May It Please The Court... (3/21/97)
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May It Please The Court...
By Charles Bierbauer/CNN
WASHINGTON (March 21) -- The Supreme Court of the United States ventured into cyberspace this week, even though it has yet to advance to the mundane age of television.
The Court heard arguments for and against the Communications Decency Act which seeks to make it a criminal offense to post indecent material where children might see it on the Internet.
The Justice Department, arguing for the law passed by Congress last year, contended that without it children would have the equivalent of a "free pass to every adult bookstore and video store."
The American Civil Liberties Union, arguing against the law which has been blocked by a Pennsylvania court, contended the court should not and has not in the past "limited adults to speech suitable for children." This is not an issue of pornography -- that's banned -- but material described as "patently offensive" which some people still can't resist.
The debate over First Amendment rights to freedom of speech was great television. At least, it would have been. The Supreme Court is the last bastion of government refusing to open its proceedings to cameras.
Congress has now televised its proceedings for years. The Internal Revenue Service took CNN cameras on a tour last week. The CIA permits a camera now and then. Is there any day President Bill Clinton is not on television?
But the Supremes?
"The day you see a camera coming into our courtroom, it's going to roll over my dead body," Justice David Souter told a House subcommittee last year. Souter repeated his anti-camera feelings before the subcommittee last week, but in a less catchy sound bite.
Souter feels the presence of television cameras in the courtroom would affect his performance, change the way he phrases his questions. He would be mindful of becoming the sound bite on the six o'clock news. Cameras were permitted in the New Hampshire State Supreme Court when Souter served there.
Objection sustained.
While the issue may be debated outside its hallowed halls, it is not inside. The nine justices have taken the position that if there is one among them who does not want it, they're not going to do it.
It's a shame.
Though I've been in Washington 16 years, I paid my first visit to the Court's chambers this week for the arguments over smut in cyberspace.
Since I could take along neither camera nor tape recorder, here's what you missed:
The chamber itself is suitably impressive without being overly elaborate. Squarish. Ionic columns on each side. Burgundy curtains trimmed in gold. A frieze running around the perimeter of the upper wall depicts the lawgivers of the ages.
Mohammed was somewhere over my head where I could not see his likeness. Muslims would rather no one did. They've asked the justices to have Mohammed removed from the frieze in keeping with the Islamic practice prohibiting such images. The justices turned down the request. They may not allow TV cameras to record their own images, but Mohammed's will have to linger.
But this is all backdrop to the black-garbed gang of nine. They are the show.
What makes this fascinating -- I hesitate to say entertaining -- is the fast-paced interplay between the justices and the attorneys arguing their cases.
Justice Stephen Breyer: "What if high school students want to talk about their sexual experiences, real or imagined? That's not unknown in high school."
Deputy Solicitor General Seth Waxman: "I'm shocked, shocked..."
Justice Breyer: "Would it make high school students guilty?"
Waxman: "If found offensive, yes."
Justice Antonin Scalia: "What, no high school exemption!"
The courtroom rippled with amusement. No laugh track needed. Scalia would most likely be the star of Supreme Court TV. That may be why, though he brings humor to his aggressive questioning, he would not want to stand out from a group whose most flamboyant touches are Justice Ginsberg's and Justice O'Connor's white collars over their black robes. And Scalia's dark beard.
Other cases might lose viewers in legal arcana and intricacies. But the justices showed they were hip to the latest technology and jargon. They readily tossed out questions about V-chips, CGI script, adult IDs, tagging. All except Justice Clarence Thomas, whose confirmation hearings were tinged with accusations of sexual harassment and pornographic tastes. Thomas, as usual, said nothing.
What the justices must decide also bears weight on all citizens, including themselves.
Justice Scalia (who has nine children): "If I had to be present every time my 16-year-old is on the Internet, I would know less about this case than I do today."
Bruce Ennis, arguing against the law on behalf of the ACLU and others, said that as a parent he clicks on the box in software menus that allows parents themselves to block out portions of the Web they find personally offensive.
Ennis: "Under this law, there is no parental choice. The government decides what is appropriate."
Waxman: "This court could exempt parents."
Justice Anthony Kennedy: "Does the government have an interest in protecting children who do not have parents available?"
And just how far should government reach in regulating individual speech? Is the Internet an extension of the telephone? Is a conversation in a chat room like a conversation on a public street?
Justice Kennedy: "Is the Internet not a public forum?"
Waxman: "We don't think it is a public forum."
Alas, neither is the Supreme Court. Not public enough. The old argument that nine people who are given lifetime job security and at least $164,000 taxpayer dollars a year in salary really ought to be a little more responsive is dismissed faster than a Perry Mason case. Court officials don't see that changing with the current corps of justices.
Yet even in the deliberation, there might have been a virtual glimmer of hope for the future.
Justice Scalia: "I throw my computer out every five years...Is it possible that the law is unconstitutional today, but that it will be constitutional next week or in two years?"
Is it possible that the Supreme Court will find it within their constitution to let Americans in on the way the law is judged? C-SPAN might find it a ratings grabber. And the justices might find they can still go to the supermarket without being accosted by autograph hounds.