Continuing the discussion of the Communications Decency Act
(CDA) from the previous edition of Agora...

There was a series of recent postings about the CDA on the
Cyberspace Law mailing list, an informational list written by
lawyers and addressed to non-lawyers. The last of these
is their report on the Supreme Court hearing held on March 19.
I'll reproduce that here. Their prediction is that the
government presented a weak case and the statute will be found
unconstitutional. Of course, we won't know for sure until the
Court hands down a decision, probably in July.

The complete series of CDA postings is in the directory
/a/r/e/remmers/www - or if you're reading this via backtalk,
simply click on

        http://grex.cyberspace.org/~remmers/

They give an interesting and clear summary of the legal issues
involved.

55 responses total.

               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

                   *  *  *  *  *  *  *  *  *

     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.

                     *************************

     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.


             * * * * * * * * * * * * * * * * * * * * * *
                              authors:

             Larry Lessig    David Post    Eugene Volokh

             * * * * * * * * * * * * * * * * * * * * * *


     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).

The authors of the above are lawyers, and I'm sure they can read nuances
into the questioning which I can't.  I was much less optimistic after 
reading the transcript of the hearing at the ACLU web site.
 
(Also, since they were present, they may have caught humor where it 
was lost in the transcript.)
 
When I have time I want to post just a few excerpts -- mostly from 
the justices questioning -- which were either amazingly scary or 
amazingly clueless...

This response has been erased.

hey, no censorshi[on the censorship item!

Re 2.  Yes, definitely, do post those excerpts!

Earlier, I was warning everyone not to count on the Supreme Court to
overturn the CDA.  But now, based on other recent cases, what we know
about the Justices, and even the comments at oral argument (the current
justices are far less cryptic about their leanings during oral argument
than was traditional), I am optimistic about the outcome.

Here's how I see the Supreme Court seeing it:

Scalia, Rehnquist, Thomas will certainly vote for CDA

Kennedy, Ginsberg, Breyer almost certainly will vote against CDA

So the decision will lie with the other three justices...Stevens, 
Souter, and O'Connor.  I was encouraged by the remarks O'connor made 
during arguments.  I think she is leaning towards voting against it.

So it could still go either way, but Souter and Stevens represent the 
middle of the political spectrum and are more likely than most of the 
others to judge this on technical, rather than philisophical merits.  
I'm going to be optimistic and say that both will not find reason enough 
to overturn the lower courts.

Prediction:  The lower court ruling declaring CDA unconstitutional will 
be upheld by a vote of 6-3.

This response has been erased.

Re 6.  Normally the "liberals" (libertarians) are thought of as Stevens,
Ginsberg, and Breyer, while the "moderates" (most unpredictable) are
Kennedy, Souter, and O'Connor.

(Liberal Justices are equivalent to Libertarians, in the U.S. Supreme
Court context, because they vote most consistently to uphold individual
liberties in a variety of contexts.  The conservative justices are
statists.) 

No dispute about who the right wing is: Scalia, Rehnquist, and Thomas. 
All three are all but certain to uphold the Act.  So I agree with your
overall prediction: 6-3 to overturn.

I'm all for individual liberties!

i'm individually for all liberties.

Thanks for your impressions Larry and Richard. I am also optimistic 
after reading analyses elsewhere. Let's just say that I am cautiously 
optimistic.

I've liberated for (4) individuals.

This response has been erased.

A question for the law experts among us: If the Supreme Court
does find the CDA to be unconstitutional, is the majority
opinion likely to indicate what kind of regulatory statute
*would* pass constitutional muster? 

(Although I too hope the CDA is overturned "once and for all",
I doubt that we have seen the end of attempts to regulate the
internet even if the CDA itself is struck down.)

It depends on how clear the Justices feel like being that day.

the justices may express in their written opinions certain things which
suggest a line they may be willing to draw in the event of another court
challenge, but the opinions themselves will not establish specific legal 
precedents other than in the discussion of the specific reasons why this
particular challenge is overturned (or supported).

legal precedent, often determined by analysis of supreme court opinions, is
only valid as long as it remains unchallenged and unoverturned by another
supreme court opinion, but the precedent can only be created by a particular
court action, as explained in the opinion.

(this is my understanding of the process.  anyone who knows better, please
correct me.)

Statements that are unnecessary to the ruling on that specific case
are called "dicta".  Dicta are not precedent.  However, dicta from
the U.S. Supreme Court is taken pretty seriously!

but as a suggested interpretation of law, not as legal precedent, that simply
being an interpretation not yet challenged or overruled.

Re 19.  I said, just one line above, "dicta are not precedent."  Not yet
even SUBJECT to being challenged or overruled.  Just a casual comment,
but one which may help PREDICT future interpretations by that Court or
at least that Justice.

Yep, it was dicta that I was asking about, although I didn't
know the technical term until Larry used it.

Would anybody care to speculate what sorts of dicta the Court
might offer in the CDA case?

one could hope for:
  
  "... and don't you ever try this again!"
  

That'd be nice, but somehow I doubt it. Since the concept of
"zoning" has been upheld in other areas (e.g. banning adult
bookstores from certain neighborhoods, banning certain words
from broadcast TV & radio at certain hours of the day), I would
not be surprised if the court were to look favorably on some
such concept for the internet.

A *.sex domain for porn sites, at the same level as *.com and *.edu?

Of course then the question becomes what is a porn site.

This item is now linked to cyberpunk conf.  Come join us for in depth 
discussion of the CDA, encryption, software piracy, artificial life,
cyberpunk fiction and non-fiction, and culture on the net.  J cyber at
the next OK:

There are a number of legislators who have vowed to rewrite the law next year
if it is overturned in the Supreme Court, so I know Remmers is right that
overturning the CDA would not mark the end of attempts to regulate the
internet.

In fact one way thatlegislatorswill try to re-write CDA is
by y draftig laws that would make ISPs themselves responsibl;e legally for
material posted ontheirboards.  

citizxens have constitutional rights...ISPs donot...that would be harder to
overturn ancClinton supports  the conceptunfortunately.

The Clinton administration seems to be supporting a number of
measures that impinge on First Amendment rights, unfortunately.
There's a column by Floyd Abrams in today's (Sunday, March 30)
New York Times citing various examples. The administration's
defense of the CDA in the courts -- which I am not happy about
at all -- is just one example.

In theory, they don't have much of a choice.  And in practice, it would
look bad to take a dive on defending a law passed by Congress.

But face the political reality: the CDA passed Congress by overwhelming
margins.  If Clinton were to announce that he was dropping all defense
of the CDA, the House would probably start impeachment proceedings.

No good options for the President, here.

Richard, you say that "ISP's don't have rights."  I suppose if the computers
and modems and phone lines set themselves up by themselves, and run
themselves, that could be the case.  Instead, while ISPs do have lots of
equipment, they have lots of people, who do have rights, who are running the
equipment.  It is those of us running the ISPs who would theoretically have
to read everything on our systems constantly ane edit it.  The company I work
for could probably tripple in size (of course, vastly increasing our prices
to cover the expense), and still not have enough people to keep up with all
of that.

Re #29: In practice, it seems to me that the administration does
have a choice. The CDA also prohibits dissemination of abortion
information online, and the Clinton administration was real
quick to declare that it believed this to be unconstitutional
and that they would not defend it. If they could do that for
one part of the CDA, why not for other parts too?

It is true that Congress passed the Telecommunications Act by
an overwhelming margin, but it is also true that the CDA failed
as a standalone piece of legislation, so I do not think that
the Congressional vote on the Telecommunications Act can be
interpreted as an endorsement of the CDA. The CDA was just one
piece of a large, complex bill.

The only conclusion I can draw is that either (a) the
administration really believes that the CDA is constitutional, or
(b) upholding the constitution is taking a back seat to dubious
political advantage in the administration's words and deeds.
Neither choice makes me very happy with the Clinton admin-
istration.

Here's whats going to happen:  The government is going to pass legislation
making ISPs as responsible for content on their services as tv or radio
stations.  Right now, most places on the net, you can say "damn" or "fuck"
repeatedly and get away with it.  On TV, if sucn words go out over
broaddcast tv reapeatedly without censoring, its a $25,000 fine from the
FCC.

In the future, it maywellbe the case that if someone posts a child porn
story in grex's sex conf, grex's ISP (cicnet or whoever that happens to be
at the time) the government willbe able to fine the ISP for "broadcasting"
illegal material over the internet.  The fines would  be the governments
way of forcing ISPs to drop places like grex that wont censor themselves.

The CDA didnt pas muster legally because it was too broad.  Therefore the
next logical step is simple.  If you cant prohibit the dissemination o
of objectionable material due to first amendment objections, you look for
ways to enforce censorhip of that material.

Radio and TV stations have been stragled by regulations.  ISPs have had a
free ride thus far.  Dont look or that to continue to be the case.  One
way or another, Uncle Sam will find a way to regulate them

(For instance, the government oversees domain name registration
technically...they could decline to renew an ISP
's domain ina given year if that ISP doesnt follow any new rules)

Re 32.  Hardly anyone expected the restriction on abortion information to
be upheld; nobody wanted to spend political resources trying to pry it out
of the bill when it would never make any difference anyway.  It was just a
rhetorical sop to the anti-abortion folks.  Clinton loses nothing by
disregarding it.  Bush or Dole would have probably done the same, although
wrapping themselves in antiabortion rhetoric while doing so.

The Communications Decency Act, on the other hand, is widely seen as being
substance, and if the president were to renounce enforcement of it, every
newspaper in the land (a handful of liberal or libertarian ones excepted)
would be full of angry columns and cartoons depicting Clinton as the evil
ally of the smut peddlers.  Given that Congress is already deeply hostile
to him, failure to uphold this law would *easily* be plenty of excuse to
impeach him.

To say the CDA didn't pass on its own is naive wishful thinking.  The CDA
was added to the Telecommunications bill in the Senate by a vote of
something like 84 to 14.  That was an EXPLICIT up-or-down vote on the CDA; 
and the whole online community, fully mobilized, was able to attract the
support of barely more than a dozen senators. 

After the debacle in the Senate, the anti-CDA position was no longer taken
seriously, and Gingrich slipped it through the House as a no-controversy
"manager's amendment".  Had the free speech advocates wanted it, there
*could* have been a House vote -- but they knew it would have been even
more lopsided than in the Senate.  They also knew that most of the small
minority of congressmen and women who voted against the CDA would have
been endangering their own seats in an obviously fruitless attempt to stop
the thing. 

Freedom of speech on the Internet has MUCH LESS support in the current
Congress than, say, equal rights for homosexuals.  It is WAY out of the
mainstream.  I haven't seen any good polling on this, but I wouldn't be
surprised to see an 80% (or higher) level of support for a broadly worded
summary of the CDA or similar regulations.  Yup, this is founded in
ignorance, but there's a lot of ignorance out there.  What we think of as
the online community is *tiny* in political terms.

If you think the CDA is a moral issue, i.e., that support for the CDA is
morally bankrupt, you should visit a nearby middle-America community like
Canton Township or Livonia and ask randomly selected residents about it. I
bet you will have to ask a lot of people before you find one who agrees
with your (and my) position on Internet censorship.  Most of them would be
shocked and horrified at the notion that someone they elected voted or
acted to allow pornography to be disseminated on the Internet.  Is Canton
a morally bankrupt community?  A "yes" to that question automatically
marks you as an extremist. 

Indeed, if the CDA were put on the ballot in a November general election,
it might well carry Ann Arbor, let alone more conservative places.

If you expect Clinton to stick his neck out against the CDA, and reject
something desired by the overwhelming majority of the population and by
the overwhelming majority of their elected representatives, then you have
a very different idea of the president's role than he does, or for that
matter than anyone who has yet held that office. 

On this kind of issue, the only hope is in the courts.

It's not a purely conservative issue, you mnow.  It concerns all people who
have families that their children can get pornography on the internet. 
They're ignoring other issues here, but in general people are scared out of
their minds.  My parents included.  The way I think most people see this bil
is simply a method of resr5tricing pornograpy from reaching their kids.  They
dont' look at the broader implications.  It happesn many time sin American
history.

One of the main reasons this gets so much supposrt is that it can work on both
sides of politics... pornography violates conservative values and liberals,
who are generally more feministic in thinking, dont' like the way it de3means
women.  actully, everybody uses that argument.  

Re #33: Do you think that Clinton believes that the CDA is
unconstitutional?

Re 35.  Short answer: yes, I do think so.

Slightly longer answer: the final authority on whether something is
unconstitutional or not is the Supreme Court.  In something like this
that hasn't been addressed before, beliefs about whether a thing is
or is not constitutional are essentially guesses about what the Supreme
Court will do.

There is no question in my mind that the CDA *ought* to be declared
unconstitutional.  Earlier on, I warned y'all not to count on the Supreme
Court to do so.  Now, after seeing some of the other First Amendment cases
(e.g., the cable TV case), and hearing about what happened at the oral
argument, I expect the Court to rule against the CDA. 

Note that this is the conventional wisdom among lawyers and court
observers.  Ask a random sample of well-informed attorneys, and you will
find that the large majority expect the CDA to be overturned.  My own
lawyer acquaintances are not a random sample, but I don't know *any* who
are predicting that it will be upheld.  Normally I am skeptical about the
consensus view about future events, but it is usually correct in the short
run.

Bill Clinton is a lawyer, and as a former state attorney general, he is
very plugged in to the lawyer subculture.

Okay, at the risk of being called naive, I'll ask: If Clinton
believes that the CDA is unconstitutional, why doesn't he say
so?

#37...he doesnt *say* so because he is playing politics.  As a former law
professor and lawyer,  Clinton was well aware of the CDA's unconstitutionality.
 It was not going to be upheld.  Thats why it made no sense for him to stick
his neck out and veto the telecommunications bill and be called a supporter of
pornography.  It would have become a BIG issue in the campaign.  Dole would
have run ads saying, "Do you know what Bill Clinton thinks your kids should be
able to see on the Internet?!"

It would have been stupid to fall on his sword over this issue.  So instead of
veto'ing it, he specifically had the bill put on the fast track so that it went
straight to the Supreme Court after its first court test.  Fast-tracking the
bill so it was heard rapidly in court and now in the Supreme Court prevented
its enactment.  Clinton simply didnt need and doesnt need his political
opponents shouting that he's letting their kids read "alt.sex.beastiality" or
something.  It also bears mentioning that Clinton is computer illiterate.  It
is Gore who is the computer geek and was the driving force behind the
telecommunications bill and other cyber-related initiatives.  And since Gore's
wife Tipper was the spokesman of the drive to put warning labels on music cd's,
you have to believe the Gores are for some form of web censorship.  Gore is
mostly a friend of cyberspace though, and that rarity in a high ranking
politician, one who understands the technology.   

re #37:  without standing up for Clinton (I have *grave* reservations about
many of his information technology policies (and many of his other policies
to boot..)) I'm not sure it's appropriate for the chief executive to pass
judgment on the constitutionality of a legitimately enacted law.  In my
opinion the executive branch should ideally be expected to enforce the 
nation's laws whether they approve of them or not and leave the judicial
review to the judicial branch, where it quite properly belongs.  

I like to think we'd have a lot fewer bad laws if the executive branch
had less power to pick and choose which ones they were going to enforce,
and when..  Of course I could be totally wrong about that -- the processes
which generate the laws in this country aren't completely rational.

- Backtalk version 1.3.30 - Copyright 1996-2006, Jan Wolter and Steve Weiss