Communications Decency Act (CDA) opponents have been encouraged by their first day in the US Supreme Cour, saying that the justices' questions showed they viewed the Internet as a new medium and were trying to grapple with the technology.
"The justices ... realised they're dealing with a new technology, a new medium, and I sense they were trying to ask the right questions about it," says William Burrington, director of law and public policy and assistant general counsel at American Online., a plaintiff in the case. "The only frustration I have is they have to rely on a paper evidentiary record .... until you see (the Internet), you don't know how it works."
The CDA, which was enacted last year, makes it a crime to display or transmit indecent material to minors over the Internet or online services. Part of the Telecommunications Reform Act of 1996, the law was the US Congress' first attempt to regulate cyberspace. Last June, a three-judge federal district court panel in Philadelphia found the CDA unconstitutional, saying that it violated the US Constitution's guarantee of free speech. It issued a preliminary injunction to bar enforcement of the law.
The case before the Supreme Court, Reno vs. American Civil Liberties Union, also marks the first time the nation's highest court has considered the limits of free speech on the Internet.
During today's proceedings, each side was allowed 35 minutes for oral arguments, five minutes longer than usual, probably because of the magnitude of the case, says Bruce Ennis, lead attorney for the plaintiffs.
The US Department of Justice's Seth Waxman led off the proceedings. He argued that the government has a responsibility to protect children on the Internet, which offers them essentially "a free pass into the equivalent of every adult bookstore and videostore in the country." He also argued that content providers can screen web site users to be sure that they are not minors, by using credit card numbers or services that issue adult IDs.
Justices grilled Waxman, however, about whether the law was akin to screening private telephone calls for indecent content that a minor might intercept, or barring adults from having an indecent conversation in a public common, or park, where a minor might overhear them. They also questioned whether the law would potentially criminalise parents who let their children use a home computer to surf the Web.
"Mr. Waxman was absolutely on the hot seat," says Marc Jacobson, vice president and general counsel for Prodigy Inc. "Bruce (Ennis) had the softer questions .... that says that they had fairly well made up their minds to affirm the lower court and strike down the law."
Ennis argued that the law was unconstitutional because it criminalises speech between adults that is legally protected by the First Amendment. It will not effectively protect children from indecent material on the Web, because 40% of that material comes from outside the US., and there are less restrictive ways to protect children. The combination of a vague law and a criminal penalty will have a chilling effect on speech that might not even be indecent, Ennis said.
Setting up credit card or ID screening systems would be prohibitively expensive for commercial content providers and impossible for the average computer user sounding off in a chat room or on a newsgroup, Ennis said.
While some justices indicated that they view it like a public common, others questioned whether it had more in common with radio. There is not enough spectrum for everyone to own a radio station, they say, so the government licenses the spectrum out; in that medium, some indecency restrictions apply.
The plaintiffs, however, have argued that the Internet has more in common with print media than with broadcast media.
"The reason government can say not everyone can own a radio station is because there is spectrum scarcity," Ennis said after the hearing. "The Internet is the absolute opposite of spectrum scarcity."
The justices are expected to rule on the case by the end of June. When they do, the plaintiffs expect government and human rights organisations around the world will be watching, given the US's role as a leader in IT and a protector of free speech.
"The CDA, if upheld, sends a signal that the freest country .... believes cyberspace needs to be (censored)," said Jerry Berman, of the Center for Democracy and Technology, one of the plaintiffs. "This will be a message around the world."