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Free Speech On The Net At The Supreme Court

Some surprisingly wired Justices hear an antiporn case that would restrict free speech in cyberspace

By Joshua Quittner

(TIME, March 31) -- Deputy Solicitor General Seth P. Waxman went before the U.S. Supreme Court last week to praise the Communications Decency Act, not to bury it. That was his first mistake.

The CDA, as it is known by everyone who has followed its tortured history, is the controversial antiporn bill passed by Congress and signed into law last year by President Bill Clinton. The act makes it a federal crime to put online, where children might see it, not just the obscene or the pornographic but any "indecent" word or image--a prohibition so vague that it might criminalize an AIDS-awareness lesson. Proponents argue that without such strictures, any child cruising the Net would have, as Waxman told the court, "a free pass into the equivalent of every adult bookstore and video store in the country."

That may have been his second mistake. The government's lead counsel got exactly 201 words into his argument when the first Justice cut in, asking for a citation. Waxman recovered, mustered an additional 111 words about how it's technologically feasible for Websites to screen users by age, when Justice Sandra Day O'Connor interrupted. "Does that technology require use of something called CGI?" she asked, referring to a complex protocol for changing what users see on a Web page. "It does," agreed Waxman, thereby opening the door to a line of argument in which he found himself suggesting--apparently in all seriousness--that U.S. citizens might have to purchase a government-issued, Maxwell Smart-like "cone of silence" before making a speech in a public park.

And so it went for an extraordinary 70 minutes that showed not just how wired this bench has become but also how important a test of constitutional principles it believes this case to be. The CDA, once feared and reviled by civil libertarians, is now seen as so flawed ("dead meat" is how Wired News described it last week) that its opponents are eagerly looking forward to a ruling. A clear judgment against it by the Supreme Court could end up extending First Amendment protection for all media into the 21st century. It could also help douse anti-Net brush fires that have sprung up at state and county levels in the months since the bill was signed.

That isn't to say that Bruce Ennis, lead counsel for a coalition of 20 plaintiffs that included the American Civil Liberties Union and the American Library Association, didn't suffer his share of interruptions. The Justices were particularly unimpressed by his argument that the law was worthless because it could not stop naughty bits from flowing to the U.S. from overseas. But at least Ennis managed to do something Waxman never did: forcibly state his case. "For 40 years," he said, "this court has repeatedly and unanimously ruled that government cannot constitutionally reduce the adult population to reading and viewing only what is appropriate for children. That is what this law does." The court did not argue with that.

Clearly, the judges had done their homework. The most-wired-Justice award went to Antonin Scalia, who pointed out that technology is changing so rapidly that what's unconstitutional today might be constitutional next week. Said Scalia: "I throw away my computer every five years." At another point, when Ennis was arguing that parents should chaperone their kids online, Scalia cracked, "If I had to be present whenever my 16-year-old is on the Internet, I would know less about this case than I know today."

Of course, whether it's good or bad for the A.C.L.U. that some Justices know a Website from a legal cite probably won't be known for months. The Justices will rule sometime before the court's summer recess--usually by July 4. Meantime, in the absence of any clear constitutional law in cyberspace, at least 17 states have passed or are considering their own legislation to regulate the Net. New York enacted a law last year that resembles the CDA. In Virginia it's now illegal for state employees--including state-college professors--to access "sexually explicit" materials online. That law might prevent English professors from running an online discussion of Lady Chatterley's Lover. In Georgia it's a crime for people to communicate anonymously over the Net, which could come as a surprise to 8 million America Online users, most of whom use pseudonyms.

And here's more bad news for Georgians: if the Supreme Court finds the CDA is indeed unconstitutional, the ruling would not automatically void those state laws, says Ann Beeson, a national staff attorney for the A.C.L.U. It would, however, make it easier for the courts to strike down local statutes. "Unfortunately," says Beeson, "state legislatures pass unconstitutional laws all the time, and you still have to go to court to fight them."

Of course, the U.S. Congress also has a history of passing unconstitutional laws, and several conservative legislators have already promised that if the Supreme Court rules against this law, they will try again with a more carefully crafted "Son of CDA." "Some way, somehow," says Republican Senator Charles Grassley of Iowa, a fierce supporter of the CDA, "we will have to find a constitutional way of protecting kids from porn."

--Reported by Noah Robischon/Washington

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