Subject: ACTION ALERT: Light up the Web with CDA Case Result Buttons

June 5, 1996

Redistribute (intact, please) only until June 28, 1996

Table of contents

The fate of the Internet and the future of the First Amendment in the information age hang in the balance. As early as this week, three federal judges in Philadelphia are poised to issue a ruling in the law suit challenging the Communications Decency Act (CDA), which restricts constitutionally protected speech on the Internet.

Will the court rule that the CDA is unconstitutional? That the Internet is a unique communications technology that deserves the same First Amendment protections enjoyed by the print media? Or will the court side with Senator Exon, conservative "pro-family" groups, and the Justice Department who have argued that the government is the best judge of what material is appropriate online.

Regardless of the outcome, the decision will have a profound impact on the future of the Internet as a medium for free expression, education, and commerce.

JOIN TENS OF THOUSANDS OF YOUR FELLOW NETIZENS IN ANNOUNCING THE DECISION

When the Communications Decency Act was signed into law by President Clinton on February 8, 1996, the World Wide Web went black in protest. When the decision in the historic legal challenge to the CDA is announced, join tens of thousands of your fellow netizens in spreading the word on the decision and its impact.

This campaign follows in the steps of the Turn the Web Black campaign, which was a tremendous success. Believe it or not, many Internet users had only superficial knowledge about the proposed law and the enormous press coverage and online awareness afterwards mobilized large numbers of people.

In addition to the online campaign, there are currently rallies planned for New York, press conferences from the CIEC and the ACLU, and a net campaign to raise awareness to the decision and the effects it will have on free speech.

The result of the first CDA decision is an extremely important milestone in the fight for free speech online. Will the net look more like print, or more like Saturday morning television?

INSTRUCTIONS ON HOW TO PARTICIPATE:

In anticipation of the decision, you can help keep your fellow Netizens informed on the latest news and participate in a dramatic demonstration when the decision is announced.

1. Add the following link TODAY in a prominent location on your web site:

alt="Free speech court decision" align=top>

A decision is near in the fight to overturn the Communications Decency Act. Watch this image and follow the link for more information.

2. To let us know you have joined us, fill out the form at http://www.vtw.org/speech/ with your URL. A list of those participating will be displayed.

3. Attend the online press conference with lead CIEC (Citizens Internet Empowerment Coalition) attorney Bruce Ennis on HotWired. More details are available on the WWW page.

HOW WILL THIS CAMPAIGN WORK?

After you have added the link (above) to your page, an animated image signifying that a decision in the case is expected soon will be displayed on your site. By clicking on that image, visitors to your page can jump to a site containing the latest news and information on the case.

As soon as a decision is announced, the image will be changed automatically (the update will happen at our server - you will not have to do anything), and Netizens throughout the entire global Internet will immediately be aware of the result (win or lose).

By clicking on the updated image, visitors to your page will be able to obtain the text of the decision, analysis, and other relevant information.

Until the decision is announced, there will be information about upcoming events and rallies on the VTW Free Speech page, http://www.vtw.org/speech/

PRESS INFORMATION ON THIS EVENT

For more information on this event, including press inquiries, please contact:

Jonah Seiger, Policy Analyst, Center For Democracy and Technology (CDT) <jseiger@cdt.org> +1.202.637.9800

Shabbir Safdar, Online Representative, Voters Telecommunications Watch (VTW) <shabbir@vtw.org> +1.718.596.2851

BACKGROUND: WHAT IS THE CDA?

The Communications Decency Act was passed as part of the Telecommunications Reform bill in February 1996. The law seeks to protect minors from objectionable or sexually explicit material on the Internet by imposing stiff criminal penalties on the "display" of "indecent" or "patently offensive" material online.

Opponents to the new law argue that while well intentioned, the CDA fails to account for the unique nature of the Internet, and that it will have a far-reaching chilling effect on constitutionally protected speech online. On a global, decentralized communications medium like the Internet, the only effective and constitutional means of controlling access to objectionable material is to rely on users and parents, not the government, to decide what material is or is not appropriate.

Two lawsuits have been filed to challenge the constitutionality of the CDA in a Philadelphia federal court. The cases have been consolidated and an decision is expected in early June 1996.

The cases have been brought, respectively, by The Citizens Internet Empowerment Coalition (CIEC), comprised of civil Liberties groups, libraries, Internet Service Providers, Commercial Online Service Providers, Newspaper, Magazine and Book Publishers, and over 45,000 individual internet users, and a coalition of civil liberties groups, authors, and others organized by the ACLU.

Detailed information on the legal challenges, as well as information about the CDA, is available at the following web sites:

Legal Challenges To The CDA

Background Information On The CDA/Internet Censorship Issues

From: mnemonic@eff.org (Mike Godwin) Subject: What the Final Arguments Tell Us About The Fate of the CDA

by Mike Godwin, EFF Staff Counsel

I was sitting there in the Philadelphia courtroom, typing quietly away at my notes, when, suddenly, I had to look up, stop typing, and just watch what was happening. It wasn't merely the pointedness of the questions Judge Stewart Dalzell was asking government attorney Tony Coppolino -- Dalzell had already established himself that day as the most aggressive questioner of the three-judge panel reviewing the constitutionality of the Communications Decency Act.

No, it was the content of the questions. Holding a copy of the Philadelphia Inquirer in his hand, and indicating an above-the- fold, page-one photo of the battlefield execution of a soldier in, I think, Bosnia, Judge Dalzell questioned Coppolino as to a hypothetical "Newspaper Decency Act." Suppose that Congress is worried about the dangers to children posed by violent newspaper images, Dalzell said. And suppose that Congress, recognizing that it couldn't constitutionally ban such images altogether, chose instead to pass the "Newspaper Decency Act," which simply required newspapers that want to print such photographs on page one to print them *below the fold* (i.e. so that the such an image is not visible to passersby as the paper sits on the newstand rack)? Would such a law be constitutional?

And it was that question, and the exchange that followed it, that convinced me, finally and completely, that the judges "got it" about the constitutional problems with the CDA. At that moment I was certain that the CDA would be struck down.

I have known intellectually about the value of what lawyers call "oral argument" since I was a law student and started reading accounts about Supreme Court cases. But I never really appreciated its value as a crucible for legal theories until I attended the final arguments, on May 10, of the Philadelphia cases challenging the Communications Decency Act.

"Oral argument" is a point in a hearing or other court proceeding where the lawyers state the issues and argue their legal points "live" in front of the judge. When this is done at the conclusion of the lawyers' presentation of a case, it's termed "final argument." And if you had been there in the federal courthouse on May 10, you'd have seen how important oral argument can be.

Now, once you know the kind of research and writing that goes into a litigated case, you may wonder, as even some lawyers do, why courts ever bother with oral argument, especially in the final- argument phase. After all, that last phase is when all the arguments, including legal citations, are laid out right there in the opposing sides' briefs. What's the point of having the judge (or judges, if there's a panel, as there is in each of the CDA challenges) go through the process of quizzing the lawyers for each side about their arguments? Shouldn't they just save everybody time by going back into their chambers and reading the documents?

The answer is, oral argument turns out to be the best way for judges to test the legal theories that each side is advancing. By putting the lawyers on the spot, by asking them tough questions about real and hypothetical scenarios, by questioning them directly on the steps of their reasoning, judges can test, very efficiently, whose arguments hold up best, and whose arguments don't hold up at all.

I had been dying to be there for the whole set of court dates, but I live on the wrong coast. Still, the minute I realized I could fit an appearance for the Philadelphia final argument into my schedule, I booked a flight and a hotel room.

As a result, I stretched myself awake at 7 a.m. that Friday morning (4 in the morning for me -- I was on San Francisco time), dressed quickly, and joined the American Civil Liberties Union lawyers in the lobby of the Holiday Inn, just walking distance from the courthouse. I'm one of the "counsel of record" in this case myself -- the Electronic Frontier Foundation is also a plaintiff in the case -- and I had assisted ACLU's lead counsel, Chris Hansen, in putting ACLU, et al. v. Reno together. We'd spent time on the phone together, and had sent a lot of e-mail to each other. But this was only the second time I'd met Chris face- to-face, and it would be the first time I'd get to see him in action. I met Chris and another ACLU lawyer, Ann Beeson, in the lobby.

Our group got to the courthouse so early that the federal marshals, who are responsible for keeping the peace, had not yet set up that little electronic gate they use to check everyone for firearms and other weapons. I shortly discovered that this was a blessing -- I walked right in without fear of anyone's confiscating or zapping my potentially lethal PowerBook. Danny Weitzner (a director of the Center for Democracy and Technology, which is co-sponsoring the companion lawsuit, American Library Association, et al. v. United States Department of Justice) told me that other attendees had had some trouble clearing their computers with the feds. I guess that by this time the law- enforcement guys figured the nerds and their toys were no threat.

Nor was I the only one tap-tapping away (but quietly and respectfully -- we were in court!) when the final arguments began. Chief Judge Dolores Sloviter instructed the attorneys that this oral argument was "for our benefit rather than for yours," and she warned them that "we will interrupt you with numerous questions." Each attorney would have to make his arguments -- and answer questions -- in a strictly limited period of time. Concluding her opening remarks, Judge Sloviter, flanked by Judge Dalzell and District Judge Ronald Buckwalter, announced that "We will hear counsel."

The attorneys for the two cases had divided up in advance the burden of the making the final legal and constitutional arguments. ACLU's Chris Hansen would be up at bat first, focusing on the overbreadth and vagueness challenges to the statute, after which the A.L.A.'s Bruce Ennis (himself a former ACLU attorney) would focus on the least-restrictive means argument. Both attorneys would also address the fundamental question of whether the federal government even has the authority to regulate nonobscene, First- Amendment-protected speech, in any medium other than broadcasting.

Hansen opened his remarks by noting that there were "two subjects that are not in dispute in this case." The first, he said, is that "this is a criminal statute"; the second is that "this is a statute aimed at constitutionally protected speech." Hansen underscored a basic legal fact about the constitutional tests of both speech-restricting and criminal statutes: that if either kind of statute is "vague" (you can't tell what is prohibited/regulated) or "overbroad" (it has the effect of "chilling" lawful conduct or speech), it's unconstitutional. The terms of the CDA, Hansen said, are unclear as to what is prohibited (neither the "indecent" or "patently offensive" terms has ever been defined by Congress or the courts), so no one -- from big conferencing systems like CompuServe to newcomer Web publishers like Time Warner and Paramount to individual Usenet and e-mail users like you and me -- can be certain about what kinds of speech will or won't land them in hot water. What's more, the sheer scope of the legislation will cause lots of people to worry about what they post to Usenet or other public digital forms -- it will chill their expression of even constitutionally-protected content.

What adds to the uncertainty, Hansen said, is that the "defenses" provided by the statute -- that is, the things you have to do to avoid criminal liability -- are defined in terms of whatever filtering or screening technologies happen to be available at any given moment. Subsection (e) of the CDA, he pointed out, conditions a defense on the defendant's use of "reasonable and effective measures under current technology." As a result, Hansen said, the defenses will change every time the "current technology" changes. What worked last year won't necessarily work next year, which makes it hard to know what kind of planning you have to do.

Hansen then moved into the more basic constitutional question. "What this highlights, to me anyway, is the nature of the medium we're talking about." In response to questioning from the bench, Hansen distinguished computer communications from broadcasting, which the Supreme Court held to be more regulable than print or other, older media -- partly because broadcasting frequencies are "scarce," and partly because, in the words of Justice John Paul Stevens, broadcasting is "pervasive" and "uniquely accessible to children, even those too young to read."

If the judges are going to insist that the Net is like any prior medium, he said, it's most like print. "There are a limited number of speakers in the context of television," Hansen argued, while the Net is arguably "the most democratic means of speech yet devised." Online communications, he said, potentially "makes all of us as powerful as CBS News." And since every individual is a potential publisher on the Internet, the CDA is "calling upon every single American to define 'indecency'" -- a term on whose definition no majority of the Supreme Court itself has never been able to agree.

To impose such a burden on everyday citizens, on the pain of criminal penalties, said Hansen, is "particularly onerous." After all, he reminded the judges, "we're not talking about obscene speech." Nor, he added, is anyone defending child pornography -- the other major category of illegal expression. Instead, the challenge to the CDA is based on constitutionally protected speech -- speech that may not violate community standards, or that has serious social value. Such speech may not even appeal to what the Supreme Court has called "the prurient interest" -- said Hansen: "It's hard to say how anyone would be turned on by the George Carlin monologue" that was at issue in Federal Communications Commission v. Pacifica, the 1978 case that established the government's authority to regulate so-called "indecency" in broadcasting.

Hansen's presentation was frequently interrupted by -- in fact, it's fairer to say "driven by" -- questions from the bench, primarily from Judges Dalzell and Sloviter. And when Hansen's time was up, Bruce Ennis, speaking for the plaintiffs in the A.L.A. lawsuit, got a similar grilling. "I'm going to speak primarily about the subsection (e) safe-harbor defenses," Ennis told the court.

"Subsection (d), standing alone," he said, "would constitute a flat ban on speech that is constitutionally protected for adults." The infamous subsection (d) of the Communications Decency Act is the one that prohibits any "display in a manner available to a person under 18 years of age" of so-called "patently offensive" material. In effect, this part of the statute turns you into a felon if a 17-year-old college freshman obtains information from your Web site that would be perfectly legal if he obtained it from the Barnes & Noble bookstore at a shopping mall. No exceptions for parents, or teachers. No discussion of whether the material is educational or not. If you knowingly publish perfectly legal material from your computer or Internet node, you can end up doing two years in Club Fed.

Ennis stressed the fact that the CDA creates a criminal sanction for people engaging in certain kinds of constitutionally protected speech on the Net. Worse, he said, while in every other medium, speakers have a sure and safe way of complying with prohibitions, there's no such guarantee under the Communications Decency Act.

Asked Judge Sloviter: To whom is the safe-harbor defense available? Ennis responded: While a credit-card-approval requirement might be available under the dial-a-porn law, which only regulates commercial speakers, there's no similar mechanism available for the noncommercial speakers who make up the majority of users of the Net.

Judge Dalzell jumped in. Even for commercial speakers and publishers, using those defenses "are, at most, [merely] evidence of compliance" with the statute, aren't they? They're not guarantees that the speaker/publisher won't be prosecuted and convicted anyway, are they? Ennis agreed. At most, they're merely "substantial evidence," he said, citing a letter to that effect from one of the DOJ's assistant attorneys general. Dalzell then jumped in again, with a question about the leading dial-a-porn case (Sable Communications v. FCC, in which the Supreme Court held, in 1 989, that a flat ban on "indecent" commercial phone calls was unconstitutional). Asked Dalzell: Didn't Sable say the defenses were what would make a regulation of indecency -- as distinct from a ban -- constitutional?

Ennis responded by noting what makes the Internet different from dial-a-porn services: "The vast majority of speakers on the internet do not charge for access to their speech." Therefore, said Ennis, the statute provides a defense, if any, only to "that small subset of speakers" who can afford to use the credit-card companies to screen out minors. In other words, asked Dalzell, the people who could comply most easily are the commercial pornographers? Ennis agreed that this is so. "Credit card companies simply will not verify credit cards for noncommercial speakers," he said. Referring to testimony from the A.L.A.'s impressive array of technical witnesses, he added that "the evidence is quite clear that ... there is no technological way to screen for age on the Internet."

Judge Buckwalter also had a question about the defenses: With regard to the affirmative defenses, he asked, isn't this statute like other criminal statutes, which place the burden of proof of guilt on the government? No, said Ennis, the statute is not structured that way. Once the government has established its basic case (what lawyers call a "prima facie" case) that the defendant has knowingly made "patently offensive" material available, the burden shifts to the defendant to prove that the so-called defenses apply.

Having been peppered by questions from the bench, Ennis saw that he was running out of time, and commented, "We haven't spent as much time talking about newsgroups, chat rooms, and mail exploders" where the sort of screening prescribed by the CDA is even more difficult to implement than it is on the Web. "Those are huge areas of the Internet," he said.

Ennis also noted that that the government's argument seemed to be that every user on the net would be free from criminal liability if they "tag" or "self-label" or "register" their speech as potentially inappropriate for minors.

Dalzell responded with some sarcasm: "Do you take that point seriously in the light of what happened to CompuServe?" The venerable online service had been the subject of headlines in the days just prior to the final argument -- the Department of Justice had announced that, in response to complaints from the American Family Association (Donald Wildmon's organization), CompuServe's content was being reviewed for possible violations of the CDA. Are the government's people, asked Dalzell, really serious about these defenses? After all, the material in question was, in fact, tagged and in a separate directory, and screened by parental-control device. Yet this complaint was still referred to the FBI. And CompuServe was made to look in the national headlines as if it was a scofflaw porn vendor. So what use are the defenses?

Ennis agreed that they didn't seem to be of much use. He also noted that even if the commercial online services tag or register their content, tagging and registering will not work unless the parents are using software filters of some sort. But if the parents are all using filters, which may be based on a neutral content-classification scheme such as PICS, there's no need for tagging and filtering.

At this point, Judge Sloviter addressed another issue: What about the risk of a child's inadvertently coming across the inappropriate material?

According to the available evidence, Ennis said, "the odds are slim" that a child would come across this material by accident. In interactive computer services, unlike broadcast or radio, the user chooses where he wants to go.

As the clock ran down, Sloviter had even more questions: Could Congress trump parent wishes? After all, she said, the CDA's conference-committee report says it's the empowerment of parents that they're aiming for. And isn't there evidence that, even if the CDA were found to be somewhat effective, some substantial number of children could encounter the stuff outside the home"?

Dalzell chimed in: "Internet cafes? Libraries?"

And, asked Sloviter, what about the difficulties of even smart parents in using filtering and PICs?

Ennis attempted valiantly, if not wholly successfully, to answer all the questions in his remaining time, noting in particular that it's not difficult for parents to use this stuff, but if it is, that's as much a problem for the government's arguments as it is for the plaintiffs'.

As the clock ran out, Ennis was asked whether the statute could be rewritten by Congress and made constitutional. He allowed as how it could be improved -- especially by striking out the "display" offense altogether -- but the message was clear that he didn't think the statute could ever be made wholly constitutional. Hansen had given a similar answer to the same question earlier.

In the short break between Ennis's presentation and the government's, David Sobel of the Electronic Privacy Information Center looked over at me and said, with a little worry in his voice, that the questioning from the bench seemed a bit tougher today than it had in earlier phases of the case. "I think it's a good sign," I told him. "They're asking tough questions, but they're asking very intelligent questions."

Then DOJ attorney Anthony Coppolino got up to give the government's side of the case. And if the questioning seemed lively in the first part of the oral argument, it was so fierce, so sceptical, and so pointed during the government's argument that it fractured the government's presentation of the case. It wasn't that the judges' questions were any tougher for the government than they had been for the plaintiffs. Nor was it that the government attorneys were incompetent. The problem for the government was basically in their case itself -- they had to defend a statute that's not only of questionable constitutionality, but also incoherently drafted. (One section of the CDA, for example, seems explicitly to exclude the very "interactive computer services" that the drafters of the statute aimed to include, and that companies like CompuServe operate.) And they were forced to rely heavily on statements about the statute made in the Congressional conference-committee report about it -- a report whose statements about the relevant legal and constitutional principles is itself inconsistent and misleading.

Coppolino first informed the judges that he and his associate, Jason Baron would be dividing the issues up much the way Hansen and Ennis had, although "I do expect I will cross over a bit." Coppolino would deal with the overbreadth and indecency challenges, and the basic constitutional issue of whether the government can exercise this kind of authority, while the defenses for the noncommercial providers will be dealt with by Baron.

Most of the questioning of Coppolino and Baron paralleled the questions asked of Hansen and Ennis. Coppolino argued that the terms "indecent" and "patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" are not vague (they've been used by the FCC in a number of cases, and the cases tell us what the terms mean), and that the two terms in fact mean the same thing. In itself this is a reasonable argument -- the term "indecent" has been defined by the FCC, if not by Congress or the Supreme Court, to mean "patently offensive (etc.)."

Judge Dalzell had a problem with this argument, though: "Doesn't the conference report say that these terms are taken from Pacifica and Sable?" The problem for the government was that in neither Pacifica nor Sable had the Supreme Court adopted the "patently offensive" definition of indecency.

Judge Sloviter then asked if the government wanted the court "to write into" subsection (a) the "patently offensive" language?

"That's not hard," said Coppolino. The "patently offensive" definition does have some grounding in FCC caselaw.

But what about the requirement that a criminal statute give due notice to citizens as to what is prohibited? asked Sloviter. Answered Coppolino: the caselaw gives notice as to the meaning of the terms. (The legal fiction here is that everyday citizens know FCC caselaw, but the fact that this assumption defies common sense doesn't in itself hurt Coppolino's argument, since, as we all know, ignorance of the law is no excuse.)

Sloviter then asked about the conference-committee report's claim that the statute's does not penalize content with social worth: "You want us to read the statute to have a built-in exception for words of value?" In doing so, she was highlighting a problem with the conference-committee report's claims about the CDA -- although it states that "indecent" material does not include material of artistic, scientific, or political value, the FCC has explicitly stated that such value does not prove that material is not "indecent" for broadcast purposes.

Hence Coppolino's response: "I don't agree with that characterization."

Furthermore, he said, "We have not asked that the term be narrowed to pornography." (The conference report says that the statute addresses only pornography.) Instead, he said, "We want to use it as it has been applied by the courts." In short, Coppolino planned to rely more on the FCC caselaw about "indecency" than on the conference report. "Our point," he said, "is that it's not clearly anything about sex or anything with an expletive." He added, however, that indecency "can include pornography. It can also including shocking or vulgar textual discussions."

Judge Dalzell questioned whether the FCC's use of the term in broadcasting tell us anything about its meaning in the context of Internet communications. Isn't there some risk that "indecent" or "patently offensive" just mean what a U.S. Attorney somewhere decides it means?

Coppolino responded: We cannot provide assurance that a U.S. Atty won't take an absurd case. And the tough cases on the margins should be left for an "as-applied challenge." (There are two ways a statute can be unconstitutional. It can be "facially" unconstitutional -- that is, its terms on their face violate constitutional guarantees. Or it can be unconstitutional as applied by the government, in which case the judiciary can prohibit such applications of the law without striking down the law altogether.) Coppolino was telling the judges that we could rely on the court system to construe the statute so as not to be unconstitutional. The problem with his argument here was that the statute's very existence has already done reputational damage to CompuServe.

Sloviter asked about literary works that might be offensive yet still had literary or other value. She asked about Tony Kushner's prize-winning play about homosexuality and AIDS, Angels in America -- would that be "indecent" on the Internet? She also asked about Henry Miller's Tropic of Cancer.

"Unlike the plaintiffs," Coppolino said, "we don't believe that 'indecency' necessarily includes serious value or necessarily excludes material with prurient appeal." (He misstated plaintiff's argument here -- Hansen had simply noted that "prurient" appeal is not necessary for something to be found "indecent." This is not the same as saying that nothing "prurient" is indecent.)

Asked Sloviter: Under the First Amendment and the Due Process requirement of notification, what does the statute tell citizens about what is forbidden? Coppolino replied: "I can't give you a categorical answer about serious value."

Responded Sloviter: If you want the court to construe the statute as not prohibiting works of serious value,."[y]ou're asking us to be the activist judges that some members of Congress excoriate, and to put words into the statute that are not there."

Coppolino argued that indecency and "patently offensive" will be judged "in the local community" where the communication is at issue, much the way obscenity is. (In doing so, he departed from the FCC caselaw, which says that "community" for the purposes of defining indecency is a national standard -- it doesn't have the same meaning it does in obscenity law, which is grounded in local community standards.)

"Isn't that a problem in communications that are available all over the United States?" asked Judge Sloviter. The only disagreement would be at in marginal cases, asserted Coppolino, apparently arguing that there is already a national consensus as to what is indecent..

Judge Dalzell then asked about a web site that carried Robert Mapplethorpe photographs. Coppolino admitted that "there a few hard cases."

Judge Sloviter shot back: There are "lots of hard cases" the court could ask about. "But we don't have all day."

Responding to a question about what the CDA added to existing provisions in the federal criminal and communications codes, Coppolino attempted to address the issue of overbreadth.There is only "a very narrow category of speech" that is not obscene but is indecent, he asserted. This statute is a solution that aims at effectively protecting minors from this type of speech.

At this point, Coppolino seemed to be saying that "indecency" simply means "obscene for minors" or "harmful to minors." Judge Dalzell had problems with this: "How can we graft a harmful to minors statute when Congress specifically rejected it?" he asked, referring to alternative language that was proposed by Congressman Rick White during the conference committee, but which was rejected.

Dalzell also distinguished prior indecency cases from this one. Sable Communications, he said, was about commercial dial-a-porn vendors -- in that case, the very subject matter was porn. Imposing burdens upon that class of speakers is comparatively easy to justify constitutionally. But since the Net is available, potentially, to everyone: Isn't it an awful burden to make everyone go to First Amendment lawyers to know what's legal?

Furthermore, asked Dalzell, isn't it true that if the issue were merely pornography, not one of the plaintiffs in the ACLU or ALA cases would be reachable under a statute that aimed purely at pornography?

Coppolino seemed to agree. He then returned to his argument about whether it's appropriate for the plaintiffs to challenge the statute on its face. Judge Dalzell would have none of this -- plaintiffs might simply be able to prove "substantial overbreadth" of the statute he suggested. Dalzell added that the trial has seen a lot of evidence that there's a broad class of material available on the Net that is not porn but that nonetheless can be penalized.

Coppolino stated further that courts and citizens can be guided in understanding indecency by looking at what the FCC has identified as indecent in the broadcasting arena. He referred again to the committee report language, which says that "indecent" is defined "in context" -- which raised two problems for the government. First, it is not clear how courts (or anyone else) will interpret the "in context" language. Second, it's a problem to have to cite the committee report to support your case in one part of your argument while having to disavow its statements in other parts of your argument.

Dalzell questioned Coppolino about the Pacifica/George Carlin case: "tremendous weight," he said, was given in the Pacifica case to "the surprise element" inherent in radio programming. Is there anything like that degree of "surprise" on the Net, where users are making choices about what to see and read?

Coppolino argued that the Net was like the radio broadcasting in Pacifica: "Clearly you've got to compare it [the Net] to broadcast," he said. It's "pervasive" because it can be received in the home. He noted that when it comes to radio and TV, the Supreme Court has established and consistently upheld the "less tolerant standard of broadcasting."

And that's when Dalzell hit him with the artfully crafted hypothetical about the "Newspaper Decency Act" Would such a Newspaper Decency Act, which banned violence above the fold, be constitutional?

At first Coppolino misunderstood the question -- he took it be a general question about the meaning of "indecency." In reality, Dalzell was asking about general federal authority to regulate nonobscene content that might be harmful. The Supreme Court, despite the attempts by the government and others to misread the relevant cases, has never approved of such general content-control authority. Prudently, perhaps, Coppolino never answered this question directly.

But to me, sitting in the front row, it didn't matter what Coppolino's answer was. Dalzell's question, and Sloviter's followup questions signaled that they fully understood what was at stake in the CDA cases: namely, whether the Net would partake of the same freedoms that traditional media like newspapers have, or else be subjected to a strict regulatory regime of the sort that has turned broadcasting into relatively bland and uninteresting fare.

When Coppolino did understand the question (to his credit, it didn't take him long), he said that that the Net is more like broadcasting because it "comes into the home." Responded Dalzell: The Inquirer comes into my home.

Coppolino: A child can't go buy Playboy. Sloviter: But parents can subscribe -- Playboy does, in fact, come into many people's homes.

Coppolino attempted to recover. The issue, he said, is links to sexually explicit sites on the Web. What about the risks of inadvertent exposure? he asked.

That gave Sloviter an opportunity to take over the questioning. Suppose there is minimal risk of accidental exposure -- is there a compelling government interest (such an interest is constitutionally required in legislation like the CDA) if there's no inadvertence or surprise? And what if a 14-year-old child wanted to see the material and the parents don't care? In her questions, Sloviter was raising the issue of how the CDA would affect the availability of "indecent" or "patently offensive" material if parents approved of their minor child accessing it. The point of her questions was that the CDA would have the effect of *decreasing* the availability of that material. So the government's claim that the CDA somehow "empowers parents" is false.

Coppolino returned to his theme of pervasiveness --the Net is still closer to broadcasting than to print, he asserted, and so it therefore merits the kind of close control that the federal government already applies to broadcasting. Sloviter then asked whether Henry Miller's classic novel, Tropic of Cancer, would be indecent. Coppolino responded: "This isn't about Catcher in the Rye."

Sloviter then commented with some amusement that Tropic is a very different sort of book than is Catcher.

Sloviter's final question sank any credibility that the conference report might have when it came to interpreting the statute. What about the committee's claim that there is an "intent to offend" element to the crime? she asked.

Responded Coppolino: "That would be a lot to read into the statute." In short, he had to bail on one of his own authorities.

The questioning of Tony Coppolino was so devastating to the government's case that it took away the breath of most of the onlookers in the courtroom. The plaintiffs had undergone tough questioning, but the government's case seemed bullet-ridden after Coppolino's turn at bat. DOJ attorney Jason Baron tried to recover by claiming that the defenses built into the statute rended the CDA constitutional, but Judge Dalzell -- seemingly personally offended by what had happened to CompuServe in the week -- was nothing if not sceptical. "What more could CompuServe have done [to protect children] than what it did?" Dalzell asked, after noting that the adult material in question had already been rendered inaccessible to minors through a number of mechanisms.

Said Baron: "I don't think that's a very good example." Visibly angry, Dalzell responded: "Could you answer my question?"

Baron attempted to argue that the Department of Justice may really have been concerned about obscene rather than indecent material, but he was forced to rely on a letter written after the fact. The judges seemed to find his argument unconvincing. Said Baron: "The fact is, as we stated in page 632 of our post-hearing brief ... The answer to your hypothetical would be, I would expect, that there would be an affirmative defense... under the available technology."

The problem here was that the government was already on the record as saying that use of current technology to screen out nonobscene but "indecent" material from minors would, as most, count only as evidence of a defense, and not establish a defense in and of itself.

Judge Buckwalter had many questions for Baron -- which seemed significant, since he had been relatively quiet for much of the earlier questioning. But Buckwalter seemed to be troubled that there was "no effective way" for a speaker on the Internet to guarantee being able to avoid liability.

Argued Baron: "The key to the CDA is the burden on the content provider to do something rather than nothing."

Dalzell quickly slamdunked that comment: "But CompuServe did something." (And yet CompuServe still had to face an investigation/review from the FBI.)

Dalzell later read a May 3 letter from the American Reporter case assistant AG: "Under present technology, it is the position of the department, ... such efforts would constitute substantial evidence ... under the circumstances."

Further, Dalzell said credit-card identification of minors is a non-starter -- it would unfairly burden individuals and non-profit groups by requiring them to spend money on the credit services that noncommercial Net publishers typically don't have. There was a some discussion of one plaintiff's insistence that his material needs to be "indecent" in order to interest minors in AIDS education and safe-sex information. Baron responded by saying that if such people don't want to engage in self-rating, "the alternative would be that PICS would block that site.

Dalzell: "But that's the parents' decision, not the government's decision, wouldn't you admit?"

Baron was at a loss to come up with a good answer to this one. Judge Sloviter asked about a web site called "Bianca's Smut Shack": "How would you block it for Judge Dalzell's ten-year-old, but make it available to Judge Dalzell if he wants to see it?" Baron seemed to fumble his answer -- perhaps because there is no good answer.

Dalzell commented, with some heat: You ridiculed the witness who said that all that has to happen is that somebody finds me offensive and complains to the Department of Justice. Isn't that just exactly what happened with CompuServe?

Although there were a few more questions, Baron's argument was effectively over at that point.

In the rebuttal phase, Hansen and Ennis, sensing the possibility of a clear victory, strove to give the court the strongest, broadest arguments for striking down the statute. Said Hansen: Even if filtering technology is constantly improving, "there are two things that are enormously troubling". First, he said, the nature of the speech being criminalized by the CDA is valuable speech, and the statute even applies to libraries -- at three separate points, the statute refers to libraries and colleges. The second is that required self-labelling is "compelled speech," which is also barred by the Constitution.

Ennis summarized his case with "three brief points":

1) Everyone agrees that, regardless of what is available for the Web, there is no technology now, and none in the pipeline, that would screen Usenet, mailing lists, and chat rooms.

2) With regard to whether "tagging" content is a defense for providers: ."I think it's important to recall that the government admitted that tagging is not a defense today." At most it's "substantial evidence." even if it's all in place.

3) Attaching a compelled label to your own speech is something the First Amendment bars government from forcing upon you. A court should never construe a statute in a way that would create a new First Amendment problem, Ennis concluded. And Congress had no intention of doing so. Congress specifically rejected compelled labelling of broadcast when it mandated the so-called V-chip, which is intented to enable parents to filter out violent content on TV.

Then Ennis sat down, and the final argument was over.

And I sat there, numb with the sense that we had won, that the judges had understood the issues at stake, that the government's defense of the CDA had been destroyed. Now, it's true that many lawyers and law professors will tell you that you can't predict the outcome of a case from an oral argument. But it was hard to sit there in that windowless Philadelphia courtroom and not be morally certain that, on one or more grounds, the singularly offensive and unconstitutional Communications Decency Act would be struck down.

It was a good to day to be a lawyer. And a good day to renew one's faith in the law.

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Subject: NewsNybbles

Eden MusicFest '96

Eden MusicFest, A 3 day Modern Rock Festival and Exposition, has been confirmed and will take place July 12-14 at Mosport Park. The 400-acre site is located 45 minutes east of Toronto and can accomodate a projected attendance in excess of 60,000.

Eden Interfest will pioneer the use of "Cyber Sales," whereby ticket sales will be initially offered over the Internet, at a discount. Tickets are available NOW.

A portion of revenues from ticket sales from the concert will benefit the Electronic Frontier Foundation (EFF) and their Canadian counterpart, Electronic Frontier Canada. The organizations have been chosen as beneficiaries for their valuable contributions to civil liberties online and their dedication to free speech and the reduction of censorship on the Internet.

The event will include a state-of-the-art "Internet Expo" featuring exhibitors with high visibility on the World Wide Web. The festival will also include weekend camping and a global village with arts and crafts, a variety of vendors and merchandisers, information providers, and more.

Artists who'll be performing include:

The Tragically Hip, Bush, The Cure, Live, Love and Rockets, Everclear, Spacehog, The Watchmen, Goo Goo Dolls, Tracy Bonham, Spirit of the West, Seven Mary Three, Spin Doctors, Cibo Matto, and more!

More major bands will be confirmed soon.

Please attend, have a great time, and help EFF and EFC protect your civil liberties online!

For full details, please see the event web site at:

http://www.edenent.com

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Subject: Upcoming Events

The latest version of the full EFF calendar is available from:

See also our new Now-Up-to-Date HTML calendar at: http://events.eff.org

June 6 - 8 - Connected Classroom Conference; using the Internet in the classroom, sponsored by National Education and Technology Alliance; Hunt Valley Marriott Inn, Baltimore, MD.
Contact: +1 800 638 1639
Fax: +1 717 393 5752
Email: register@classroom.net
URL: http://www.classroom.net/connected/

June 6 - 9 + 5CYBERCONF: Fifth International Conference on Cyberspace; Madrid, Spain. Hosted by "Fundacion Arte y Technologia de Telefonica. Deadline for registration is May 1, 1996.
Tel. 34-1-542-9380
Fax. 34-1-521-0041
Email: 5cyberconf@ceai.telefonica.es
URL http://www.telefonica.es/fat/

June 9 - 10 - Communications Law Institute, a continuing and distance education service of the College of Communications and the Pennsylvania Center for the First Amendment. The conference will feature scholars, First Amendment experts and professional journalists examining the effect of new communication technologies on copyright, government access and libel. The Penn State Scanticon Conference Center Hotel. To register, call 1-800-778-8632 or send Email to conferenceinfo@cde.psu and include all pertinent info.
Contact: Robert D. Richards, +1 814 863 1900
Fax: +1 814 863 8044
Email: rdr2@psuvm.psu.edu
URL: http://www.cde.psu.edu/C&I/Commlaw.html

June 11 - 13 - National Educational Computing Conference; Minneapolis Convention Center, Minneapolis, MN.
Contact: +1 612 638 8764
Fax: +1 612 638 8769
Email: necc96@ties.k12.mn.us

June 15 - Open discussion of the lack of computer industry philanthropy.
$10 dollar donation includes dinner and drinks. ($5-children);
4pm - midnight, Fred and Sylvia's CyberSalon West, 630 San Miguel Way, Berkeley, CA.
Contact: +1 510 526 5555

June 16 - 20 - Society and the Future of Computing; Snowbird, UT.
Email: rxl@lanl.gov
URL: http://www.lanl.gov/SFC

June 17 - 18 - Practicing Law Institute's 16th Annual Institute on Computer Law:
Understanding the Business and Legal Aspects of the Internet; San Francisco, CA
Contact: +1 800 477 0300
Email: info@pli.edu

June 17 - 18 * Venture Market Europe - presentation and discussion of private technology company CEOs' international business plans and ideas; London, England. ph: 415/865-2277 x210, fax: 415/865-0453

June 17 - 22 - World Conference on Educational Multimedia and Hypermedia,
ED-MEDIA 96; Boston, MA. Submission deadline: Oct. 20, 1995.
Contact: +1 804 973 3987
Fax: +1 804 978 7449
Email: aace@virginia.edu

June 21 - 22 - ISTAS 96, International Symposium on Technology and Society;
Princeton Univeristy, Princeton, NJ. Abstract submission deadline: Dec. 15, 1995.
Email: istas@wws.princeton.edu
Fax: +1 609 258 1985

June 21 - 22 - "Personal Information - Security, Engineering and Ethics,"
sponsored by the Britsish Medical Association; Isaac Newton Institute, Cambridge, MA. Deadline for submissions: May 10.
Contact: Dr. Ross Anderson, Isaac Newton Institute, 20 Clarkson Road, Cambridge CB3 0EH, England
Email: rja14@newton.cam.ac.uk

June 24 - 26 + Australasian Conference on Information Security and Privacy;
New South Wales, Australia
. Email: jennie@cs.uow.edu.au

June 25 - 28 + INET 96, The 6th Annual Conference of the Internet Society: "The Internet: Transforming Our Society Now"; Montreal Canada. Deadline for abstracts: Jan. 15.
Contact: Carol Gray, International Secretariat
12020 Sunrise Valley Drive, Suite 210
Reston, VA 22091
Voice: +1 703 648 9888
Fax: +1 703 648 9887
Email: inet96@isoc.org
URL: http://www.isoc.org/conferences/inet96

June 26 - 28 - MIT seminar, "Converging Networks: Business and the Telecommunications Act of 1996."
Email: cnbta@rpcp.mit.edu
URL: http://farnsworth.mit.edu/Workshops

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Subject: Quote Of The Day

"Conventionality is not morality. Self-righteousness is not religion. To attack the first is not to assail the last."
- Charlotte Bronte

Find yourself wondering if your privacy and freedom of speech are safe when bills to censor the Internet are swimming about in a sea of of surveillance legislation and anti-terrorism hysteria? Worried that in the rush to make us secure from ourselves that our government representatives may deprive us of our essential civil liberties? Concerned that legislative efforts nominally to "protect children" will actually censor all communications down to only content suitable for the playground? Alarmed by commercial and religious organizations abusing the judicial and legislative processes to stifle satire, dissent and criticism?

Join EFF!

http://www.eff.org/EFFdocs/join_eff.html (or send any message to info@eff.org).

Even if you don't live in the U.S., the anti-Internet hysteria will soon be visiting a legislative body near you. If it hasn't already.

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Subject: What YOU Can Do

The Communications Decency Act and similar legislation pose serious threats to freedom of expression online, and to the livelihoods of system operators. The legislation also undermines several crucial privacy protections.

Business/industry persons concerned should alert their corporate govt. affairs office and/or legal counsel. Everyone should write to their own Representatives and Senators, letting them know that such abuses of public trust will not be tolerated, that legislators who vote against your free speech rights will be voted against by you in the next elections.

Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html

PARTICIPATE IN BLUE RIBBON ACTIVISM EFFORTS: http://www.eff.org/blueribbon/activism.html

Support the EFF Cyberspace Legal Defense Fund: http://www.eff.org/pub/Alerts/cyberlegal_fund_eff.announce

For more information on what you can do to help stop this and other dangerous legislation, see:

If you do not have full internet access (e.g. WWW), send your request for information to ask@eff.org.

IMPORTANT! KEEP AN EYE ON YOUR LOCAL LEGISLATURE. All kinds of wacky censorious legislation is turning up at the US state and non-US national levels. Don't let it sneak by you - or by the online activism community. Without locals on the look out, it's very difficult for the Net civil liberties community to keep track of what's happening locally as well as globally.

Urge your Represenatitives to support the Pro-CODE crypto export bill (and to fix the few remaining bugs in it).

For years US export controls on encryption have hampered the development of secure communications online. This technology is vital for online commerce, for national security, and for YOUR electronic privacy.

The new Pro-CODE legislation will go a long way to rectifying the situation.

Join in the Golden Key Campaign - see http://www.eff.org/goldkey.html

PARTICIPATE IN GOLDEN KEY ACTIVISM EFFORTS: http://www.eff.org/goldkey/activism.html

Support the EFF Cyberspace Legal Defense Fund: http://www.eff.org/pub/Alerts/cyberlegal_fund_eff.announce

See also:

The FBI has been seeking both funding for the DT/CALEA wiretapping provisions, and preparing to require that staggering numbers of citizens be simultaneously wiretappable.

To oppose the funding, write to your own Senators and Representatives urging them to vote against any appropriations for wiretapping.

We are aware of no major action on this threat at present, but keep your eyes peeled. It will be back.

See http://www.eff.org/pub/Privacy/Surveillance/ for more info.

Several bills threatening your privacy and free speech have been introduced recently. One passed, but none of the rest of them are close to passage at this very moment - however, this status may change. Urge your Congresspersons to oppose these unconstitutional and Big-Brotherish bills, which threaten freedom of association, free press, free speech, and privacy. One such bill passed a few weeks ago, stripped of some of the more onerous provisions. It could have been worse, and could yet still be worse.

Keep up the pressure. Write to your legislators: No secret trials and deportations, no expansion of wiretapping scope or authority, no national or "smart-card" ID systems!

For more information on some of this legislation, see http://www.eff.org/pub/Privacy/Terrorism_militias/

This bill is unlikely to pass in any form, being very poorly drafted, and without much support. However, the CDA is just as bad and passed with flying colors [the jolly roger?] in Congress. It's better to be safe than sorry. If you have a few moments to spare, writing to, faxing, or calling your Congresspersons to urge opposition to this bill is a good idea.

Several bills relating to medical privacy issues are floating in Congress right now. Urge your legislators to support only proposals that truly enhance the medical privacy of citizens.

More information on this legislation will be available at http://www.eff.org/pub/Privacy/Medical/ soon. Bug mech@eff.org to make it appear there faster. :)

A new bill to protect children from unethical marketing practices (e.g. tricking kids into revealing personal information by offering prizes or games) has been introduced. EFF and other civil liberties organizations like, and dislike, various points in this bill. The legislators sponsoring the bill appear interested in resolving the problems in the statutory language they have proposed. More information on this will be provided soon.

Writing letters to, faxing, and phoning your representatives in Congress is one very important strategy of activism, and an essential way of making sure YOUR voice is heard on vital issues.

EFF has lists of the Senate and House with contact information, as well as lists of Congressional committees. These lists are available at:

The full Senate and House lists are senate.list and hr.list, respectively. Those not in the U.S. should seek out similar information about their own legislative bodies. EFF will be happy to archive any such information provided to us, so pass it on!

If you are having difficulty determining who your US legislators are, try contacting your local League of Women Voters, who maintain a great deal of legislator information, or consult the free ZIPPER service that matches Zip Codes to Congressional districts with about 85% accuracy at: http://www.stardot.com/~lukeseem/zip.html

Computer Currents Interactive has provided Congress contact info, sorted by who voted for and against the Communcations Decency Act: http://www.currents.net/congress.html

You know privacy, freedom of speech and ability to make your voice heard in government are important. You have probably participated in our online campaigns and forums. Have you become a member of EFF yet? The best way to protect your online rights is to be fully informed and to make your opinions heard. EFF members are informed and are making a difference. Join EFF today!

For EFF membership info, send queries to membership@eff.org, or send any message to info@eff.org for basic EFF info, and a membership form.

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Administrivia

The Electronic Frontier Foundation
1667 K St. NW, Suite 801
Washington DC 20006-1605 USA
+1 202 861 7700 (voice)
+1 202 861 1258 (fax)
+1 202 861 1223 (BBS - 16.8k ZyXEL)
+1 202 861 1224 (BBS - 14.4k V.32bis)
Membership & donations: membership@eff.org
Legal services: ssteele@eff.org
Hardcopy publications: pubs@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org

Editor: Stanton McCandlish, Online Services Mgr./Activist/Archivist (mech@eff.org)
This newsletter printed on 100% recycled electrons.

Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements may be reproduced individ- ually at will.

To subscribe to EFFector via email, send message body of "subscribe effector-online" (without the "quotes") to listserv@eff.org, which will add you to a subscription list for EFFector.

Back issues are available at:

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HTML editions available at:

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