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 

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 

        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

         The Supreme Court's opinion is expected by this summer."