By Steven Levy (NEWSWEEK -- MARCH 31, 1997)
One knew what to expect when the Supreme Court took its first shot at the new world of cyberspace last Wednesday, hearing arguments in a case that may well set parameters for free speech in the next century. But almost everyone agreed on one thing -- the Supremes, at the average age of 62, would be aliens to the world of geekdom. "The one prediction I felt safe in making was that the phrase 'CGI script' would never come up", says the ACLU's lead attorney, Chris Hansen, referring to an arcane software protocol that potentially gives Web sites a way to screen users to see if they are adults.
So what was the first question posed by Justice Sandra Day O'Connor to Deputy Solicitor General Seth Waxman, less than three minutes into the historic session?, "Mr. Waxman, does that technology require use of something called CGI?"
Subsequent queries indicated that none of the justices will soon be applying for jobs as Java programmers. But clearly, the nation's highest court had done some homework for these arguments concerning the constitutionality of the Communications Decency Act (CDA). This amendment to last year's massive telecommunications bill, depending on how you look at it, either put a brown-shirted gag order on the burgeoning public square called the internet, or it protected children from an orgy of unspeakable images invading their schools, libraries and bedrooms. In Philadelphia last June, a three-judge panel struck down the law, ruling that its criminal penalties for making "indecent" speech available to minors would indeed chill all discourse in the medium that will dominate the next century. They basically agreed with the CDA critics who claimed that the law would ban not only porn but all sorts of more benign or socially redeeming speech, such as an artist's expression, safe-sex discussions or just plain bad taste. Anticipation of a landmark decision came as soon as the Supreme Court agreed to handle the government's appeal, and for weeks every commentator who can spell "modem" has been counting down to last week's oral arguments as the definitive showdown in the history of the future.
Wednesday's action-packed session showed that the justices recognized the gravity of the matter. In an extremely unusual gesture, Chief Justice William Rehnquist, with no warning, granted each side an extra five minutes of argument. At one point Justice Antonin Scalia came out and said, "I don't know if we've ever adjudicated [a case] like this ..." Certainly this was their first case where amicus briefs were filed on a CD-ROM disc.
Technology aside, though, the issue boils down to a balancing act. Here is the nub: in cyberspace, the most democratic of mediums, should priority be given to allowing adults to exercise their constitutional right to speech? Or, as the CDA dictates, should they have to curb their expression -- even certain constitutionally protected speech with redeeming social value like sex education, highfalutin nude art and George Carlin comedy routines -- so that Net-surfing children will not be exposed to so-called patently offensive content?
Waxman, arguing for the CDA, warned, "The Internet threatens to give every child with access to a connected computer a free pass into the equivalent of every adult bookstore and video store in the country." But because a strict interpretation of the CDA means that a foulmouthed outburst in a chat room could potentially result in a two-year jail sentence, his argument to the court was basically "Let's Make a Deal," offering the justices a chance to slice and dice the law until they thought it could coexist with the Bill of Rights.
So when Justice David Souter asked if the CDA would throw parents in the hoosegow if they passed salacious e-mail on to their 17-year-olds in college, Waxman admitted that it would, but invited the justices to make a parental exemption. "That would be grabbing a limitation out of thin air," said Souter. Justice Stephen Breyer wondered if a group of high-school kids in a chat room dishing about their sexual experiences -- "That's been known to happen," he noted dryly -- would also face two years in the pokey. "It may," admitted Waxman. "There's no high-school exemption?" asked Justice Scalia in mock surprise.
Ever flustered, Waxman would revert to apocalyptic language about youth defiled by dirty pictures. In contrast Bruce Ennis, arguing against the CDA for a host of plaintiffs including the American Library Association, the ACLU and a Web site offering safe-sex information to young people, kept emphasizing how the CDA's blunt restrictions would chill constitutionally protected speech. In some of their questions, the justices showed that their subscriptions to Wired might have lapsed. Chief Justice Rehnquist had to ask the difference between a "commercial" speaker on the World Wide Web (who sells content) and the 40 million non-commercial speakers who, according to Ennis, express themselves not only via the Web but in newsgroups, mailing lists and chat. The fact that these speakers instantly reach a massive potential audience is what distinguishes the Internet from previous media like the telephone, the printing press and radio. So Justice Scalia's question "What's wrong with saying, well, if you want to use cyberspace, you have to use the Web?" misses the whole point of the Internet - it empowers everyone to reach an instant audience, not just those who spring a few thousand bucks for a Web site. "The Internet isn't like any of those previous media," Ennis later told NEWSWEEK, "and that concept is hard to get across."
To its credit, the court at least recognized the difficulty of dealing with this strange new world. "It was a heck of a lot better argument than we had in Congress," says Rep. Rick White, referring to the absence of hearings before both houses passed the CDA.
The judges, though, seemed frustrated that, in a sense, they were trying to address a moving target -- was it possible that emerging technologies in screening content or verifying a Net user's age might change the debate? "I throw away my computer every five years," said justice Scalia. "Is it possible that this statute is unconstitutional today ... but will be constitutional next week?" Ennis said no, but clearly there was a hope that this 21st century conundrum would be solved by some quick techno-fix. Forget it -- both sides claimed that their respective arguments were bolstered by emerging tools that prevent kids from one-button access to stuff like ax-sex. Waxman likes the idea of a privately run ID system where adults register for a password that lets them see potentially indecent stuff. Ennis believes in parent-installed software that blocks out nasty sites. But there are problems m all these schemes.
Opinions differ on what the court's eventual decision might be. CDA proponent Donna Rice Hughes, of the anti-porn group Enough Is Enough, thinks, "The court will give a clear win on indecency, and send the matter back to the lower courts for more fact-finding." Anti-CDA activists like the Center for Democracy and Technology's Jerry Berman hope that the CDA might bite the dust. "They recognized it was a new medium, and that's half the battle," Berman says. And Representative White, who argued for a less sweeping law, says, "My guess is that [the court] will strike down the statute and give us some guidance."
Meanwhile, the Internet itself quietly kept proving that it was different from all that has come before. Within hours after the arguments, a full transcript was posted on a Web site. A press conference immediately afterward was "cybercast" to the world. But the Supreme Court session itself, of course, was not cybercast, which may be for the best. In a recent speech, Sen. Patrick Leahy noted that the friezes decorating the grand courtroom depict "frontally nude children and bare-breasted women" -- just the kind of stuff that can get you jailed under the Communications Decency Act.
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