March 19, 1997 6:15 PM ET
High Court zings both sides in CDA debate
By Maria Seminerio

  No one knows how the Supreme Court will decide when it rules this summer on Reno v. ACLU, better known as the Communications Decency Act.

But one thing stands out from today's proceedings: Five of the nine justices consistently asked more critical questions of the government's attorney than of the American Civil Liberties Union coalition.

"[Will] high school students who go online to discuss their sexual experiences--real or imagined" be guilty of a federal crime? Justice Steven Breyer wanted to know.

Seth Waxman, deputy solicitor general at the Department of Justice, responded that the government believes the law's positive affects would outweigh the damage of any potential curbs on speech.

"It seems to me that, under your analysis, it could potentially be criminal to engage in indecent speech on a public street corner in the presence of minors," Justice William Kennedy said.

"There's nothing constitutionally impermissible about telling someone using a bullhorn to shout out indecent speech [in public] that he should use another forum," Waxman responded.

But the justices were also tough on ACLU coalition attorney Bruce Ennis.

"Must every facet of cyberspace be open to [indecent] speech?" Justice Antonin Scalia asked Ennis. Scalia was by far the most vocal questioner of the anti-CDA coalition's case.

Ennis responded that, at the Philadelphia hearing that overturned the CDA last June, "the government's own experts conceded ... that it's impossible to screen for age among news group participants."

Justices also took exception to Ennis' argument that the United States couldn't stop the flow of pornographic content from foreign shores.

"It's a weak argument to say that the U.S. can't lead the way" in setting worldwide standards for Internet content for minors, said Kennedy.

Ennis told the court that "the government interest was in protecting children from indecent speech altogether, which this law does not do."

Scalia drew a parallel between the Internet and sidewalk vending machines, saying that it is illegal to sell pornographic magazines in such machines. Ennis said that most newsgroups, chat rooms and list servers do not have CGI script capability, which would allow age screening.

Regardless of the verdict, it was clear from the arguments presented that the government thinks it must do something to protect children from exposure to sexually explicit material on the Web. The government cited more than 8,000 such Web sites, with the number expected to double every nine months.

It was also clear that the government thinks the CDA, which criminalizes the online transmission of "indecent or patently offensive" materials to minors, can still serve a vital function, and that parts of it might pass muster with the High Court. The CDA was declared unconstitutional by a Philadelphia district court last June.

Waxman argued, in front of a packed Supreme Court chamber, that the law can be enforced through technology allowing Web site operators to verify users' ages before they log on. He also argued that the CDA adequately defines "patently offensive" as a legal term of art, a point that has been repeatedly contested by CDA foes.

Meanwhile, the ACLU-led anti-CDA forces maintain that the CDA won't do the job its proponents claim it will do--and they say that even if it would, there are much less restrictive ways to safeguard minors in cyberspace.

Ennis also detailed the coalition's argument that filtering software will solve most of the problems raised by CDA proponents, enabling parents to choose exactly the materials they want to keep away from their children.

"This software lets parents either keep their children off the Internet altogether or screen for content at cost," Ennis said.

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