March 19, 1997 1:45 PM ET
High noon at Supreme Court as sides stage final CDA duel
By Maria Seminerio

  WASHINGTON-Attorneys representing the two sides in the debate over the Communications Decency Act held their final duel this morning.

In consecutive 35-minute oral presentations before the Supreme Court, the opposing attorneys played to a packed gallery-and a larger nationwide audience-in a case that has turned into the cause célèbre of cyberspace.

The justices directed pointed questions at Deputy Solicitor General Seth Waxman, who at times appeared flustered by their aggressive line of questioning. Justice Clarence Thomas was the only judge not to ask a question. The only judge who appeared sympathetic to the government's argument was Justice Antonin Scalia.

"The Internet threatens to render irrelevant all previous attempts to regulate children's access to indecent materials," said Waxman. He cautioned that the Net effectively offered children "a free pass to every adult bookstore online."

Waxman argued that Web site operators offering pornographic materials should use credit cards or some other kind of fail-safe verification service to determine people's age before letting them view objectionable materials.

However, Bruce Ennis, the lead attorney representing the anti-CDA coalition, dismissed the government's argument as unworkable.

Last June, a three-judge panel in Philadelphia blocked enforcement of the legislation on the grounds that it violated the First Amendment, leading to today's showdown.

At that time, Ennis said, the government conceded it was impossible to screen for age because of the way the technology works.

"For noncommercial Web sites, most credit card companies will not perform any verification of their users," Ennis said. "Some credit card companies do [check] but they charge $1 per verification. So you, the speaker, would have to pay $100,000 to verify the age of 100,000 speakers."

The CDA's opponents were not attempting to challenge the legislative restrictions on child pornographers putting pictures online. That action is already banned by current laws, he added. But he warned that the catch-all wording of the bill would present a potential thicket of constitutional problems down the road.

"The indecency standard is far broader than anything this court has previously defined," he said.

In a press conference later in the day that was sponsored by the Citizens Internet Empowerment Coalition, Ennis said he doubted the government would agree to change the wording of the CDA to narrow its reach.

"I the government concedes that there can be narrowing, then it concedes the whole case," Ennis said.

Charles Cooper helped compile this report

See our timeline of Internet decency milestones.

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