Date: Fri, 21 Mar 1997 22:03:21 -0500 Subject: SLAC Bulletin: Reno v. ACLU hearing Law student Michael Green waited all night in the rain outside the Supreme Court to attend the historic argument of Reno v. ACLU last Wednesday. Here are his comments. " Battling the cold rain and snow, hundreds of people lined up in front of the Supreme Court as early as Tuesday night to hear oral arguments in the ACLU v. Reno "CDA Internet Indecency Case" scheduled for 10:00AM Wednesday morning. In February, 1996, the Communications Decency Act ("CDA") was passed as part of a larger Telecommunications Act, making it a felony to knowingly transmit any indecent materials to a minor. In June, 1996, a three judge panel sitting in Philadelphia declared the CDA unconstitutional and the government appealed to the Supreme Court. Well over a dozen briefs were filed both in support and opposition to the CDA and both sides attempted to answer the questions of the Justices in the allotted 35 minutes each. The Justices appeared to have familiarized themselves with some of the technology, but the result of crash course learning is usually confusion. For example, as Justice Stevens was proposing a hypothetical, he interjected, "Adult ID equipment. Whatever that is." and Chief Justice Rehnquist wasn't quite sure why online service providers or Internet service providers could not scan for age. Nevertheless, the Justices did focus on some particular topics. Justice Breyer questioned what effect the CDA would have as applied to telephone communications. He hypothesized about two high school teens talking over the phone about sexual relations and received a roar of laughter when he added that such talk "was known to happen with high school students." Justice Scalia then also received a laugh when he questioned whether there "was an exception for high school students," to which Seth Waxman, arguing for the government, replied, "you won't find it in the legislative history." However, the laughter quickly faded as the question of whether a parent could be guilty of a felony if he or she sent an indecent e-mail to their 17 year old son or daughter in college was presented. The Justices commented on the over broad and vague nature of the statute that theoretically would include parents. Waxman stated the intent of the law was not to take such decision making powers away from the parent, but rather to protect children from third parties. Even more frightening, he stated that perhaps a parent who allows their child to view these indecent materials could be charged with child abuse. Bruce Ennis, attorney for the American Library Association spoke on behalf of the Plaintiffs. He argued that the Internet is different from broadcast because it is interactive and that the CDA was different than the issue in Denver Area Telecommunications Consortium v. FCC because the CDA involves criminal sanctions. However, the Justices seemed more interested in discussing the filtering services. Justice Ginsburg asked whether these devices were the least restrictive means, which Ennis responded they were, citing America Online, Prodigy and CompuServe's built in parental control functions and the inexpensive availability of add on filters. Yet, Justice O'Connor questioned the effectiveness of the filters. Justice Souter added his humor to the proceedings by announcing that he throws away his computer every five years and gets a new one to lead up to his question "whether the CDA could be constitutional next week or next year." Ennis argued the CDA would be unconstitutional in any situation because it is still over broad and vague. The discussions then seemed to gravitate towards some less discussed issues. Justice Kennedy brought up the issue of foreign jurisdiction and enforcement while Justice Ginsburg inquired as to other countries that restrict content on the Internet. Justice Scalia, on the other hand, was confused as who would have the burden of proof in the case, the answer to which did not seem obvious from the ensuing discussion. Notably absent from the questioning process was Justice Thomas, whose opinion in Denver made him seem like the natural leader in this case and potentially the best friend to the anti-CDA forces, surprised many of the observers by his silence throughout the entire proceeding. The Supreme Court's opinion is expected by this summer."