The DoJ's cheesy, flimsy, flawed defense
By Declan McCullagh (declan@well.com)

   http://pathfinder.com/Netly/daily/960513.html
   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
   corporation.
   
      "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