----------------------------------------------------------------------------- Fight-Censorship Dispatch #10 ----------------------------------------------------------------------------- The CDA Challenge: Last Day in Court ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- In this dispatch: The DoJ's flimsy, cheesy, flawed defense Judges question DoJ investigation of CompuServe "The Newspaper Decency Act" 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 ----------------------------------------------------------------------------- Mentioned in this article: DoJ refers American Family Association's CDA complaint to the FBI: <http://pathfinder.com/Netly/daily/960507.html> AFA "charges" CompuServe with violating the CDA: <http://fight-censorship.dementia.org/dl?num=2252> FBI finally rebuffs the AFA, when pressed: <http://fight-censorship.dementia.org/dl?num=2445> Excerpts from DoJ and anti-porn groups' CDA briefs: <http://fight-censorship.dementia.org/dl?num=2387> Transcript of Olsen's "-L18" description and other testimony: <http://www.cdt.org/ciec/transcripts/April_15_Olsen.html> Mike Godwin on indecency vs. obscenity: <http://www.cs.cmu.edu/~declan/articles/godwin.indecency.txt> This and previous Fight-Censorship Dispatches are available at: <http://fight-censorship.dementia.org/top/> <http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/> <http://www.epic.org/free_speech/censorship/lawsuit/> To subscribe to the fight-censorship announcement mailing list for future Fight-Censorship Dispatches and related discussions, send "subscribe fight-censorship-announce" in the body of a message addressed to: majordomo@vorlon.mit.edu Other relevant web sites: <http://www.eff.org/> <http://www.aclu.org/> <http://www.cdt.org/> <http://www.ala.org/> -----------------------------------------------------------------------------