IP: ACLU v. Reno: "the best bench we could hope for"

[Dave Farber <farber () central cis upenn edu>]

=======================================================
NEWS ANALYSIS: ACLU v. RENO
+
by Craig A. Johnson 
American Reporter Correspondent
Washington, D.C.
5/11/96 
cda
1307/$13.07


                   'AS GOOD A BENCH AS WE CAN HOPE FOR'
                           by Craig A. Johnson 
                     American Reporter Correspondent


        PHILADELPHIA -- The buzz was loud and the message clear as a
        panel
of judges in the ACLU v. Reno case heard closing arguments in
Philadelphia and then adjourned to consider the first of two major
constitutional challenges to the Communications Decency Act (CDA) that
critics say threatens free speech on the world-wide Internet.
        The second case, Shea v. Reno, is set for final arguments on
        June
3 in Federal court in Manhattan.  Both cases are being heard by three-
judge panels and are likely to be consolidated if they reach the
Supreme Court under an expedited review process outlined in the law. 
Both cases were filed immediately after President Clinton signed the
huge telecom- munications reform act, which contains the CDA, on
February 8.  The ACLU case was the first to end.
        As government lawyers headed off into the foggy Philadelphia
afternoon, the words of Judge Stewart Dalzell in Federal court here
yesterday still rang in the minds of courtroom observers:  In order to
preserve the Internet "as the most democratic medium that the human
mind has come up with yet, a chilling effect is something we have to
consider" as the panel rules on the CDA.
        "How can we, as a matter of judicial responsibility, sustain
against a chill," Judge Dolores K. Sloviter, chief judge of the Fourth
Circuit Court of Appeals asked government counsel, in the absence of
technology which "would not block appropriate [First Amendment
protected] material for adults? 
        "Why doesn't the government concede that a preliminary
        injunction
would be appropriate," she queried, her exasperation evident.
        The central question of how to "find out whether one is an
        adult"
was left unanswered throughout the whole case, Sloviter asserted. She
charged that the government was asking the panel "to sustain the
statute based on the defenses," which are not validated by current
technical realities.  
        "Until it exists," Judge Sloviter exclaimed, "it isn't
        working. 
Until it works, we don't know how it will work." Judge Dalzell agreed,
stating, "The evidence is quite clear that . . . that there is no
technical way to screen for age based on available technology" which
non-commercial providers can avail themselves of.
        These were the most compelling signs yet that the panel may be
leaning favorably toward the plaintiffs' request for an injunction. 
"This is as good a bench as we can hope for in this situation," ACLU
lead attorney Christopher Hansen told reporters after adjournment.
        The day's arguments covered the entire waterfront of issues
        from
the facial challenges to the constitutionality of the Communications
Decency Act (CDA) to an animated debate on "defenses" and "safe
harbors" to the disclosure of the recent FBI's "review" of Compuserve
at the behest of the right-wing American Family Association (AFA). 
        Hansen and American Library Association/Citizens' Internet
Empowerment Coalition (ALA/CIEC) counsel Bruce J. Ennis hammered home
point after point until finally, it seemed, the government's entire
house of cards had collapsed onto its lap.  The plaintiffs' attorneys
effectively eradicated whatever defenses existed with respect to both
the "indecency" standard's ability to pass Constitutional muster on
its face, as well as the Act's attempt to tack a broadcast standard
originally mandated by the Federal Communications Commission (FCC)
onto the Internet.
        Hansen forcefully got across the facial argument that the
        statute
is an "attempt to prevent adults from having information that they are
constitutionally entitled to."  "All speech," he declared, "would be
brought down to a level acceptable to minors."  Hansen stressed again
and again that the act would "prohibit speech that has serious value,"
notwithstanding the government's contentions to the contrary.
        In his closing remarks, Hansen inveighed further against the
criminalization of speech that would result from the law.  "Libraries
and institutions of higher learning" would be thrown into a witch-hunt
atmosphere, he charged.  
        Speaking to reporters after adjournment, Hansen amplified on
        this,
saying that the CDA was being used by right-wing groups such as Enough
is Enough to "go after libraries and colleges, which are not what we
normally think of as great smut-peddlers."  Religious Right activists
recently tried to ban books online at the University of California -
Riverside, a campus located in one of the most conservative regions of
the state.
        Hansen also decried the government's argument that, with
technological development, "it is possible to label speech as decent
or indecent."  
        The "notion that Government would impose on all of us, before
        we
speak"  a criteria as to whether our speech was decent or indecent, he
declared, raises a "serious Constitutional problem," he said.
         ALA/CIEC counsel Ennis argued in closing that "there is
         nothing in
the pipeline" that will technically work to identify adults in online
newsgroups, chat rooms, and listservs or mail exploders. Second, he
said, the government admitted that tagging is not effective, and even
if it were, it still would not constitute a "safe harbor." 
        Furthermore, "it would violate the doctrine against compelled
speech," which states that "attaching a pejorative label to one's own
speech" is something that someone "should never be required to do."
There is no reason to assume, that Congress had any intent to require
self-labelling, he maintained.  In fact, Congress specifically
rejected self-labelling with respect to broadcast speakers. 
        The Internet, Hansen urged throughout yesterday's argument,
        was a
specific medium, which could not tolerate having rules applied to it
which were crafted in the past for other media.  Rather, it is a
"democratizing, many-to-many" medium. One of its real effects, he said
is that it "is making us all speakers and listeners."
        The panel of judges seemed to concur that the CDA was based on
broadcast laws.  Judge Dalzell stated that Congress had "reached into"
past judicial decisions applying to broadcast media and "begat the
Communications Decency Act."  But, if access to "indecent" content is
found not to be "pervasive," which is the primary characteristic of
broadcast media, then how could they sustain this statute in light of
the unique characteristics of the Internet, Judge Dalzell queried?
        This is particularly relevant for chat rooms, news groups, and
list servers or mail exploders.  Plaintiffs' council Ennis argued that
"tagging and registering cannot possibly protect minors" in these fora
unless there is ample parental supervision and control.  If that is
present, Ennis said, then we "don't need the law."
        Judge Sloviter took the questioning one step further,
        declaring
that to require governmental actions which may militate against the
wishes of parents was "a serious Constitutional question."  She asked:
 "What is the Government's interest in shielding 15-year olds from
material that they want to see and the parents don't care" whether
they see? 
        Sloviter went on to grill Government counsel on the intent of
Congress to "help the parents."  How, she asked, could this be done if
the Court "found that the evidence does not support the proposition
that there is a significant probability of inadvertently chancing . .
." upon the material without "a lot of clicks or a warning?"  "What
would remain of the government's compelling interest," she asked.
        The questions largely went unanswered by government lawyers,
        though
US Atty. Jason R. Baron said that "Congress could draw a bright line"
which would would in fact criminalize some speech with redeeming
value. The Government, he said, may prevent a 14-year old's right to
read Henry Miller's Tropic of Cancer online. Similarly, excerpts from
a Broadway play on AIDS may fall within the statute's boundaries. 
        This did not sit well with the judges as they repeatedly
        emphasized
that the Congressional Conference Committee statement that material
"with no intent to offend" should not be swept under the law.  
        At one point, in a direct parallel with the questions at issue
        in
Shea v. Reno, Judge Dalzell, observing that recent issues of the
Philadelphia Inquirer and the New York Times had pictures and articles
that many people would find "patently offensive," asked government
counsel if he would advocate a "newspaper decency act." 
        Dalzell explained to a befuddled counsel that Congress clearly
        did
not have the power to write a "newspaper decency act."  "What is it
about the Internet media that makes it a completely different ball
game," he asked.  No persuasive answer was uttered by government
counsel. 
        The judges returned several times to the government's
        contention
that effective technology for screening, tagging, and blocking would
soon be available.  Sloviter was unconvinced.  "After five days of
testimony," she said, "all we got was hypotheticals." The tagging
scheme introduced by one of the government's witnesses, Sloviter
suggested, "was the product of [his] creative imagination," and
"thought up . . .  after the government hired him as a witness." 
        In the end the decisive issues were raised in sharp relief by
        all
three judges.  If the intent of Congress was to help parents prevent
their children from viewing objectionable content, and the technology
that is available cannot do that, what good is a CDA?  If available
technology cannot find a solution for authenticating adults and
children, then doesn't the rationale for the CDA collapse?  And, if
the CDA, with its labelling scheme of "indecency" is overbroad and
covers speech which has value, then isn't it unconstitutional on its
face? 
        Despite all the roundabout arguments and twists and turns, the
government never effectively answered any of these threshold
questions. 


                                -30-


    (Craig Johnson is a telecommunications analyst in Washington.)


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