remmers
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response 1 of 55:
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Mar 21 14:06 UTC 1997 |
CYBERSPACE LAW FOR NON-LAWYERS
Topic: CONTENT REGULATION: THE CDA
(Number 6 of 6 on the topic CDA)
E-Mail Number: 76
Date Posted: 19 March 1997
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CONTENT REGULATION AND THE COMMUNICATIONS DECENCY ACT OF 1996
MESSAGE 6 of 6: The CDA: We Report from the Supreme Court
We thought we'd give you a flavor of the argument at the Supreme
Court Wednesday, on the CDA. Two of your three professors were
there. Here's a brief account -- and keep in mind: the Supreme
Court does not allow visitors to take notes at the argument, so
there may be some errors or omissions in what follows due to our
faulty memories.
The Government's Argument:
Two lessons ago, we sketched for you what we believed was the
government's strongest case. This was the zoning argument -- that
the CDA simply attempted to zone porn in cyberspace to a place
where kids couldn't get access. On Wednesday, however, the
government apparently forgot that argument. The case was argued
not by the Solicitor General (Walter Dellinger), but by one of his
primary deputies, Seth Waxman.
Waxman gave the weakest argument imaginable. He began with
something about the threat that indecency presented on the
Internet. On this issue (for those who believe that this is the
problem) he was ok. The Internet threatens, he argued, to make
ineffective all the real space regulation of indecency, because in
cyberspace, as it is just now, any kid can get access to an
unlimited amount of pornography.
But then, rather than shifting into the zoning argument,
mysteriously, Waxman began to talk about the weakest part of his
case: the definition of indecency. His claim was essentially
this: That it would be only a minor burden for publishers to
screen out indecency.
That was ok as far as it went, but Waxman gave as his first real
space example the example of a library. The Carnegie Library. In
the court below, the Carnegie Library said that they were concerned
because they wanted to put their catalog on the Web. But parts of
their catalog might be considered indecent, and hence the library
would face the threat of punishment unless it could find a way to
exclude the indecent material from the online catalog.
Bizarrely, Waxman offered this to the Justices, as an example of
how the burden of the CDA would not be too great. Said Waxman: it
wouldn't take a very sophisticated software program to find the
indecent card catalog entries, and exclude them. That may be
right, but it set an extremely weird tone for the rest of the
argument. In fact, we don't ordinarily think about libraries
segregating material based on whether the material is indecent.
And this first weird example seemed to procreate and simply inspire
more weird examples.
Justice Breyer asked whether Congress could declare indecent
telephone conversations between high school students criminal.
Imagine, Breyer said, high school students discussing their sexual
exploits. ("This has been known to happen," Breyer joked.) Could
Congress make that speech criminal? Waxman didn't have a clear
answer. That resulted in the Justices proposing even more extreme
examples for the government attorney's consideration: What if a
parent made indecent material available to his or her child?
Would that be a criminal offense? Again, Waxman had no clear
answer. Sometimes that would be child abuse, Waxman said, but if
the Court didn't think Congress could regulate such speech, then
it could narrow the statute (that is, the Court could read it in
a narrow way) so it would not cover cases such as this.
In the end, Waxman's mistake was to make the statute seem like a
kind of regulation we haven't seen before. The Justices were
already unsure about just what the Internet is. Waxman made them
even more unsure about the legitimacy of regulating it, given how
weird and different this regulation seemed. Rather than make the
Justices feel that this was just real space regulation applied in
cyberspace, he made the Justices feel that this was a kind of
invasiveness and censorship that real space regulation has never
seen. He failed, in our minds, to make the case for the CDA
plausible, let alone convincing. And we doubt whether more than
three justices accepted his argument.
The Plaintiffs' Argument:
Bruce Ennis argued the case for the plaintiffs (the ACLU, the
American Library Association, and the other organizations and
individuals who had challenged the constitutionality of the CDA).
He first responded to the government's argument that information
providers can simply implement "adult verification" devices so as
to comply with the statute. Ennis pointed out that while that might
be true for some (though not all) *Web sites*, the Web is only a small
part of "cyberspace."
Newsgroups, chat rooms, listservers and the like, Ennis argued, are
where most of the conversation on the Internet actually takes place,
and in those forums it is simply impossible for anyone to know
whether he or she is "making available" indecent information to
someone under the age of 18. As a result, the only way to comply
with the statute in those contexts is to refrain entirely from
communicating about "indecent" subjects. But that, of course, sweeps
too broadly -- adults have a constitutionally protected right to such
communication, and the statute would thus "chill" protected speech.
It was an effective rebuttal to a significant portion of the
government's presentation.
[During this colloquy, Justice Scalia asked a question to the
effect: "Why can't we just channel all communication on the Internet
onto the World Wide Web?" One can never be sure that Justice Scalia
is not just playing devil's advocate when he asks outrageous questions
like this, but we noticed that several of America Online's lawyers
visibly blanched at the suggestion that they simply fold up their
tent and go away!]
And even for the Web, Ennis argued that adult verification schemes
are "prohibitively expensive." There was some skepticism on the
part of some Justices (especially Scalia and Rehnquist) about this,
but Ennis vigorously pressed the points that (a) for many Web sites
(e.g., those hosted by commercial online service providers like
America Online or Compuserve) the verification schemes relying on
the use of CGI scripts cannot now be utilized, and (b) that other Web
sites being used for non-commercial purposes would find such schemes
financially burdensome in the extreme.
Ennis also spent some time following up some of the hypotheticals
that the Justices had been developing during the government's
presentation. In particular, he pointed out that not only, as
Justice Breyer had suggested, would a parent be *criminally*
liable under the CDA if the parent were viewing "indecent"
material with his or her 17 year old child looking on, but also
that an e-mail from parent to child discussing, say, safe sex
techniques might similarly subject the parent to criminal
prosecution.
Ennis also tried -- somewhat less successfully, we think -- to
suggest that the statute would simply be ineffective at
controlling the exposure of minors to indecent material, because
of the large amount of material available on the Internet from
foreign sources. Again, Justices Rehnquist and Scalia found this
unpersuasive -- so we can only shut down 50% of the dirty
bookstores, Scalia asked, does that make the statute
unconstitutional?
Finally, Ennis returned to the major theme developed in the briefs:
that there are "less restrictive alternatives" to accomplishing the
government's goals here than by implementing the CDA, namely the
parental control filters that already are in place on the major
online services or those available from such providers as SurfWatch,
Net Nanny, and the like. What, one of the Justices asked, about
children who might not be supervised by parents at all? Doesn't the
statute help to protect those children from this material in a way
that no other form of protection can? Perhaps, Ennis conceded -- but
the cost to society is simply too high to permit the government to
proceed in this manner.
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So there it is. In our view, the Justices appeared to be
sympathetic to the plaintiffs' arguments attacking the CDA, with
perhaps 2 or 3 exceptions -- but handicapping the Supreme Court from the
conduct of the Justices at oral argument is a notoriously difficult task
(as is said regarding the weather in many places -- "only fools and
newcomers try to predict"), and we'll all just have to wait until the
opinion is released (some time before the July Court recess) to see
where they really stand.
So, our final view on the CDA is this: the government had two very
difficult hurdles to overcome. It had to show that the statute could be
narrowed to properly regulated speech. And it had to show that the
burden of its zoning provisions for that properly regulated speech were
not too severe. As we have explained, if it had done the first, at
least one of us believes it could have done the second. But none of us
believe the government came close to doing the first. We all believe
the statute is, and will be, held to be unconstitutional.
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authors:
Larry Lessig David Post Eugene Volokh
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Cyberspace-Law for Non-Lawyers is presented by the
Cyberspace Law Institute (http://www.cli.org) and
Social Science Electronic Publishing (http://www.ssrn.com).
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