Supreme Court Hears Arguments On Communications Decency Act
By Jonathan T. Cain
On March 19, the Supreme Court heard arguments on the constitutionality of the Communications Decency Act of 1996. In its appeal of a lower court decision, which held that the CDA violated the First and Fifth amendments, the Department of Justice backed away from its earlier claims that the censorship required under the CDA could be implemented without undue burden and expense by using automated age-verification procedures.
The government argued to the Supreme Court that it may criminalize "indecent" speech on the Internet just as it regulates "indecent" radio broadcasts or prevents the sale of obscene materials to minors. A coalition of plaintiffs, including the American Library Association, American Civil Liberties Union and Electronic Frontier Foundation, which successfully challenged the CDA in a federal district court in Philadelphia last summer, referred to many of the lower court's factual findings to resist the government's arguments.
Last summer, a panel of three judges heard five days of testimony from government and other experts about the function and operation of the Internet. Based on that testimony, the judges concluded that the CDA was an unconstitutional prior restraint on the content of communications among adults on the Internet. The lower court prohibited the government from enforcing the law. In September, the Justice Department appealed the lower court's decision directly to the Supreme Court.
The Supreme Court has consistently held that the government may not, under the guise of protecting children, make criminals of those who engage in constitutionally protected speech.
As the court put it 40 years ago, "Quarantining the general public against [speech] not too rugged for grown men and women in order to shield juvenile innocence ... is to burn the house to roast the pig."
Yet, say the challengers, that is precisely what the CDA does. The CDA criminalizes all speech that might be viewed as "indecent" or "patently offensive as measured by contemporary community standards" in the hands of children, regardless of the value of the speech.
The lower court also found that most Internet users can only comply with the CDA by self-censoring all their communications to a level acceptable for children.
The challengers argued that the ill-defined sweep of the CDA renders it unconstitutionally overbroad. Even the government admitted that "there may be borderline cases in which it is difficult to determine on which side of the line particular material falls." If speakers chose to converse as adults, or merely guessed wrong about the applicable community standards, they would face substantial prison sentences. For this reason, the Supreme Court has never upheld a criminal ban on indecent (as opposed to obscene) speech.
In the trial court, the government conceded the CDA was content-based regulation and was therefore unconstitutional unless it was narrowly tailored to accomplish a compelling government interest.
In an effort to demonstrate that the CDA was suitably narrow, it tried to prove that a number of techniques offered protection to minors required by the CDA without burdening adults. The lower court was
unpersuaded and ruled that no technology exists that would apply to newsgroups or using chat rooms, for example, to screen for age.
The lower court also said there was no technology available that would enable age verification by content providers such as America Online, and that identifying age through credit card verification is completely unavailable for those speaking on the Internet because they do not charge for access to their speech - and do not want to.
The government abandoned most of its technology and verification testing arguments for the Supreme Court, as well as suggestions that "future technology" will solve the problem, contending that speakers could avoid criminal prosecution by confining their conversation "to a Web site that is screened for age." That suggestion runs afoul of other First Amendment law, which protects where speech takes place, in addition to its content.
The government also told the Supreme Court that "unless steps are taken to restrict the availability of such [indecent] material to children, parents ... may be deterred from bringing the Internet into their homes at all." The facts to support this new argument were not made clear.
There was no evidence produced by the government during the trial in Philadelphia that indecent material has slowed the growth of Internet use or that, for example, families have been staying away from libraries or refusing to purchase television sets because "indecent" material is available from either source.
A unique development in the appeal is the filing of an amicus curiae brief by the American Association of University Professors in HTML on a CD-ROM, as well as in the required paper format. The electronic version contains numerous links to URLs of Web page excerpts referred to in the brief. A copy of the electronic version of the brief is available at http://www.shsl.com/internet/
Jonathan T. Cain chairs the Technology Practice Group of Mays & Valentine LLP, McLean, Va. His e-mail address is email@example.com.
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