We thought we'd give you a flavor of the argument at the Supreme Court Wednesday, on the CDA. Two of your three professors were there. Here's a brief account -- and keep in mind: the Supreme Court does not allow visitors to take notes at the argument, so there may be some errors or omissions in what follows due to our faulty memories.
The Government's Argument:
Two lessons ago, we sketched for you what we believed was the government's strongest case. This was the zoning argument -- that the CDA simply attempted to zone porn in cyberspace to a place where kids couldn't get access. On Wednesday, however, the government apparently forgot that argument. The case was argued not by the Solicitor General (Walter Dellinger), but by one of his primary deputies, Seth Waxman.
Waxman gave the weakest argument imaginable. He began with something about the threat that indecency presented on the Internet. On this issue (for those who believe that this is the problem) he was ok. The Internet threatens, he argued, to make ineffective all the real space regulation of indecency, because in cyberspace, as it is just now, any kid can get access to an unlimited amount of pornography.
But then, rather than shifting into the zoning argument, mysteriously, Waxman began to talk about the weakest part of his case: the definition of indecency. His claim was essentially this: That it would be only a minor burden for publishers to screen out indecency.
That was ok as far as it went, but Waxman gave as his first real space example the example of a library. The Carnegie Library. In the court below, the Carnegie Library said that they were concerned because they wanted to put their catalog on the Web. But parts of their catalog might be considered indecent, and hence the library would face the threat of punishment unless it could find a way to exclude the indecent material from the online catalog.
Bizarrely, Waxman offered this to the Justices, as an example of how the burden of the CDA would not be too great. Said Waxman: it wouldn't take a very sophisticated software program to find the indecent card catalog entries, and exclude them. That may be right, but it set an extremely weird tone for the rest of the argument. In fact, we don't ordinarily think about libraries segregating material based on whether the material is indecent. And this first weird example seemed to procreate and simply inspire more weird examples.
Justice Breyer asked whether Congress could declare indecent telephone conversations between high school students criminal. Imagine, Breyer said, high school students discussing their sexual exploits. ("This has been known to happen," Breyer joked.) Could Congress make that speech criminal? Waxman didn't have a clear answer. That resulted in the Justices proposing even more extreme examples for the government attorney's consideration: What if a parent made indecent material available to his or her child? Would that be a criminal offense? Again, Waxman had no clear answer. Sometimes that would be child abuse, Waxman said, but if the Court didn't think Congress could regulate such speech, then it could narrow the statute (that is, the Court could read it in a narrow way) so it would not cover cases such as this.
In the end, Waxman's mistake was to make the statute seem like a kind of regulation we haven't seen before. The Justices were already unsure about just what the Internet is. Waxman made them even more unsure about the legitimacy of regulating it, given how weird and different this regulation seemed. Rather than make the Justices feel that this was just real space regulation applied in cyberspace, he made the Justices feel that this was a kind of invasiveness and censorship that real space regulation has never seen. He failed, in our minds, to make the case for the CDA plausible, let alone convincing. And we doubt whether more than three justices accepted his argument.
The Plaintiffs' Argument:
Bruce Ennis argued the case for the plaintiffs (the ACLU, the American Library Association, and the other organizations and individuals who had challenged the constitutionality of the CDA). He first responded to the government's argument that information providers can simply implement "adult verification" devices so as to comply with the statute. Ennis pointed out that while that might be true for some (though not all) *Web sites*, the Web is only a small part of "cyberspace."
Newsgroups, chat rooms, listservers and the like, Ennis argued, are where most of the conversation on the Internet actually takes place, and in those forums it is simply impossible for anyone to know whether he or she is "making available" indecent information to someone under the age of 18. As a result, the only way to comply with the statute in those contexts is to refrain entirely from communicating about "indecent" subjects. But that, of course, sweeps too broadly -- adults have a constitutionally protected right to such communication, and the statute would thus "chill" protected speech. It was an effective rebuttal to a significant portion of the government's presentation.
[During this colloquy, Justice Scalia asked a question to the effect: "Why can't we just channel all communication on the Internet onto the World Wide Web?" One can never be sure that Justice Scalia is not just playing devil's advocate when he asks outrageous questions like this, but we noticed that several of America Online's lawyers visibly blanched at the suggestion that they simply fold up their tent and go away!]
And even for the Web, Ennis argued that adult verification schemes are "prohibitively expensive." There was some skepticism on the part of some Justices (especially Scalia and Rehnquist) about this, but Ennis vigorously pressed the points that (a) for many Web sites (e.g., those hosted by commercial online service providers like America Online or Compuserve) the verification schemes relying on the use of CGI scripts cannot now be utilized, and (b) that other Web sites being used for non-commercial purposes would find such schemes financially burdensome in the extreme.
Ennis also spent some time following up some of the hypotheticals that the Justices had been developing during the government's presentation. In particular, he pointed out that not only, as Justice Breyer had suggested, would a parent be *criminally* liable under the CDA if the parent were viewing "indecent" material with his or her 17 year old child looking on, but also that an e-mail from parent to child discussing, say, safe sex techniques might similarly subject the parent to criminal prosecution.
Ennis also tried -- somewhat less successfully, we think -- to suggest that the statute would simply be ineffective at controlling the exposure of minors to indecent material, because of the large amount of material available on the Internet from foreign sources. Again, Justices Rehnquist and Scalia found this unpersuasive -- so we can only shut down 50% of the dirty bookstores, Scalia asked, does that make the statute unconstitutional?
Finally, Ennis returned to the major theme developed in the briefs: that there are "less restrictive alternatives" to accomplishing the government's goals here than by implementing the CDA, namely the parental control filters that already are in place on the major online services or those available from such providers as SurfWatch, Net Nanny, and the like. What, one of the Justices asked, about children who might not be supervised by parents at all? Doesn't the statute help to protect those children from this material in a way that no other form of protection can? Perhaps, Ennis conceded -- but the cost to society is simply too high to permit the government to proceed in this manner.
************************* So there it is. In our view, the Justices appeared to be sympathetic to the plaintiffs' arguments attacking the CDA, with perhaps 2 or 3 exceptions -- but handicapping the Supreme Court from the conduct of the Justices at oral argument is a notoriously difficult task (as is said regarding the weather in many places -- "only fools and newcomers try to predict"), and we'll all just have to wait until the opinion is released (some time before the July Court recess) to see where they really stand.
So, our final view on the CDA is this: the government had two very difficult hurdles to overcome. It had to show that the statute could be narrowed to properly regulated speech. And it had to show that the burden of its zoning provisions for that properly regulated speech were not too severe. As we have explained, if it had done the first, at least one of us believes it could have done the second. But none of us believe the government came close to doing the first. We all believe the statute is, and will be, held to be unconstitutional.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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