Even if the Supreme Court agrees with a lower court's finding that the Communications Decency Act violates the First Amendment, some watered-down version of the law will probably be introduced in its wake, a group of free-speech advocates said at a press conference today.
What's more, some believe the high court will uphold certain portions of the law, given the political furor surrounding the question of how to keep online pornography from the eyes of children.
"It is very clear that Congress is not going to let this alone," said Jerry Berman, executive director of the nonprofit Center for Democracy and Technology, in the briefing on strategy for fighting the CDA, which goes to the Supreme Court Wednesday. "We've been told by family groups and some other (pro-CDA groups) that if we win this round, there will be another."
Complicating matters is the makeup of the court, according to one of the attorneys set to argue the case.
"This is a court, frankly, that is divided on First Amendment issues," said Ann Kappler, an attorney for the Citizens Internet Empowerment Coalition, one of several plaintiffs against the CDA. "There is also a resistance to set standards for a medium that is still evolving."
Some compromise outcome, such as a ruling against the CDA as a whole but in favor of a replacement law targeted at minors, could usher in a legal and logistical nightmare for Web content authors and Internet service providers, some of the anti-CDA advocates said.
"The government will make a concerted effort to save some of it," Kappler predicted, adding that the law's "display" provision, aimed at keeping pornographic photos off Web sites accessible to children, could be particularly hard to defeat.
"One of our other concerns is that it (the court) won't really understand the medium," said John Morris, another CIEC attorney. "If they go to the same lengths as the lower court to learn about how it works, we should win. But if they accept the facile and misleading contentions of government in its brief, then we could have problems," he said.
To discourage further attempts by Congress or the U.S. Department of Justice to legislate online content distribution, it will be critical for the court to recognize the points delineated by the three-member panel that found it unconstitutional last June, Berman said.
"Our job is to convince the court of the findings of fact in the lower court and argue that the government's appeal is merely a zoning ordinance," he said.
Restraints on content distribution based on the age of those who receive it, such as those proposed by the government in its appeal of the lower court ruling, would critically minimize the Internet's "democratic potential," Berman said.
To keep this from happening, the coalition will argue that the CDA would effectively limit constitutionally protected communications between adults, in its provision that newsgroup participants tailor their discussion accordingly if a minor is among them, Kappler said.
The anti-CDA forces, also including the American Civil Liberties Union, the American Library Association and a host of IT companies, will argue that the global nature of the Internet makes much of the law impossible to enforce, Kappler said.
Finally, the coalition will assert that the legislation, which criminalizes the sending of "indecent" content via the Internet, is impossibly vague and will point out the usefulness of filtering software designed for parents to monitor children's surfing, she said.
The ACLU vs. Reno case goes to the high court just more than a year after its introduction, as part of the Telecommunications Act of 1996 last February. It was challenged immediately upon its introduction, on First Amendment grounds.
After its enforcement was stopped in June with the lower court ruling, the Justice Department appealed the matter to the Supreme Court. In its brief in support of the appeal, the department alleges that curbs on the distribution of explicit materials to minors would draw more users to the Internet, rather than the other way around.
Three other plaintiffs filed briefs last month in support of the government's position: an anti-pornography group called Enough is Enough, a conservative advocacy group known as Morality in Media, and a group of members of Congress led by Neb. Sen. James Exon, one of the original sponsors of the CDA.
More background on the CDA can be found on the ACLU Web site (www.aclu.org/), the CDT site (www.cdt.org/ciec/) and the Electronic Frontier Foundation site (www.eff.org/).