Claiming that no less than the future of the Internet is at stake, opponents of the Communications Decency Act (CDA)take their case to the highest court in the US today. The case revolves around the constitutionality of the CDA, enacted last year, which made it a crime to distribute indecent material to minors over the Internet or online services.
The US Supreme Court will begin hearing oral arguments from both sides in Reno vs. American Civil Liberties Union. The case revolves around the constitutionality of the CDA, enacted last year, which made it a crime to distribute indecent material to minors over the Internet or online services.
Last June, a three-judge panel in a Philadelphia federal court found the CDA unconstitutional, issuing a preliminary injunction to bar enforcement of the law. The strong ruling, appealed by the U.S. Justice Department to the Supreme Court, thrilled CDA opponents and free-speech advocates. But it does not mean that the Supreme Court will be an easy sell, according to one attorney on the case.
"We are concerned that we are approaching a court that, by and large, is not going to have had personal experience with the Internet," says Ann Kappler, an attorney with Jenner & Block in Washington, D.C., a firm representing a coalition of CDA opponents before the Supreme Court. "It is going to be a challenge for them to understand the technology."
During the Philadelphia court proceedings, CDA opponents were able to show the justices how to search the World Wide Web - live from the courtroom - and show them how filtering software works, Kappler said. But at the Supreme Court level, CDA opponents and the Justice Department will get only a half-hour each to argue their case, which will not allow enough time for a live Web demonstration, she says.
Lack of familiarity with the Web is not the only concern, Kappler said. Issues pertaining to the First Amendment of the U.S. Constitution have not been handled in a clear-cut way by this court, and the rapid pace of change in Internet technology and use could also complicate the ruling, she says.
"There is also, frankly, a resistance among this court ... to set standards that are fixed in time for a medium that is evolving," Kappler says.
The CDA opponents will offer a three-pronged argument as to why the law is an unconstitutional restriction on free speech, Kappler said: First, it effectively bans a broad range of communications between adults that are protected under the First Amendment guarantees of free speech; second, because of the global nature of the Internet, a significant amount of material on the Web comes from outside the US., so restricting US content providers will have little or no impact on foreign sources of indecent material; and third, there are less restrictive ways to make sure that children are not exposed to objectionable material on the Web, such as content filtering software.
Based on briefs submitted to the court, the Justice Department will argue that the Internet has similarities to broadcast media such as radio and television, in which indecency restrictions apply. The CDA's opponents, however, will argue that the Internet is not a broadcast-style medium but rather has more in common with print media and the First Amendment rights surrounding it.
"We don't need a Federal Communications Commission ruling over the New York Times, nor do we need them prevailing over the Internet," says Jerry Berman, director of the Center for Democracy and Technology in Washington, D.C. The CDT is a member of the Citizen's Internet Empowerment Coalition, part of an American Library Association-led second challenge to the CDA. That challenge was merged with the ACLU's challenge.
Following the oral arguments Wednesday, the ACLU and other plaintiffs will hold a press conference to discuss the proceedings. It will be broadcast over the Web via Real Audio. Information can be found at http://www.aclu.org/issues/cyber/trial/appeal.html