From: mnemonic@eff.org (Mike Godwin)
Subject: What the Final Arguments Tell Us About The Fate of the CDA
June 5, 1996
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                                  by Mike Godwin, EFF Staff Counsel


I was sitting there in the Philadelphia courtroom, typing quietly 
away at my notes, when, suddenly, I had to look up, stop typing, 
and just watch what was happening. It wasn't merely the 
pointedness of the questions Judge Stewart Dalzell was asking 
government attorney Tony Coppolino -- Dalzell had already 
established himself that day as the most aggressive questioner of 
the three-judge panel reviewing the constitutionality of the 
Communications Decency Act. 

No, it was the content of the questions. Holding a copy of the 
_Philadelphia_Inquirer_ in his hand, and indicating an above-the-
fold, page-one photo of the battlefield execution of a soldier in, 
I think, Bosnia, Judge Dalzell questioned Coppolino as to a 
hypothetical "Newspaper Decency Act." Suppose that Congress is 
worried about the dangers to children posed by violent newspaper 
images, Dalzell said. And suppose that Congress, recognizing that 
it couldn't constitutionally ban such images altogether, chose 
instead to pass the "Newspaper Decency Act," which simply required 
newspapers that want to print such photographs on page one to 
print them *below the fold* (i.e. so that the such an image is
not visible to passersby as the paper sits on the newstand rack)? 
Would such a law be constitutional?

And it was that question, and the exchange that followed it, that 
convinced me, finally and completely, that the judges "got it" 
about the constitutional problems with the CDA. At that moment I 
was certain that the CDA would be struck down.

I have known intellectually about the value of what lawyers call 
"oral argument" since I was a law student and started reading 
accounts about Supreme Court cases. But I never really appreciated 
its value as a crucible for legal theories until I attended the 
final arguments, on May 10, of the Philadelphia cases challenging 
the Communications Decency Act.

"Oral argument" is a point in a hearing or other court proceeding 
where the lawyers state the issues and argue their legal points 
"live" in front of the judge. When this is done at the conclusion 
of the lawyers' presentation of a case, it's termed "final 
argument." And if you had been there in the federal courthouse on 
May 10, you'd have seen how important oral argument can be.

Now, once you know the kind of research and writing that goes into 
a litigated case, you may wonder, as even some lawyers do, why 
courts ever bother with oral argument, especially in the final-
argument phase. After all, that last phase is when all the 
arguments, including legal citations, are laid out right there in 
the opposing sides' briefs. What's the point of having the judge 
(or judges, if there's a panel, as there is in each of the CDA 
challenges) go through the process of quizzing the lawyers for 
each side about their arguments? Shouldn't they just save 
everybody time by going back into their chambers and reading the 
documents?

The answer is, oral argument turns out to be the best way for 
judges to test the legal theories that each side is advancing. By 
putting the lawyers on the spot, by asking them tough questions 
about real and hypothetical scenarios, by questioning them 
directly on the steps of their reasoning, judges can test, very 
efficiently, whose arguments hold up best, and whose arguments 
don't hold up at all.

I had been dying to be there for the whole set of court dates, but 
I live on the wrong coast. Still, the minute I realized I could 
fit an appearance for the Philadelphia final argument into my 
schedule, I booked a flight and a hotel room.

As a result, I stretched myself awake at 7 a.m. that Friday 
morning (4 in the morning for me -- I was on San Francisco time), 
dressed quickly, and joined the American Civil Liberties Union 
lawyers in the lobby of the Holiday Inn, just walking distance 
from the courthouse. I'm one of the "counsel of record" in this 
case myself -- the Electronic Frontier Foundation is also a 
plaintiff in the case -- and I had assisted ACLU's lead counsel, 
Chris Hansen, in putting _ACLU,_et_al._v._Reno_ together. We'd 
spent time on the phone together, and had sent a lot of e-mail to 
each other. But this was only the second time I'd met Chris face-
to-face, and it would be the first time I'd get to see him in 
action. I met Chris and another ACLU lawyer, Ann Beeson, in the 
lobby.

Our group got to the courthouse so early that the federal 
marshals, who are responsible for keeping the peace, had not yet 
set up that little electronic gate they use to check everyone for 
firearms and other weapons.  I shortly discovered that this was a 
blessing -- I walked right in without fear of anyone's 
confiscating or zapping my potentially lethal PowerBook. Danny 
Weitzner (a director of the Center for Democracy and Technology, 
which is co-sponsoring the companion lawsuit, _American_Library_ 
_Association,_et_al._v._United_States_Department_of_Justice_) told 
me that other attendees had had some trouble clearing their 
computers with the feds. I guess that by this time the law-
enforcement guys figured the nerds and their toys were no threat.

Nor was I the only one tap-tapping away (but quietly and 
respectfully -- we were in court!) when the final arguments began.  
Chief Judge Dolores Sloviter instructed the attorneys that this 
oral argument was "for our benefit rather than for yours," and she 
warned them that "we will interrupt you with numerous questions." 
Each attorney would have to make his arguments -- *and* answer 
questions -- in a strictly limited period of time. Concluding her 
opening remarks, Judge Sloviter, flanked by Judge Dalzell and 
District Judge Ronald Buckwalter, announced that "We will hear 
counsel."

The attorneys for the two cases had divided up in advance the 
burden of the making the final legal and constitutional arguments.  
ACLU's Chris Hansen would be up at bat first, focusing on the 
overbreadth and vagueness challenges to the statute, after which 
the A.L.A.'s Bruce Ennis (himself a former ACLU attorney) would 
focus on the least-restrictive means argument. Both attorneys 
would also address the fundamental question of whether the federal 
government even has the authority to regulate nonobscene, First-
Amendment-protected speech, in any medium other than broadcasting.

Hansen opened his remarks by noting that there were "two subjects 
that are not in dispute in this case." The first, he said, is that 
"this is a criminal statute"; the second is that "this is a 
statute aimed at constitutionally protected speech." Hansen 
underscored a basic legal fact about the constitutional tests of 
both speech-restricting and criminal statutes: that if either kind 
of statute is "vague" (you can't tell what is 
prohibited/regulated) or "overbroad" (it has the effect of 
"chilling" lawful conduct or speech), it's unconstitutional. The 
terms of the CDA, Hansen said, are unclear as to what is 
prohibited (neither the "indecent" or "patently offensive" terms 
has ever been defined by Congress or the courts), so no one -- 
from big conferencing systems like CompuServe to newcomer Web 
publishers like Time Warner and Paramount to individual Usenet and 
e-mail users like you and me -- can be certain about what kinds of 
speech will or won't land them in hot water. What's more, the 
sheer scope of the legislation will cause lots of people to worry 
about what they post to Usenet or other public digital forms -- it
will chill their expression of even constitutionally-protected content.
 
What adds to the uncertainty, Hansen said, is that the "defenses" 
provided by the statute -- that is, the things you have to do to 
avoid criminal liability -- are defined in terms of whatever 
filtering or screening technologies happen to be available at any 
given moment. Subsection (e) of the CDA, he pointed out, 
conditions a defense on the defendant's use of "reasonable and 
effective measures under current technology." As a result, Hansen 
said, the defenses will change every time the "current technology" 
changes. What worked last year won't necessarily work next year, 
which makes it hard to know what kind of planning you have to do.

Hansen then moved into the more basic constitutional question. 
"What this highlights, to me anyway, is the nature of the medium 
we're talking about." In response to questioning from the bench, 
Hansen distinguished computer communications from broadcasting, 
which the Supreme Court held to be more regulable than print or 
other, older media -- partly because broadcasting frequencies are 
"scarce," and partly because, in the words of Justice John Paul 
Stevens, broadcasting is "pervasive" and "uniquely accessible to 
children, even those too young to read." 

If the judges are going to insist that the Net is like any prior 
medium, he said, it's most like print. "There are a limited number 
of speakers in the context of television," Hansen argued, while 
the Net is arguably "the most democratic means of speech yet 
devised." Online communications, he said, potentially "makes all 
of us as powerful as CBS News." And since every individual is a 
potential publisher on the Internet, the CDA is "calling upon 
every single American to define 'indecency'" -- a term on whose 
definition no majority of the Supreme Court itself has never been 
able to agree.

To impose such a burden on everyday citizens, on the pain of 
criminal penalties, said Hansen, is "particularly onerous." After 
all, he reminded the judges, "we're not talking about obscene 
speech." Nor, he added, is anyone defending child pornography -- 
the other major category of illegal expression. Instead, the 
challenge to the CDA is based on constitutionally protected speech 
-- speech that may not violate community standards, or that has 
serious social value. Such speech may not even appeal to what the 
Supreme Court has called "the prurient interest" -- said Hansen: 
"It's hard to say how anyone would be turned on by the George 
Carlin monologue" that was at issue in Federal Communications 
Commission v. Pacifica, the 1978 case that established the 
government's authority to regulate so-called "indecency" in 
broadcasting.

Hansen's presentation was frequently interrupted by -- in fact, 
it's fairer to say "driven by" -- questions from the bench, 
primarily from Judges Dalzell and Sloviter. And when Hansen's time 
was up, Bruce Ennis, speaking for the plaintiffs in the A.L.A. 
lawsuit, got a similar grilling. "I'm going to speak primarily 
about the subsection (e) safe-harbor defenses," Ennis told the 
court.

"Subsection (d), standing alone," he said, "would constitute a 
flat ban on speech that is constitutionally protected for adults." 
The infamous subsection (d) of the Communications Decency Act is 
the one that prohibits any "display in a manner available to a 
person under 18 years of age" of so-called "patently offensive" 
material. In effect, this part of the statute turns you into a 
felon if a 17-year-old college freshman obtains information from 
your Web site that would be perfectly legal if he obtained it from 
the Barnes & Noble bookstore at a shopping mall. No exceptions for 
parents, or teachers. No discussion of whether the material is 
educational or not. If you knowingly publish perfectly legal 
material from your computer or Internet node, you can end up doing 
two years in Club Fed.

Ennis stressed the fact that the CDA creates a criminal sanction 
for people engaging in certain kinds of constitutionally protected 
speech on the Net. Worse, he said, while in every other medium, 
speakers have a sure and safe way of complying with prohibitions,
there's no such guarantee under the Communications Decency Act. 

Asked Judge Sloviter: To whom *is* the safe-harbor defense 
available? Ennis responded: While a credit-card-approval 
requirement might be available under the dial-a-porn law, which 
only regulates *commercial* speakers, there's no similar mechanism 
available for the noncommercial speakers who make up the majority 
of users of the Net.

Judge Dalzell jumped in. Even for *commercial* speakers and 
publishers, using those defenses "are, at most, [merely] evidence 
of compliance" with the statute, aren't they? They're not 
guarantees that the speaker/publisher won't be prosecuted and 
convicted anyway, are they? Ennis agreed. At most, they're merely 
"substantial evidence," he said, citing a letter to that effect 
from one of the DOJ's assistant attorneys general. Dalzell then 
jumped in again, with a question about the leading dial-a-porn case
(Sable Communications v. FCC, in which the Supreme Court held, in 1
989, that a flat ban on "indecent" commercial phone calls was 
unconstitutional). Asked Dalzell: Didn't Sable say the defenses 
were what would make a regulation of indecency -- as distinct from 
a ban -- constitutional?

Ennis responded by noting what makes the Internet different from 
dial-a-porn services: "The vast majority of speakers on the 
internet do not charge for access to their speech." Therefore, 
said Ennis, the statute provides a defense, if any, only to "that 
small subset of speakers" who can afford to use the credit-card 
companies to screen out minors. In other words, asked Dalzell, the 
people who could comply most easily are the commercial 
pornographers? Ennis agreed that this is so. "Credit card 
companies simply will not verify credit cards for noncommercial 
speakers," he said. Referring to testimony from the  A.L.A.'s 
impressive array of technical witnesses, he added that "the 
evidence is quite clear that ... there is no technological way to 
screen for age on the Internet."

Judge Buckwalter also had a question about the defenses: With 
regard to the affirmative defenses, he asked, isn't this statute 
like other criminal statutes, which place the burden of proof of 
guilt on the government? No, said Ennis, the statute is not 
structured that way. Once the government has established its basic 
case (what lawyers call a "prima facie" case) that the defendant 
has knowingly made "patently offensive" material available, the 
burden shifts to the *defendant* to prove that the so-called 
defenses apply.

Having been peppered by questions from the bench, Ennis saw that 
he was running out of time, and commented, "We haven't spent as 
much time talking about newsgroups, chat rooms, and mail 
exploders" where the sort of screening prescribed by the CDA is 
even more difficult to implement than it is on the Web. "Those are 
huge areas of the Internet," he said.

Ennis also noted that that the government's argument seemed to be 
that every user on the net would be free from criminal liability 
if they "tag" or "self-label" or "register" their speech as 
potentially inappropriate for minors.

Dalzell responded with some sarcasm: "Do you take that point 
seriously in the light of what happened to CompuServe?" The 
venerable online service had been the subject of headlines in the 
days just prior to the final argument -- the Department of Justice 
had announced that, in response to complaints from the American 
Family Association (Donald Wildmon's organization), CompuServe's 
content was being reviewed for possible violations of the CDA. Are 
the government's people, asked Dalzell, really serious about these 
defenses? After all, the material in question was, in fact, tagged 
and in a separate directory, and screened by parental-control 
device. Yet this complaint was *still* referred to the FBI. And 
CompuServe was made to look in the national headlines as if it was 
a scofflaw porn vendor. So what use are the defenses?

Ennis agreed that they didn't seem to be of much use. He also 
noted that even if the commercial online services tag or register 
their content, tagging and registering will not work unless the 
parents are using software filters of some sort. But if the 
parents are all using filters, which may be based on a neutral 
content-classification scheme such as PICS, there's no need for 
tagging and filtering.

At this point, Judge Sloviter addressed another issue: What about 
the risk of a child's inadvertently coming across the 
inappropriate material?

According to the available evidence, Ennis said, "the odds are 
slim" that a child would come across this material by accident. In 
interactive computer services, unlike broadcast or radio, the user 
chooses where he wants to go.

As the clock ran down, Sloviter had even more questions: Could 
Congress trump parent wishes? After all, she said, the CDA's 
conference-committee report says it's the empowerment of parents 
that they're aiming for. And isn't there evidence that, even if 
the CDA were found to be somewhat effective, some substantial 
number of children could encounter the stuff outside the home"?

Dalzell chimed in: "Internet cafes? Libraries?"

And, asked Sloviter, what about the difficulties of even smart 
parents in using filtering and PICs?

Ennis attempted valiantly, if not wholly successfully, to answer 
all the questions in his remaining time, noting in particular that 
it's not difficult for parents to use this stuff, but if it is, 
that's as much a problem for the government's arguments as it is 
for the plaintiffs'.

As the clock ran out, Ennis was asked whether the statute could be 
rewritten by Congress and made constitutional. He allowed as how 
it could be improved -- especially by striking out the "display" 
offense altogether -- but the message was clear that he didn't 
think the statute could ever be made wholly constitutional. Hansen 
had given a similar answer to the same question earlier.

In the short break between Ennis's presentation and the 
government's, David Sobel of the Electronic Privacy Information 
Center looked over at me and said, with a little worry in his 
voice, that the questioning from the bench seemed a bit tougher 
today than it had in earlier phases of the case. "I think it's a 
good sign," I told him. "They're asking tough questions, but 
they're asking *very intelligent* questions."

Then DOJ attorney Anthony Coppolino got up to give the 
government's side of the case. And if the questioning seemed 
lively in the first part of the oral argument, it was so fierce, 
so sceptical, and so pointed during the government's argument that 
it fractured the government's presentation of the case. It wasn't 
that the judges' questions were any tougher for the government 
than they had been for the plaintiffs. Nor was it that the 
government attorneys were incompetent. The problem for the 
government was basically in their case itself -- they had to 
defend a statute that's not only of questionable 
constitutionality, but also incoherently drafted. (One section of 
the CDA, for example, seems explicitly to exclude the very 
"interactive computer services" that the drafters of the statute 
aimed to include, and that companies like CompuServe operate.) And 
they were forced to rely heavily on statements about the statute 
made in the Congressional conference-committee report about it -- 
a report whose statements about the relevant legal and 
constitutional principles is itself inconsistent and misleading.

Coppolino first informed the judges that he and his associate, 
Jason Baron would be dividing the issues up much the way Hansen 
and Ennis had, although "I do expect I will cross over a bit." 
Coppolino would deal with the overbreadth and indecency 
challenges, and the basic constitutional issue of whether the 
government can exercise this kind of authority, while the defenses 
for the noncommercial providers will be dealt with by Baron.

Most of the questioning of Coppolino and Baron paralleled the 
questions asked of Hansen and Ennis. Coppolino argued that the 
terms "indecent" and "patently offensive as measured by 
contemporary community standards, sexual or excretory activities 
or organs" are not vague (they've been used by the FCC in a number 
of cases, and the cases tell us what the terms mean), and that the 
two terms in fact mean the same thing. In itself this is a 
reasonable argument -- the term "indecent" has been defined by the 
FCC, if not by Congress or the Supreme Court, to mean "patently 
offensive (etc.)."

Judge Dalzell had a problem with this argument, though: "Doesn't 
the conference report say that these terms are taken from Pacifica 
and Sable?" The problem for the government was that in neither 
Pacifica nor Sable had the Supreme Court adopted the "patently 
offensive" definition of indecency.

Judge Sloviter then asked if the government wanted the court "to 
write into" subsection (a) the "patently offensive" language?

"That's not hard," said Coppolino. The "patently offensive" 
definition does have some grounding in FCC caselaw. 

But what about the requirement that a criminal statute give due 
notice to citizens as to what is prohibited? asked Sloviter. 
Answered Coppolino: the caselaw gives notice as to the meaning of 
the terms. (The legal fiction here is that everyday citizens know 
FCC caselaw, but the fact that this assumption defies common sense 
doesn't in itself hurt Coppolino's argument, since, as we all 
know, ignorance of the law is no excuse.)

Sloviter then asked about the conference-committee report's claim 
that the statute's does not penalize content with social worth: 
"You want us to read the statute to have a built-in exception for 
words of value?" In doing so, she was highlighting a problem with 
the conference-committee report's claims about the CDA -- although 
it states that "indecent" material does not include material of 
artistic, scientific, or political value, the FCC has explicitly 
stated that such value does not prove that material is not 
"indecent" for broadcast purposes.

Hence Coppolino's response: "I don't agree with that 
characterization."

Furthermore, he said, "We have not asked that the term be 
narrowed to pornography." (The conference report says that the 
statute addresses only pornography.) Instead, he said, "We want to 
use it as it has been applied by the courts." In short, Coppolino 
planned to rely more on the FCC caselaw about "indecency" than on 
the conference report. "Our point," he said, "is that it's not 
clearly anything about sex or anything with an expletive." He 
added, however, that indecency "can include pornography. It can 
also including shocking or vulgar textual discussions."

Judge Dalzell questioned whether the FCC's use of the term in 
broadcasting tell us anything about its meaning in the context of 
Internet communications. Isn't there some risk that "indecent" or 
"patently offensive" just mean what a U.S. Attorney somewhere 
decides it means?

Coppolino responded: We cannot provide assurance that a U.S. Atty 
won't take an absurd case. And the tough cases on the margins 
should be left for an "as-applied challenge." (There are two ways 
a statute can be unconstitutional. It can be "facially" 
unconstitutional -- that is, its terms on their face violate 
constitutional guarantees. Or it can be unconstitutional as 
applied by the government, in which case the judiciary can 
prohibit such applications of the law without striking down the 
law altogether.) Coppolino was telling the judges that we could 
rely on the court system to construe the statute so as not to be 
unconstitutional. The problem with his argument here was that the 
statute's very existence has already done reputational damage to 
CompuServe.

Sloviter asked about literary works that might be offensive yet 
still had literary or other value. She asked about Tony Kushner's 
prize-winning play about homosexuality and AIDS, _Angels_in__America_
-- would that be "indecent" on the Internet? She also asked about
Henry Miller's _Tropic_of_Cancer_.

"Unlike the plaintiffs," Coppolino said, "we don't believe that 
'indecency' necessarily includes serious value or necessarily 
excludes material with prurient appeal." (He misstated plaintiff's 
argument here -- Hansen had simply noted that "prurient" appeal is 
not necessary for something to be found "indecent." This is not 
the same as saying that nothing "prurient" is indecent.)

Asked Sloviter: Under the First Amendment and the Due Process 
requirement of notification, what does the statute tell citizens 
about what is forbidden? Coppolino replied: "I can't give you a 
categorical answer about serious value."

Responded Sloviter: If you want the court to construe the statute 
as not prohibiting works of serious value,."[y]ou're asking us to 
be the activist judges that some members of Congress excoriate, 
and to put words into the statute that are not there."

Coppolino argued that indecency and "patently offensive" will be 
judged "in the local community" where the communication is at 
issue, much the way obscenity is. (In doing so, he departed from 
the FCC caselaw, which says that "community" for the purposes of 
defining indecency is a national standard -- it doesn't have the 
same meaning it does in obscenity law, which is grounded in local 
community standards.)

"Isn't that a problem in communications that are available all 
over the United States?" asked Judge Sloviter. The only 
disagreement would be at in marginal cases, asserted Coppolino, 
apparently arguing that there is already a national consensus as 
to what is indecent..

Judge Dalzell then asked about a web site that carried Robert 
Mapplethorpe photographs. Coppolino admitted that "there a few 
hard cases."

Judge Sloviter shot back: There are "lots of hard cases" the court 
could ask about. "But we don't have all day."

Responding to a question about what the CDA added to existing 
provisions in the federal criminal and communications codes, 
Coppolino attempted to address the issue of overbreadth.There is 
only "a very narrow category of speech" that is not obscene but is 
indecent, he asserted. This statute is a solution that aims at 
effectively protecting minors from this type of speech.

At this point, Coppolino seemed to be saying that "indecency" 
simply means "obscene for minors" or "harmful to minors." Judge 
Dalzell had problems with this: "How can we graft a harmful to 
minors statute when Congress specifically rejected it?" he asked, 
referring to alternative language that was proposed by Congressman 
Rick White during the conference committee, but which was 
rejected.

Dalzell also distinguished prior indecency cases from this one. 
Sable Communications, he said, was about commercial dial-a-porn 
vendors -- in that case, the very subject matter was porn. 
Imposing burdens upon that class of speakers is comparatively easy 
to justify constitutionally. But since the Net is available, 
potentially, to everyone: Isn't it an awful burden to make everyone
go to First Amendment lawyers to know what's legal?

Furthermore, asked Dalzell, isn't it true that if the issue were 
merely pornography, not one of the  plaintiffs in the ACLU or ALA 
cases would be reachable under a statute that aimed purely at 
pornography?

Coppolino seemed to agree. He then returned to his argument about 
whether it's appropriate for the plaintiffs to challenge the 
statute on its face. Judge Dalzell would have none of this -- 
plaintiffs might simply be able to prove "substantial overbreadth" 
of the statute he suggested. Dalzell added that the trial has seen 
a lot of evidence that there's a broad class of material available 
on the Net that is not porn but that nonetheless can be penalized.

Coppolino stated further that courts and citizens can be guided in 
understanding indecency by looking at what the FCC has identified 
as indecent in the broadcasting arena. He referred again to the 
committee report language, which says that "indecent" is defined 
"in context" -- which raised two problems for the government. 
First, it is not clear how courts (or anyone else) will interpret 
the "in context" language. Second, it's a problem to have to cite 
the committee report to support your case in one part of your 
argument while having to disavow its statements in other parts of 
your argument.

Dalzell questioned Coppolino about the Pacifica/George Carlin 
case: "tremendous weight," he said, was given in the Pacifica case 
to "the surprise element" inherent in radio programming. Is there 
anything like that degree of "surprise" on the Net, where users 
are making choices about what to see and read? 

Coppolino argued that the Net was like the radio broadcasting in 
Pacifica: "Clearly you've got to compare it [the Net] to 
broadcast," he said. It's "pervasive" because it can be received 
in the home. He noted that when it comes to radio and TV, the 
Supreme Court has established and consistently upheld the "less 
tolerant standard of broadcasting."

And that's when Dalzell hit him with the artfully crafted 
hypothetical about the "Newspaper Decency Act" Would such a 
Newspaper Decency Act, which banned violence above the fold, be 
constitutional?

At first Coppolino misunderstood the question -- he took it be a 
general question about the meaning of "indecency." In reality, 
Dalzell was asking about general federal authority to regulate 
nonobscene content that might be harmful. The Supreme Court, 
despite the attempts by the government and others to misread the 
relevant cases, has never approved of such general content-control 
authority. Prudently, perhaps, Coppolino never answered this 
question directly.

But to me, sitting in the front row, it didn't matter what 
Coppolino's answer was. Dalzell's question, and Sloviter's 
followup questions signaled that they fully understood what was at 
stake in the CDA cases: namely, whether the Net would partake of 
the same freedoms that traditional media like newspapers have, or 
else be subjected to a strict regulatory regime of the sort that 
has turned broadcasting into relatively bland and uninteresting 
fare.

When Coppolino did understand the question (to his credit, it 
didn't take him long), he said that that the Net is more like 
broadcasting because it "comes into the home." Responded Dalzell: 
The _Inquirer_ comes into my home.

Coppolino: A child can't go buy _Playboy_.

Sloviter: But parents can subscribe -- _Playboy_ does, in fact, come 
into many people's homes.

Coppolino attempted to recover. The issue, he said, is links to 
sexually explicit sites on the Web. What about the risks of 
inadvertent exposure? he asked.

That gave Sloviter an opportunity to take over the questioning. 
Suppose there is minimal risk of accidental exposure -- is there a 
compelling government interest (such an interest is 
constitutionally required in legislation like the CDA) if there's 
no inadvertence or surprise? And what if a 14-year-old child 
wanted to see the material and the parents don't care? In her 
questions, Sloviter was raising the issue of how the CDA would 
affect the availability of "indecent" or "patently offensive" 
material if parents approved of their minor child accessing it. The 
point of her questions was that the CDA would have the effect of 
*decreasing* the availability of that material. So the 
government's claim that the CDA somehow "empowers parents" is 
false.

Coppolino returned to his theme of pervasiveness --the Net is 
still closer to broadcasting than to print, he asserted, and so it 
therefore merits the kind of close control that the federal 
government already applies to broadcasting. Sloviter then asked 
whether Henry Miller's classic novel, _Tropic_of_Cancer_, would be 
indecent. Coppolino responded: "This isn't about _Catcher_in_the_Rye_."

Sloviter then commented with some amusement that _Tropic_ is a very 
different sort of book than is _Catcher_.

Sloviter's final question sank any credibility that the conference 
report might have when it came to interpreting the statute. What 
about the committee's claim that there is an "intent to offend" 
element to the crime? she asked.

Responded Coppolino: "That would be a lot to read into the 
statute." In short, he had to bail on one of his own authorities.

The questioning of Tony Coppolino was so devastating to the 
government's case that it took away the breath of most of the 
onlookers in the courtroom. The plaintiffs had undergone tough 
questioning, but the government's case seemed bullet-ridden after 
Coppolino's turn at bat. DOJ attorney Jason Baron tried to recover 
by claiming that the defenses built into the statute rended the 
CDA constitutional, but Judge Dalzell -- seemingly personally 
offended by what had happened to CompuServe in the week -- was 
nothing if not sceptical. "What more could CompuServe have done 
[to protect children] than what it did?" Dalzell asked, after 
noting that the adult material in question had already been 
rendered inaccessible to minors through a number of mechanisms.

Said Baron: "I don't think that's a very good example." Visibly 
angry, Dalzell responded: "Could you answer my question?"

Baron attempted to argue that the Department of Justice may really 
have been concerned about obscene rather than indecent material, 
but he was forced to rely on a letter written after the fact. The 
judges seemed to find his argument unconvincing. Said Baron: "The 
fact is, as we stated in page 632 of our post-hearing brief ... 
The answer to your hypothetical would be, I would expect, that 
there would be an affirmative defense... under the available 
technology."

The problem here was that the government was already on the record 
as saying that use of current technology to screen out nonobscene 
but "indecent" material from minors would, as most, count only as 
evidence of a defense, and not establish a defense in and of 
itself.

Judge Buckwalter had many questions for Baron -- which seemed 
significant, since he had been relatively quiet for much of the 
earlier questioning. But Buckwalter seemed to be troubled that 
there was "no effective way" for a speaker on the Internet to 
guarantee being able to avoid liability.

Argued Baron: "The key to the CDA is the burden on the content 
provider to do something rather than nothing."

Dalzell quickly slamdunked that comment: "But CompuServe *did* 
something." (And yet CompuServe still had to face an 
investigation/review from the FBI.)

Dalzell later read a May 3 letter from the American Reporter case 
assistant AG: "Under present technology, it is the position of the 
department, ... such efforts would constitute substantial evidence 
... under the circumstances."

Further, Dalzell said credit-card identification of minors is a 
non-starter -- it would unfairly burden individuals and non-profit 
groups by requiring them to spend money on the credit services 
that noncommercial Net publishers typically don't have. 
There was a some discussion of one plaintiff's insistence that his 
material needs to be "indecent" in order to interest minors in AIDS
education and safe-sex information. Baron responded by saying that if
such people don't want to engage in self-rating, "the alternative 
would be that PICS would block that site. 

Dalzell: "But that's the parents' decision, not the government's 
decision, wouldn't you admit?"

Baron was at a loss to come up with a good answer to this one.
Judge Sloviter asked about a web site called "Bianca's Smut 
Shack": "How would you block it for Judge Dalzell's ten-year-old, 
but make it available to Judge Dalzell if he wants to see it?" 
Baron seemed to fumble his answer -- perhaps because there is no 
good answer.

Dalzell commented, with some heat: You ridiculed the witness who 
said that all that has to happen is that somebody finds me 
offensive and complains to the Department of Justice. Isn't that 
just exactly what happened with CompuServe?

Although there were a few more questions, Baron's argument was 
effectively over at that point.

In the rebuttal phase, Hansen and Ennis, sensing the possibility 
of a clear victory, strove to give the court the strongest, 
broadest arguments for striking down the statute. Said Hansen: 
Even if filtering technology is constantly improving, "there are 
two things that are enormously troubling". First, he said, the 
nature of the speech being criminalized by the CDA is valuable 
speech, and the statute even applies to libraries -- at three 
separate points, the statute refers to libraries and colleges. The 
second is that required self-labelling is "compelled speech," 
which is also barred by the Constitution.

Ennis summarized his case with "three brief points":

1) Everyone agrees that, regardless of what is available for the 
Web,  there is no technology now, and none in the pipeline, that 
would screen Usenet, mailing lists, and chat rooms.

2) With regard to whether "tagging" content is a defense for 
providers: ."I think it's important to recall that the government 
admitted that tagging is not a defense today." At most it's 
"substantial evidence." even if it's all in place.

3)  Attaching a compelled label to your own speech is something 
the First Amendment bars government from forcing upon you. A court
should never construe a statute in a way that would create a new 
First Amendment problem, Ennis concluded. And Congress had no 
intention of doing so. Congress specifically rejected compelled 
labelling of broadcast when it mandated the so-called V-chip, which 
is intented to enable parents to filter out violent content on TV.

Then Ennis sat down, and the final argument was over.

And I sat there, numb with the sense that we had won, that the 
judges had understood the issues at stake, that the government's 
defense of the CDA had been destroyed. Now, it's true that many 
lawyers and law professors will tell you that you can't predict 
the outcome of a case from an oral argument. But it was hard to 
sit there in that windowless Philadelphia courtroom and not be 
morally certain that, on one or more grounds, the singularly 
offensive and unconstitutional Communications Decency Act would be 
struck down. 

It was a good to day to be a lawyer. And a good day to renew one's 
faith in the law.