CDA Dispatch #10: Last Day in Court

Rohit Khare (
Wed, 15 May 96 12:44:19 -0400

Date: Tues, 14 May 96 01:23:49
From: SMTP%"declan+@CMU.EDU" ""Declan B. McCullagh""

Fight-Censorship Dispatch #10
The CDA Challenge: Last Day in Court
By Declan McCullagh / / Redistribute freely

In this dispatch: The DoJ's flimsy, cheesy, flawed defense
Judges question DoJ investigation of CompuServe
"The Newspaper Decency Act"

The Netly News
May 13, 1996

PHILADELPHIA -- Anyone want to bet on the outcome of the
Communications Decency Act? I attended the whole thing, which ended
Friday in a Philadelphia federal court, and here's the McCullagh
Morning Line:

3:1 that the CDA gets struck down as unconstitutional.

It can't possibly be upheld -- not from what I understand about the
First Amendment, not from what I heard of the flimsy, cheesy Justice
Department case (and I heard the whole flimsy, cheesy defense) and
certainly not from how the judges were acting on the last day of the
hearing. Members of the three-judge panel practically laughed in
exasperation at Justice Department wafflings.

As you probably recall, The American Civil Liberties Union and
American Library Association coalition challenged the so-called
Decency Act on the grounds that it would unconstitutionally chill free
speech online. The CDA would criminalize "indecent" speech on the Net,
invoking a standard -- indecency -- that's yet to be defined.

Not for lack of trying, of course. DoJ attorney Tony Coppolino
danced a nimble flamenco around the legal meaning of "indecency" and
what may or may not be prosecuted under the CDA, arguing on Friday
that indecency is a "medium-dependent standard." That is, he said, it
can be read to apply mostly to hardcore porn, not literature, and
would leave most Web-based jottings alone. But he admitted: "We can't
provide assurance that a prosecutor won't take on an absurd case."

Dolores Sloviter, chief judge of the Third Circuit Court of
Appeals, jumped down his throat: "I've been taking the position for 17
years that people should know what they can be prosecuted for. Doesn't
that present a problem?" she asked. "I still don't understand" what
indecency means under the CDA, she said.

"We've been trying to get at this for 40 minutes," grumbled Judge
Stewart Dalzell.

Later Dalzell grilled DoJ attorney Jason Baron over the Justice
Department's decision to "review" a complaint lodged by the American
Family Association against CompuServe's new adults-only service. (The
AFA is the most virulent "family values" group involved in the fight
over the CDA. Only a week after the law was passed, the AFA said it
didn't go far enough.)

Dalzell stressed that CompuServe had employed every blocking and
parental control mechanism possible under current technology -- but
that didn't stop the FBI from investigating the Columbus, Ohio-based

"What more could CompuServe have done?" Dalzell asked.

Baron cavilled. "The Justice Department was concerned this may be
obscenity," he claims. The distinction between obscenity, which is
illegal, and indecency, which is still undefined, is important, and
that was a nice try by Baron. Unfortunately for him, the CompuServe
forum in question has only Playboy-style centerfolds -- softcore stuff
that the DoJ's own attorney Coppolino admitted earlier is not obscene.

Clearly, the Government had no business looking into the CompuServe
matter. Indeed, outside the courtroom at the end of the day, the ALA's
Bruce Ennis charged that the government violated a restraining order
barring them from investigating alleged CDA violations. "We were very
upset. We think this violated the court order," said Ennis. "We went
to court yesterday and asked for a clarification. That's now pending."

The only defense against prosecution and conviction that the
government offered was requiring credit cards before providing access
to "indecent" speech on web sites -- a solution that Baron admitted
isn't exactly practical for individual speakers.

When Baron trotted out Dan Olsen's -L18 self-tagging scheme as an
alternative, even the normally quiescent Judge Ronald Buckwalter
noticed: "It's not available now. It's a hypothetical." Judge Sloviter
added it was "the product of Mr. Olsen's creative imagination."

In final arguments, Chris Hansen from the ACLU said not only would
a requirement for -L18-style self-labelling "violate the prohibition
against compelled speech," there is no tagging technology "that
applies to Usenet newsgroups and mailing lists."

The most unusual sideshows of the last day of the hearing was when
government attorneys were forced to defend free speech in print.

Would a "Newspaper Decency Act" banning violence on the top of the
front page be constitutional? asked Judge Dalzell, waving a copy of
the Philadelphia Inquirer with a photograph of a Liberian prisoner
being executed. "My ten-year old son is a rabid Phillies fan" and came
across this image, he said. (We must confess to missing the logic
here: Are Phillies fans particularly sensitive to violence?)

"The print medium enjoys the greatest protections -- the Internet
is becoming more television-like," replied Coppolino, trying to dodge
the question.

The Philadelphia court is expected to issue a decision by mid-June.
Both the plaintiffs and the Department of Justice have said they will
appeal to the Supreme Court, which may decide to hear the case after
it reconvenes in early October. Assuming the Justice Department loses,
will they really appeal to the Supreme Court? If so, I object to my
tax money being wasted on this crap.

--By Declan McCullagh


Mentioned in this article:

DoJ refers American Family Association's CDA complaint to the FBI:
AFA "charges" CompuServe with violating the CDA:
FBI finally rebuffs the AFA, when pressed:
Excerpts from DoJ and anti-porn groups' CDA briefs:
Transcript of Olsen's "-L18" description and other testimony:
Mike Godwin on indecency vs. obscenity:

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