff online led
Waxman to claim that parents weren't the CDA's real
targets, Souter accused the government's lawyer of
"grabbing exceptions out of thin air."
Bruce Ennis, the lawyer for the anti-CDA forces, had his
share of tough questions, too - only almost all of them came
from Chief Justice William Rehnquist and Scalia. As ever,
the latter was particularly nettlesome: sharp, acerbic, and
terribly clever.
When Ennis noted that screening by age was only
technologically possible in one corner of cyberspace - the
Web - Scalia asked what was wrong with asking speakers
who want to be naughty to do it there. When Ennis said that
even on the Web the cost of such screening was
"prohibitively expensive," Scalia pointed out that the
definition of "prohibitive" depends on the goal you're trying
to achieve. And, as if he were laying the groundwork for
future battles, Scalia repeatedly argued that with the rapid
pace of change - "I throw away my computer every five
years," he said - whatever is technologically impossible or
prohibitively expensive today might not be that way for long.
"Isn't it possible that this statute is unconstitutional today
...
but won't be unconstitutional two weeks from now?" Scalia
asked.
But while Scalia and Rehnquist tag-teamed Ennis, the rest
of the justices asked him few questions, and the questions
they did ask were of a much friendlier tenor than had been
the case with Waxman.
The court will decide the case and announce its decision - it
can throw out the entire CDA or tailor a narrower ruling that
will leave pieces intact - by the end of its term early this
summer.
Before Wednesday's arguments, the question of just how
Net-savvy the justices were had been the subject of much
speculation, little of it kind.
Chris Hansen of the ACLU, who was Ennis's co-counsel,
made only one prediction going into the arguments: that
there would be no questions about what he called "cgi
script," a reference to the ubiquitous technology on the
Web that can be used to screen users by age. But,
amazingly, cgi scripting was the subject of the first question
of the day, from O'Connor, who wanted to know the precise
percentage of Web sites actually are equipped to use it.
Indeed, though there was the occasional moment of
technological confusion, most of the justices seemed fairly
switched on - if not regarding the details, then at least
regarding the big picture of what the Net is all about.
Breyer, in particular, drew an analogy between the Net and
the telephone system; even Scalia went on at length about
how the court was in uncharted territory. And the very fact
that so many of the justices took active part in the
discussion - all of them, actually, except for Justice Clarence
Thomas, who sat through much of the proceeding with his
head resting on his hand, stifling yawns - was a sign that the
court recognized the stakes of the case before it.
In the closing minutes of his argument, Ennis was cruising.
Compared with Waxman, he had been fairly successful at
getting all his arguments on the table; even after dodging
the ink pellets flicked by the Frankenstein and Don
Corleone of archconservative jurisprudence, Ennis found
time to pick up on Breyer's telephone analogy, and to
expand on the parents-in-the-slammer hypothetical that
Souter had put to Waxman. At least three times he was able
to state his central claim: that, in the guise of protecting
children, the CDA operates as a ban on adult speech that is
constitutionally protected.
After Ennis finished, Waxman rose to give his rebuttal -
using the time he had saved from his first go-round. He had
five points to make. Rehnquist told him he had one minute.
In the middle of his second point, Souter interrupted him,
and in the middle of his response to Souter, Rehnquist cut
him off and brought the show to a close. It was that kind of
day for the government.
###
- ------------------------------------------------------------
The Netly News Network
http://cgi.pathfinder.com/netly/editorial/0,1012,744,00.html
@The Supreme Court
March 19, 1997
By Declan McCullagh (declan at well.com)
Noah Robischon (noah at pathfinder.com)
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," a chagrined 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.]
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Ari Herzog
ari at ici.net
Ari's Simple List of Record Labels
http://aleph0.clarku.edu/~aherzog/links/rec_lab.html
"Anything that is too stupid to be spoken is sung."
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