CDA Trial Transcript
5/10/96 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- - -
AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M
UNION, et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: May 10, 1996
JANET RENO, in her official :
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
HEARING BEFORE:
THE HONORABLE DOLORES K. SLOVITER,
CHIEF JUDGE, UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
THE HONORABLE RONALD L. BUCKWALTER
THE HONORABLE STEWART DALZELL
UNITED STATES DISTRICT JUDGES
- - -
APPEARANCES:
For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE
MARJORIE HEINS, ESQUIRE
ANN BEESON, ESQUIRE
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
-and-
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
123 S. 9th Street, Suite 701
Philadelphia, PA 19107
-and-
For the ALA BRUCE J. ENNIS, JR., ESQUIRE
Plaintiffs: ANN M. KAPPLER, ESQUIRE
JOHN B. MORRIS, JR., ESQUIRE
Jenner and Block
601 13th Street, N.W.
Washington, DC 20005
- - -
APPEARANCES: (Continued)
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT
Department of Justice
901 E. Street, N.W.
Washington, DC 20530
-and-
MARK KMETZ, ESQUIRE
U.S. Attorney's Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
- - -
Also Present: MICHAEL KUNZ
Clerk of the Court for the
Eastern District of Pennsylvania
- - -
Deputy Clerks: Thomas Clewley
Matthew J. Higgins
Audio Operator: Andrea L. Mack
Transcribed by: Geraldine C. Laws
Grace Williams
Tracey Williams
Laws Transcription Service
(Proceedings recorded by electronic sound recording; transcript
provided by computer-aided transcription service.)
(Whereupon the following occurred in open court at
9:32 o'clock a.m.:)
CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner
of persons having any matter to present before the Honorable
Delores K. Sloviter, Chief Judge of the United States Court
of Appeals for the Third Circuit, the Honorable Ronald L.
Buckwalter and the Honorable Stewart Dalzell, Judges in the
United States District Court for the Eastern District of
Pennsylvania may at present appear and they shall be heard.
God save the United States and this Honorable Court.
Court is now in session, please be seated.
JUDGE SLOVITER: Good morning.
I think you should know the Court's view as to the
argument today. We deem this as for maybe I speak from the
vantage point of an Appellate Judge, but we deem this for our
benefit rather than for yours in that you have set forth in
the comprehensive briefs and your proposed findings of fact
and conclusions of law your positions.
While, of course, you will proceed, we will
interrupt you with -- I assume we will interrupt you with
numerous questions, at least I know I have numerous questions
after reading these. And therefore, although we have given
you time limits, those are your time limits, the Court has no
time limits and therefore we, to the extent that we want
clarification, we will go over those time limits, it doesn't
reflect on either or any of the parties if we ask more
questions of one party than of another or if our extensions
come unequally for that purpose.
We believe that you shouldn't make plans to go by
plane before lunch anywhere since it is possible that --
likely that we will go beyond the lunch period, give
everybody a break and then resume. We tell you that at the
outset so that you can know.
Anything else preliminarily? Anything else
preliminarily?
Okay, we will hear from counsel.
MR. HANSEN: Good morning, your Honors. My name is
Christopher Hansen. I'm one of the lawyers representing the
ACLU plaintiffs in this case.
I'd like to begin by addressing two subjects that
are not in dispute in this case that are extremely important
to the plaintiff's analysis of this case.
The first is that this is a criminal statute, it's
not a regulatory statute or an FCC regulation, it's a
criminal statute. It carries the penalties of fines,
imprisonment and a criminal record.
Second, it is a criminal statute aimed at speech
which all parties agree is constitutional and protected
speech, at least for adults.
The rules of vagueness and overbreadth, which are
the primary subjects I'm going to be addressing this morning
are held to their strictest when either of these two criteria
apply, either when they say the statute is a criminal statute
or when it implicates First Amendment barriers, here we have
both.
And thus the rules of vagueness and overbreadth in
this context must be applied with particular strictness.
JUDGE SLOVITER: On the other hand, this is a
preliminary injunction request and the Supreme Court has made
very clear that in preliminary injunctions the Court is not
to reach out and decide the issues that are not absolutely
essential at that time. Is that not correct?
MR. HANSEN: Oh, that's certainly correct. We think,
however, it is going to be essential for you to not reach out
but have to decide the issues of vagueness and overbreadth as
they apply to this particular statute.
There are a couple of other features about the fact
that this is a criminal statute that I would like to
highlight, in addition to the fact that it carries the
potential of imprisonment.
The first is that it does require immediate
compliance upon penalty of imprisonment. Now, I cross-
examined Mr. Olsen on my hypothetical, allow my clients to
comply with this statute by 6:15 in the afternoon and it
sounded extreme at the time because it is an incredibly tight
schedule within which to comply with the statute.
But the statute doesn't contain a phasing period, it
doesn't contain a period of grace during which people can
speak without the necessity of going to jail. Indeed if my
clients, if this Court were to uphold this statute at 6:00
o'clock this afternoon, my clients would be in jeopardy for
speech that they engaged in at 6:15, in jeopardy of
imprisonment.
It is also a very peculiar criminal statute in one
other respect. The statute says that the defenses change as
technology changes. Now, Mr. Ennis will primarily be
addressing the offenses, but I'd like to highlight this one
part of the defenses.
It is surely an odd criminal statute that behavior I
engage in today is legal but tomorrow will be illegal because
technology has changed between today and tomorrow. It
suggests that I have to keep track of all current technology,
make sure I'm on top of the latest technology to make sure
that I have defended myself against this statute.
And I think that feature highlights what is an
important part --
JUDGE SLOVITER: What provision specifically are you
referring to in the statute when you say the statute says
that?
MR. HANSEN: Subsection E says it is a defense to
engage in reasonable and effective and so on measures in
order to preclude minors from having access to this, to the
material. It says reasonable and effective measures under
current technology. And indeed both amici and the Government
make much of the notion that technology is rapidly changing
in this area and what is not possible today may become
possible in the future. Indeed I expect Mr. Ennis will spend
considerable time talking about how the Government's
essentially conceding that the defenses are not really much
available today, instead the Government is relying on its
hope the defenses will be available in the future.
But what this highlights, to me anyway, is the
nature of the medium that we're talking about because even if
we were talking about a criminal statute applicable to
constitutionally protected speech in the context of broadcast
or in other contexts, if we're -- if we're worrying about CBS
having to face those kinds of problems, CBS is -- and NBC,
there are a limited number of speakers in the context of
television and they have batteries of lawyers and they have
batteries of people who review programs before they go on the
air.
In this case we're talking about the most democratic
means of speech yet devised. It is an area of a medium where
all of us can be both speakers and listeners, where entry
into the marketplace of ideas is simple, is relatively
inexpensive and it makes all of us as powerful as CBS news.
My Webpage can be seen by just as many people as CBS
News' Webpage. In that context it is difficult -- we have to
remember we are then calling upon every single American to be
able to define the exact parameters of vague--of the statute
here, the exact parameters of indecency, the exact parameters
of patent defensiveness.
Every single American may, as Mr. Olsen suggested,
have to hire their own lawyer to determine what the precise
contours of those phrases are.
It is because of the evolving and democratic nature
of this medium that the use of the criminal statute in this
context is a particularly onerous method of dealing with the
problem here.
JUDGE SLOVITER: What is the problem?
MR. HANSEN: Well, Congress perceives the problem to
be that minors are obtaining access to material that are
inappropriate for minors to be obtaining access to. In our
view, Congress has not made out evidence that that problem
does exist. In the examples, for example, and Mr. Schmidt
provided us with a lot of examples of the kind of speech that
the Government asserts is at issue here. Much of that
speech, in our view, would be encompassed within already
existing criminal prohibitions of either obscenity or child
pornography. Indeed --
JUDGE DALZELL: Which I take it everybody agrees is
entitled to absolutely no protection, obscenity and child
pornography, that's established, correct?
MR. HANSEN: I think the Supreme Court has been
crystal clear that that is established, that's correct.
JUDGE DALZELL: Okay.
MR. HANSEN: And indeed Senator Exon, the sponsor of
this statute, waved around, and indeed I think successfully
waved around on the floor of the Senate what he called the
Blue Book. And the Blue Book consisted of pictures even more
extreme than those you saw in the Coppolino book during the
testimony stage, pictures that under any -- I think under
most people's definition would be considered obscene.
But we're not talking about obscene speech here.
None of the plaintiffs is challenging prohibitions against
obscene speech or against child pornography, we're talking
about something that is outside the definition of what
obscene speech is.
And the -- the issue of whether the two phrases,
indecency and patent offensiveness, are either vague or
overbroad. It turns out after a careful reading of the
Government's brief and the amici in support of the Government
to be a fascinating case.
JUDGE SLOVITER: Do you understand the two phrases
to be different or the same?
MR. HANSEN: I understand the Government to be
arguing that the two phrases are the same. I don't think
that argument necessarily makes sense. I mean we -- the
normal rule of statutory construction is that when the
Congress uses two different clauses or words, it means to
convey two different concepts.
JUDGE DALZELL: Yeah, but when the conference
report specifically references Pacifica and Sable as the
source of meaning for those, doesn't the Government have the
better of the argument? Well, I'm not deciding the
consequences of this but as a matter of statutory
construction that the terms "indecent" and "patently
offensive" are interchangeable?
MR. HANSEN: Well, there's no question that the FCC
has defined -- has defined indecency using some of the patent
offensiveness clause that is contained in the Communications
Decency Act.
There are slightly different wrinkles.
JUDGE DALZELL: Right, and your point is that if
they'd had the better of the argument if that case was
applicable to this situation, I suppose.
MR. HANSEN: Well, that's -- that's absolutely true.
And they'd have the better of the argument if this medium
were identical to the broadcast medium. The Government also
says that indecency and patent offensiveness mean different
things in different media. And so I'm not sure we can easily
borrow from the other media.
JUDGE DALZELL: But don't we run into trouble since
the patently offensive locution comes verbatim out of Supreme
Court cases, wouldn't it be a bit of a leap for the three of
us who at last report are not on the Supreme Court to say oh,
that's unconstitutionally vague?
MR. HANSEN: No, I don't think it would be a leap at
all. I don't think the Supreme Court has ever found that
that phrase -- either of the two phrases at issue in this
case are not vague. The closest the Supreme Court has come
to commenting, if you will, on the vagueness of the patent
offensiveness phrases is Pacifica, the seven dirty words
George Carlin monologue case.
The Court in that case specifically does not reach
the vagueness question, instead all they say is that in the
context of this monologue, this monologue is punishable. We
agree that it is legitimate for the FCC to regulate this
monologue, to make it go at three in the morning instead of
three in the afternoon. They don't reach the question of
whether the FCC's definition of either indecency or patent
offensiveness was unconstitutionally vague.
In addition to that, as I was suggesting a minute
ago, we have some evidence from the Government in this case
that the definition of indecency and patent offensiveness in
the medium of cyberspace is different than its meaning in
broadcasting. I don't -- I'm not sure I can understand --
JUDGE DALZELL: But that's not the Government. What
we have to look at, I mean how Mr. Coppolino and his
colleagues interpret it is one thing, what we have to
interpret as a law that Congress adopted and with all
deference to Justice Scalia's views of statutory
construction, you know, if we look at the conference report,
et cetera, that's what we look at to find a meaning, not the
Government's brief, isn't it?
MR. HANSEN: Oh, I think that's -- I think that's
exact. I think first, with deference to Justice Scalia, I
think you first look at the language of the statute, but I
think the conference report -- I agree with your Honor, the
conference report provides useful information in helping to
interpret the language of the statute.
But I think there's one other thing that can be said
about the depth -- the vagueness or lack of vagueness of the
definition of indecency or patent offensiveness, either one,
and that is I think we've come a long way since the Pacifica
decision in terms of finding out whether we can accurately
define what indecency means.
And this case, and the repeated citation to the FCC
definitions of indecency I think is the most vivid example
that whatever we were predicting in Pacifica we were going to
be able to do, that is narrowly and tightly or precisely
define vagueness, we've now learned we can't do it. And this
case provides any number of examples of why that's the case.
For example, the -- as the Court is aware, the
obscenity test, the Miller test, includes patent
offensiveness as well, but it also includes the element that
the speech be prurient and it also includes the element that
the speech have no serious value.
Well, in this case the Government hints at the
notion that those concepts are somehow embedded in our
definition of either indecency or patent offensiveness. They
don't ever explicitly say that and in fact at some points
they seem to back away from it, but they certainly hint at
it.
The FCC has found that prurience is not a necessary
part of either indecency or patent offensiveness. Indeed the
George Carlin monologue itself, it's hard to see how anyone
could find it prurient. You might find it humorous or you
might find it unhumorous, there are a lot of things you might
say about it, but it's hard to see how anyone would be turned
on by the George Carlin monologue.
So if we're in fact looking to the FCC or looking to
prior cases as to what indecency means, I think we have to
reject the Government's notion to suggest that somehow this
case is about prurience. What --
JUDGE DALZELL: But both sides have cited a lot of
FCC decisions, very helpfully. One that I thought was rather
interesting that I take it neither your organization nor the
party involved thought to take to the Supreme Court was this
very interesting case, Merrill Hansen, spelled the same way
as your surname. I don't know, any relation?
MR. HANSEN: No relation, no relation, your Honor.
JUDGE DALZELL: Okay. Where the two -- where the
two disc-jockeys were talking about the Playboy article
involving the alleged rape by Jim Baker of Jessica Hahn and
even though the Commission agreed that it was newsworthy and
I must say, reading the transcript myself, it seemed to me
that the disc-jockeys who may have started out thinking they
were going to make a joke of it, and when they found out at
least in their view that Ms. Hahn really was raped. And they
said hey, this is really serious, this is bad stuff. Okay?
Sounds to me like pretty constitutionally protected
discussion of a public figure and the Commission says,
acknowledging that it was newsworthy at the time, that the
merit of the work is simply one of many variables and held
that it was appropriate to fine them a forfeiture of $2,000
for that.
Now, nobody said, nobody said a constitutional boo
to that decision, did they?
MR. HANSEN: Well, somebody should have. But as far
as I know, no one did.
JUDGE DALZELL: But after Pacifica, could you say
boo?
MR. HANSEN: Oh, I think absolutely could. I think
that is the -- that case is one of the most perfect examples
of how we have now learned that the effort we started, the
road we started down in Pacifica to define indecency isn't
working. I mean, the Government in this case suggests that
there's some sort of serious value component to patent
offensiveness and indecency. But then, as your Honor quite
properly suggests, the FCC rejects the notion that there's a
serious value component.
And if we put back into indecency or patent
offensiveness prurience and serious value, we've recreated
the definition of obscenity. We then no longer need the
concept of indecency.
JUDGE DALZELL: But if you're right, wouldn't we
have heard some echo in Sable, for example, some quibbling in
Sable? I mean I agree with you that Pacifica has been
narrowed over time, but notably it hasn't been narrowed on
the indecency point. Wouldn't you agree with that?
MR. HANSEN: No, I'm not sure I would agree. I
think there has continued to be ferment in the --
particularly in the lower courts at least about the question
of whether these, these clauses can be properly defined and
whether they are vague or overbroad.
For example, in Alliance, which was argued recently,
one of the issues lurking in Alliance -- it may not be
reached by the Supreme Court because the Supreme Court's
dealing with --
JUDGE DALZELL: I know, we talked about that though
and I think we've all reviewed the transcript and the word
indecency didn't even come up.
MR. HANSEN: No, but --
JUDGE DALZELL: So we shouldn't hold our breath for
that decision, should we?
MR. HANSEN: No, and I don't think the Supreme
Court, I suspect the Supreme Court won't give us guidance on
that in that case, but my point is that the issue of whether
the concept of indecency or patent offensiveness is
unconstitutionally vague remains in ferment. We in fact cite
some lower court cases that in some context have found that
those kinds of clauses are in fact unconstitutionally vague.
It is fair to say that some, there are courts that
have said that given Pacifica we are going to say that that
issue is foreclosed, but we think it's by no means.
JUDGE SLOVITER: In a criminal context?
MR. HANSEN: No, and indeed --
JUDGE SLOVITER: Has there been any criminal case
that has sustained, that you know of, let's say any Federal
criminal case that has sustained the use of indecency?
MR. HANSEN: No. We looked very hard for it. As
far as I can determine there is only one other place where
indecency or patent offensiveness, there are two, where
they're a crime as opposed to some sort of regulation,
broadcast and the Dial-A-Porn context, we looked very hard to
see if any in the last 20 or 50 years anyone had ever been
either charged or convicted of indecency in any of those
contexts. We were unable to find a single example.
We found a couple of cases in which people have been
prosecuted for a statute that said you may not engage in
obscene or indecent speech, the case seemed to go -- the case
explicitly went off purely on the obscenity issue, but we
found no example of a crime.
And indeed in Pacifica the Court suggested that the
reason they were able to reach out and find the Carlin
monologue on acceptably -- acceptable to channel it to some
other part of the day, one of the reasons they were able to
do that was because it was a regulatory context and not a
criminal context. They explicitly suggested that they might
have reached a different result.
JUDGE SLOVITER: Now, this is your vagueness
argument --
MR. HANSEN: Correct.
JUDGE SLOVITER: -- that you're in. Okay. You're
going to get to your First Amendment -- I mean to your over-
breadth argument?
MR. HANSEN: Absolutely, although I think they --
yes, absolutely. Although I think they are -- it's difficult
to pull them apart. It's certainly analytically possible to
pull them apart.
JUDGE DALZELL: It's easy to do that, isn't it?
MR. HANSEN: Well, but --
JUDGE SLOVITER: You have different constitutional
provisions.
JUDGE DALZELL: Yes.
MR. HANSEN: But the facts that are sort of relevant
to them are identical. For example, if you assume that
prurience is no longer part of the definitions here or -- and
if you assume that this act, these two phrases do include
material of serious value, then I think it presents you
right, flat out the issue of whether we now have an over-
breadth problem, that is whether we are now reaching speech
that is constitutionally protected for adults that has
serious value, that although it is about sex is not about
prurience.
I think that -- I think we're flatly presented with
the question of whether the Congress can criminalize such
statutes.
JUDGE DALZELL: See, you may be right on the -- as
an abstract question, if you were righting a law review
article about what the vagueness rule should be here, but my
two colleagues and I, because we're not the Supreme Court,
have got to, as best we can, limit existing Supreme Court
precedent and apply it here.
And I have to tell you, Mr. Hansen, that I haven't
found a hint in the Supreme Court's jurisprudence. You may
well be right that they will say criminal is different, but I
haven't seen it yet. This may be the case where they do it,
but our problem is we have to apply the Supreme Court's
jurisprudence as it exists today on May 10th, 1996, not as it
may apply because of your successful advocacy in the Supreme
Court, wouldn't you agree?
MR. HANSEN: Oh, I certainly agree with that. But I
think that in forming your decision you can say to the
Supreme Court, you can establish the factual record with the
Supreme Court that we've looked at this particular statute
and these particular phrases and what we have found is that
the people involved in trying to help us define what they
mean have not been able to define them for us.
I mean let's talk about some of the testimony that's
come out. The -- Mr. Schmidt who says that it would be
indecent or patently offensive, the Vanity Fair cover would
be indecent or patently offensive, Mr. Olsen who says that
Playboy is indecent or patently offensive and that all the
dirty words are indecent or patently offensive, the FCC which
says the crude jokes are patently offensive.
On the other hand, and morality in media, one of the
amici in this case which says that the discussion of gay
rights in some parts of cyberspace is patently offensive or
indecent.
On the other hand we have the Government suggesting
that discussion of gay rights is not patently offensive, but
the facts in this case suggest --
JUDGE DALZELL: But doesn't that --
MR. HANSEN: -- we don't know how to define these
terms.
JUDGE DALZELL: But the problem with that is doesn't
your argument ultimately prove too much because the indecency
in patently offensive locutions, some of the patently
offensive locution comes right out of the Miller
jurisprudence.
And, for example, you've spent a good deal of time
arguing with a good deal of force, I think, about the
different community problems because it's one thing to
broadcast in a local area, but cyberspace, once something is
on it, it's there world wide. But if we take that argument
to its logical conclusion, we're going to read out the
obscenity definition of Miller, aren't we?
MR. HANSEN: No, I think because I think obscenity
in Miller benefits from the interplay of all three factors.
I think if obscenity in Miller were just patent offensiveness
I think we would be having trouble.
JUDGE DALZELL: No, the community issue because--
MR. HANSEN: Oh.
JUDGE DALZELL: -- because the patent offensiveness
also has the limiting phrase by contemporary community
standards and that of course also comes from Miller.
MR. HANSEN: Well, that's one of the ways in which I
think the application of this -- that particular phrase to
this statute presents us with particular problems. I mean in
Miller we know pretty much now that the community standards
applies to local community standards. In this case we've got
a whole series of proposals about what community standards
means. We don't know for sure whether it's national
community standards or local community standards. The
Government's witness suggested it was local community
standards, the conference report suggests it's national
community standards.
JUDGE SLOVITER: Can we decide this case on the
preliminary injunction phase of it without reaching the
vagueness issue?
MR. HANSEN: Sure, yes, absolutely you can.
JUDGE SLOVITER: Because you haven't told us how
yet.
MR. HANSEN: Well, I think there are two ways that
you can. I think one is -- and one is the over-breadth which
you've now pushed me to a second time and I'll now go to --
(Laughter.)
JUDGE SLOVITER: I don't even see a timer here. Do
you have a timer?
JUDGE DALZELL: We have the clock, Judge Sloviter.
JUDGE SLOVITER: Oh, well, I don't follow that.
JUDGE DALZELL: I've been watching it.
JUDGE SLOVITER: Yes, I'm used to yellow lights and
green lights.
MR. HANSEN: I may not have got it the first time,
your Honor, but I got it the second time.
(Laughter.)
MR. HANSEN: And the other way I think you can,
before I go on to over-breadth, the other way I think you
can --
(Laughter.)
MR. HANSEN: -- is what Mr. Ennis is going to talk
about and that is the whether it's technologically or
economically feasible to comply with the statute.
If the statute is read to include material that is
valuable both for adults and for minors --
JUDGE SLOVITER: We have to read the -- we have to
read the statute the way it's written, don't we? We'll talk
to the Government about its effort to change the statutory
language but our problem right now is not what the Supreme
Court is going to do because the Supreme Court may surprise
us all and not take this case. We have an obligation to
decide the case in front of us.
Now, on what is the narrowest ground on which we can
decide this preliminary injunction issue?
MR. HANSEN: Well, I'm not sure I know what the
narrowest way is.
JUDGE SLOVITER: All right.
MR. HANSEN: But I think you can say that the act,
as written, reaches speech that is constitutionally protected
both for minors and for adults. I think the first question
is whether it reaches speech that is constitutionally
protected for adults, I don't think there's really any
serious dispute about that. I also don't think, as for the
reasons Mr. Ennis will be discussing, I don't think there's
that much serious dispute that an awful lot of adults are
going to be precluded from obtaining access to this kind of
speech as a result of this act.
I mean just to take the most simple example, if we
accept the credit card screening mechanism that the
Government suggests, there are an awful lot of adults that
don't have credit cards and that won't be able to obtain
access to speech that is constitution-- they're
constitutionally entitled to get simply because they don't
have a credit card.
I mean it reminds me of one of the exhibits the
Government suggested in which they said that every 15 year
old in America is computer literate. Well, there are 15 year
olds in America that aren't literate, much less computer
literate. Similarly, there are adults that don't have credit
cards and under this scheme won't be able to obtain access to
this information.
So the first issue and the issue where you can stop
if you reach this issue is whether this will prevent adults
from having access to information that they are
constitutionally entitled to. It's the Butler argument, it's
the Sable argument. That is that what we have done in this
context is we have, in the guise of protecting children,
we've prevented adult, we've required that all speech be
brought down to the level acceptable to the most vulnerable
minor.
But if that, if you are unpersuaded by that part of
the argument, then I think you also have to go ahead and
reach the question of whether the speech in this case is
protected from minors as well as for adults. It is clear
that minors do have rights to speech, it's clear that minors
do have rights to obtain access to speech.
In this instance what we have is a huge volume of
speech that the undisputed testimony shows is valuable for
minors. And let me take a couple of the most obvious
examples.
The safer sex information is probably the most
obvious example. The exhibits in the record and the
testimony from the witnesses indicate that a great many
minors, particularly older minors, are in fact sexually
active. Whether we like that or not is irrelevant, the fact
is that they are sexually active. And in order to protect
themselves from diseases including the fatal disease of AIDS,
in order to protect themselves from pregnancy which is of
course a constitutional right for minors as well as for
adults, it is important, it's not merely -- it's vital that
they obtain access to the kinds of speech that my clients
engage in.
JUDGE SLOVITER: How do you answer the Government's
argument that the act couldn't possibly be read to apply to
information of that sort?
MR. HANSEN: Well, I think there are -- I think the
answer to it is embedded in the colloquy Judge Dalzell and I
were having, that is this act prohibits speech that has
serious value. The Government's suggesting really that this
case is really just about pornography, it's just about
really, really sexually explicit stuff. Well, it's not about
obscenity, it's not about that level pornography, it's not
about prurience because prurience is not an element of this,
not a necessary element about this and it's not about serious
value because speech that has serious value is punishable
under this statute.
Well, if that's the case, it seems to me safer sex
information is most certainly at jeopardy under this statute.
JUDGE SLOVITER: The Government suggests that we
read this in the context of a conference report, is that
correct?
MR. HANSEN: Correct, yes.
JUDGE SLOVITER: But didn't the conference report
specifically exclude a deletion of serious value?
MR. HANSEN: No, it's the other way around. The--
one of the --
JUDGE SLOVITER: It excluded, didn't it exclude,
wasn't there an effort to put in an exclusion from the
statute for --
MR. HANSEN: Oh, yes.
JUDGE SLOVITER: -- I used my words -- I thought I
used my words carefully.
MR. HANSEN: Yes, I'm sorry. The --
JUDGE SLOVITER: There was an effort to exclude from
the scope of the statute --
MR. HANSEN: Matters of serious value. That is
there was an effort to make --
JUDGE SLOVITER: If you haven't, I mean, isn't --
MR. HANSEN: Yes, your Honor.
JUDGE SLOVITER: -- that important? And why don't
you stress that in the argument.
MR. HANSEN: Okay.
(Laughter.)
MR. HANSEN: Yes, the one -- one member of Congress
proposed that the statute substitute, harmful minor statute
be substituted for the indecency and patent offensiveness.
JUDGE SLOVITER: That's a separate issue.
MR. HANSEN: Well, harmful to minors includes
prurience and includes value. Congress explicitly rejected
that alternative and both for the reasons you suggested and
for the reason I'm now suggesting, Congress made, I think,
crystal clear that value is part of this statute. And if you
engage in speech that is about sex, even if it has value, you
risk going to jail under this statute.
JUDGE DALZELL: I would like to know because --
well, you've got about ten minutes left on this. Let's
assume we and/or the Supreme Court agree with you and the CDA
is held unconstitutional. So Senator Coates and Senator Exon
come to you and say Mr. Hansen, you are obviously the right
person with Mr. Ennis to talk to, here's the pen, write me a
CDA. Could you write a --
MR. HANSEN: Somehow I don't think that will happen.
JUDGE DALZELL: Could you write a child a CDA that
passes constitutional muster?
MR. HANSEN: I'm not sure you could. I mean
Ginsburg suggests that a harmful to minors statute might well
be constitutional. The question then would be whether you
could apply that standard in the context of cyberspace and I
think the answer to that would, at least in large measure,
depend upon the ability to comply with the statute which is--
which is largely sort of the defenses issues that Mr. Ennis
is going to be addressing. My view is no, you could not.
JUDGE DALZELL: So therefore the issue really is
medium specific is what your argument is?
MR. HANSEN: Oh, there's no question that the issue
is medium specific. All the case law and the defendants
admit that whether -- that the rules are different from
medium to medium and that what may be, for example, indecent
in TV is not indecent here. What may be an accept --
constitutionally acceptable rule in the area of broadcast is
not -- may not be a constitutionally acceptable rule here.
JUDGE DALZELL: So your position is then that you
would give the pen back to Senator Exon and Senator Coates
and just say I'm terribly sorry but for this medium we can't
do it? Is that -- is that your position?
MR. HANSEN: Well, yes, I would say that and then I
would also say to Senators Exon and Coates: but I have a
better solution for you to the problem that you're troubled
about and that solution is the whole constellation of PICs
and Surfwatch and the other mechanisms that empower parents
to be able to prevent their children from having access to
indecent material and yet don't infringe on constitutionally
protected rights, either for children or for adults.
JUDGE DALZELL: And they say to you that's okay,
that's great, how do we make sure this happens, they say, we
want to give you a law to make sure this happens.
MR. HANSEN: I think my first answer would be relax
for a second, it's happening. I mean, you know, all of the--
we have considerable evidence that PICs is coming along, it's
going to be up very soon. We have considerable evidence that
AOL is work-- and the other on-line services are working
rapidly to improve and tighten and strengthen their parental
control mechanisms.
The attention that this act has gotten and that this
case has gotten has been enormous impetus toward people
finding those kinds of parental --
JUDGE SLOVITER: What level of scrutiny do we apply
to this statute?
MR. HANSEN: I don't think there's any question. I
think the Government concedes that this is -- that you have
to find -- in order to uphold this statute you have to find,
you have to apply strict scrutiny and you have to find that
there is no -- that it is narrowly tailored. Both
requirements have to be found here before this statute can be
upheld.
JUDGE SLOVITER: Have you commented on the narrow
tailoring?
MR. HANSEN: No, the narrow tailoring largely goes,
I think, to the defenses which I think Mr. Ennis is going to
address although there isn't --
JUDGE SLOVITER: What do you mean the narrow
tailoring goes to the defenses? Can't you have a free speech
case in which the statute doesn't have any written-in
defenses?
MR. HANSEN: Yes.
JUDGE SLOVITER: Isn't that part of the basic
concept of what we're supposed to do when we look at whether
something's protected under the first amendment?
MR. HANSEN: Yes, I think that -- I think that part
of the question is, is the definition of speech here
sufficiently narrowly tailored that it gets at the problem
that Congress was trying to get at and doesn't reach out and
get a -- and create other problems. And I think for the
reasons, all the reasons we've been talking about this
morning, I think this speech clearly does reach out to speech
well beyond that which the Government's professed interest
covers.
JUDGE BUCKWALTER: Mr. Hansen, I've been concerned
throughout this, my involvement in this, about the question
of this being media specific. And if it is media specific,
what is your position is the media it's most analogous to and
what is the Government's position.
But I don't want you to speak for the Government.
(Laughter.)
MR. HANSEN: Our position certainly is that if we
are to draw an analogy, print would be the appropriate
analogy because in this -- but I think we would suggest to
you that this is a medium different than all other media in
the sense of its democratizing and many to many qualities.
That is almost all the other media, with the
possible exception of telephone, is a relatively limited
number of speakers giving out information to a large number
of listeners. One of the real marvels of this medium is it's
making us all speakers and listeners and thus we think it's
entitled the highest protection because it enable-- it
empowers the most number of speakers.
JUDGE BUCKWALTER: Thank you.
JUDGE DALZELL: I want to get back for a second
because it goes, I think, to your over-breadth argument here
where you argue about that some minors, older minors should
be entitled -- for example, sexually active minors. But
doesn't that undermine -- you would agree that Congress
surely has the power to define who a minor is.
MR. HANSEN: Yes.
JUDGE DALZELL: And any definition it comes up with
is by definition one size fits all because if you get back
from that don't you drive the courts to determine, for
example, is this -- is 12 mature or is this child
sufficiently mature, this one's sexually active, this one's
not?
And so to avoid that kind of unedifying wildly
inefficient system, Congress as every legislature has the
inherent power to say who is a minor and who isn't. Isn't
that right?
MR. HANSEN: Oh, I think that's right, but I think
their definition of the minor in the context of this statute
has to bear some relationship to a valid governmental
purpose. That is, if they decided that a minor was 30, I
think we would all have little difficulty throwing that out
because we believe that there are 25 year olds who have, you
know, the sufficient maturity and sufficient need for the
kinds of speech we're talking about here that they ought to
be able to have access to it.
Similarly, I think, we can say given the nature of
the speech involved here and given the realities of the world
that drawing the line at 18 in this context approaches the
same level of irrationality in the sense that there are
certainly 17 year olds who have sufficient maturity and
sufficient --
JUDGE DALZELL: But isn't that an argument that you
should make to Congress and not to us?
MR. HANSEN: Well, I think it's --
JUDGE DALZELL: I mean could we say as a matter of
constitutional law that the -- that the drawing the line at
18 was so irrational as to violate, I assume, due process?
MR. HANSEN: Oh, I think you can. I think you can--
JUDGE SLOVITER: You want us to say the statute
would be constitutional if it was to 14?
MR. HANSEN: No, I don't want you to say that, but I
do -- but I do think --
JUDGE SLOVITER: Well, then I don't understand what
this argument goes to.
MR. HANSEN: The question is whether this statute is
reaching out to a great deal of information that basically
everyone concedes is valuable, at least for a large number of
minors. And if it is in fact speech that is valuable for a
large number of minors, not only not harmful but valuable,
then the statute is over-broad even as it applies to minors
and not just as it applies to adults. And I think that's how
I would use the question.
And I think --
JUDGE SLOVITER: Go ahead.
MR. HANSEN: I think there is some notion to the
fact that the Government, the Congress can draw some lines in
this area but where the line sweeps in large numbers of
minors who are appropriately, who ought to be appropriately
able to see this kind of information --
JUDGE DALZELL: Based on your reading of the
jurisprudence, how substantial does the over-breadth have to
be for it to cross the line of impermissibility?
MR. HANSEN: I think if it -- if more than a small
number of applications are involved then I think you have
substantial over-breadth. That is I think the over-breadth--
JUDGE DALZELL: What's your citation for that
proposition?
MR. HANSEN: I don't have one off the top of my head
but I'll have one by the time of rebuttal, if you'd like.
(Laughter.)
JUDGE DALZELL: Fair enough.
MR. HANSEN: I think the case -- the non substantial
over-breadth cases, the cases that say we -- there's
substantial over-breadth here --
JUDGE SLOVITER: It was in your brief and in the
ALA's brief.
MR. HANSEN: They're in both briefs and they talked
about the question -- it is possible to hypothesize a small
number of applications that might be constitutionally
protected and that's not what we're talking about in over-
breadth. And that's the line of cases I am drawing on for
the answer.
In our view the -- one of the crucial parts of this
case is that which we've just been discussing and that is the
nature of this medium here. We have what is a new medium, is
an enormously exciting medium, it is a democratizing medium
and it is an enormously evolving medium.
The testimony was undisputed that this medium is
changing on a daily basis and changing rapidly. This statute
not only infringes constitutional rights in the ways we've
talked about this morning but it also has the potential for
stifling this new and exciting and dramatic medium and in our
view this Court should find the statute unconstitutional.
JUDGE DALZELL: Thank you.
Shall we call Mr. Ennis?
JUDGE SLOVITER: Sure.
JUDGE DALZELL: Mr. Ennis?
MR. ENNIS: Good morning, your Honors.
JUDGE DALZELL: Good morning, Mr. Ennis.
MR. ENNIS: Bruce Ennis representing the ALA
plaintiffs.
I'm going to speak primarily about the Subsection E
safe harbor defenses to Subsection D's criminal prohibition.
To put it in context, I think that it's fair to say that
unless speakers can use the safe harbor defenses authorized
by Subsection E, then Subsection D standing alone would
constitute a flat ban on speech that is constitutionally
protected for adults.
JUDGE SLOVITER: Let me ask you a general
proposition, do you know of any criminal law that might have
been unconstitutional but for defenses that were put in? I
mean this, the whole proposition that you can
constitutionalize a possible over-broad or vague criminal law
by defenses is a new one to me but there may be examples out
there. Can you think of any?
MR. ENNIS: Well, Judge Sloviter, I think that's a
key question in our case. I'm not aware of any. There --
JUDGE SLOVITER: I guess it's a question for the
Government then, giving them advance notice.
MR. ENNIS: The closest I can think of that, your
Honor, are examples from broadcast and Dial-A-Porn but
they're not like this law.
JUDGE SLOVITER: But they're not criminal statutes,
are they?
MR. ENNIS: Well, both -- yes, they are both
criminal statutes.
JUDGE SLOVITER: Okay.
MR. ENNIS: Though the FCC has never sought or
obtained criminal sanctions in the broadcast area against
indecent speech. And --
JUDGE DALZELL: Well, although Pacific and Southern
Company, Incorporated, licensee of radio station KSD-FM, when
it got fined -- they called it a forfeiture of $2,000, smells
like a fine to me.
MR. ENNIS: Well, it certainly is and it's an
administrative fine, your Honor. All I'm pointing out is
that the Supreme Court stressed in its Pacifica decision that
it was not dealing with a criminal sanction.
JUDGE DALZELL: Quite right, you're quite right.
MR. ENNIS: But let me return to your question
because it is an important question. In every other medium
where Government attempts to regulate or criminalize
indecency, in every other medium speakers have a sure and
safe way of complying with the act, all speakers.
For example, in broadcast, speakers know that if
they broadcast the indecent material only in the evening
hours that are specified by FCC as okay for indecent
material, they are at no risk whatsoever of any governmental
statute.
In the dial-a-porn context which only regulates
commercial dial-a-porn, all commercial providers of dial-a-
porn can use a credit card which is a complete defense, all
speakers in the commercial dial-a-porn context have a sure
and safe and completely effective safe harbor. That is
emphatically not the case with respect to this act.
So it does raise the question you've asked, is there
ever an example in which you can ban speech and then put the
affirmative burden on the speaker to show with evidence and
an affirmative defense to a prosecution that their speech
somehow comes within a safe harbor and the answer is no.
JUDGE SLOVITER: Okay. And then in -- and of course
if the Government disagrees though we expect it will tell us,
but to whom is the safe harbor provision, the defense
provision available? Is it available for all of the persons
who might, individuals who might be held liable under A and D
or only some of them?
MR. ENNIS: Your Honor, the defense on its face is
available and in fact must be raised as an affirmative
defense by all of the millions of speakers who use the
Internet.
In reality, as I hope to show this morning, the
defense is not available to any speakers who use the Internet
except for commercial speakers who charge for access to their
speech. With that sole exception, not one of the so-called
safe harbor defenses can with any reasonable --
JUDGE DALZELL: Well, apparently those defenses are
merely evidence, as I understand Mr. Keeney's letter to our
colleagues in New York, right?
MR. ENNIS: That's at most what they are.
JUDGE DALZELL: At most evidence.
MR. ENNIS: Well, that's right, the Keeney letter--
JUDGE DALZELL: But it's still going to be up to a
jury to determine whether that carries today, right?
MR. ENNIS: That's correct, Judge Dalzell. The
Keeney letter says that at most, if a defendant takes the
steps the Government suggests, a speaker takes the steps the
Government suggests, at most that would be, quote,
"substantial evidence" which that defendant in a criminal
prosecution could then argue to a jury would qualify for the
safe harbor defense.
But it would be up to disparate juries throughout
the country.
JUDGE BUCKWALTER: But in a criminal setting the
burden would always be on the Government to prove that it was
not a good faith defense, it would never be upon the --
MR. ENNIS: You would think so, Judge Buckwalter,
but--
JUDGE BUCKWALTER: Or even in insanity.
MR. ENNIS: But that is not the way this statute is
set up, which was Judge Sloviter's question. This statute,
Subsection -- let me try and break it out.
JUDGE SLOVITER: Go ahead.
MR. ENNIS: If you start with Subsection D,
Subsection D flatly prohibits the display of patently
offensive speech in a manner that would be, quote, "available
to minors."
JUDGE DALZELL: Right.
MR. ENNIS: As we've shown in our proposed findings
of fact 855, we've collected all the evidence, there's no
dispute on it, you cannot display speech on the Internet in a
way that's broadly available to adults without that speech
necessarily also being broadly available to minors.
So what that means is if you just look at Subsection
D by itself, Subsection D criminalizes the display of speech
on the Internet that would be broadly available to adults
because it necessarily would be broadly available to minors
as well.
Thus unless the Subsection E safe harbor defenses
narrow the sweep of Subsection D, Subsection D would quite
clearly be unconstitutional under Bolger, under Sable and
under Butler, all of which unanimously hold that Government
cannot constitutionally ban speech to adults even for the
purpose of protecting minors.
JUDGE DALZELL: Sure. And what did the trick in
Sable was the defense.
MR. ENNIS: It was the defense.
JUDGE DALZELL: And that's what Congress did, at
least what Congress thought they were doing. Isn't it fair
to say what Congress thought they were doing in this statute
was they reached into Pacifica and they reached into Sable
and they threw it in to the CDA and they said it's got to be
constitutional because the Supreme Court says so.
MR. ENNIS: Exactly right, Judge Dalzell.
JUDGE DALZELL: Isn't that a fair characterization?
MR. ENNIS: That is completely fair. The
legislative history bears that out. Congress thought --
JUDGE SLOVITER: What about the use of the word
"knowingly?" Throughout this long proceeding I haven't heard
anybody focus on the fact that Subsection D to which you
refer specifically makes criminal only that which is
knowingly sent to persons under 18 and knowingly permits
under Subsection 2. Wouldn't that be part of the
Government's required case in chief and what does it mean?
MR. ENNIS: I'm not sure, the Government would have
to tell you what that means. It's unclear to me what it
means.
JUDGE SLOVITER: But it's in there.
MR. ENNIS: It is in there and -- but and also is in
there for Subsection D, but for Subsection D --
JUDGE SLOVITER: It is D I'm talking about.
MR. ENNIS: On its face it would simply mean knowing
that you have displayed speech. If --
JUDGE SLOVITER: Don't you have to also know that
it's a person under 18?
MR. ENNIS: No, under D you only have to know that
you have displayed speech in a manner that is, quote,
"available" to a person under 18, whether anyone under 18
ever had access to the speech or not.
JUDGE SLOVITER: Well, then that's not A, you're not
talking about D(1)(A), you're talking about D(1)(B). And one
says knowingly. In other words, whoever in interstate or
foreign communications knowingly uses any interactive
computer service to display in a manner available to a person
under 18 is part of the Government's burden to show that you,
that the speaker or sender knew that there were people under
18 receiving it?
MR. ENNIS: I think that the fair inference from the
statute would be that that would be so, but I don't know what
the Government's position on that is.
JUDGE SLOVITER: Well, lots of times we have been
advised to construe a statute to construe the knowingly
language in such a way as to make the statute constitutional.
That's a construction that is consistent with the language of
the statute itself, we don't have to cut out any -- any
provision.
MR. ENNIS: Yes.
JUDGE DALZELL: Isn't your point that America On
Line, for example, or Compuserve has to know, they have to
know because they'd be stupid not to know that it is
available to people under 18 because there's no way of not
making it available to people under 18?
MR. ENNIS: That is the whole point, Judge Dalzell.
And if you make the speech broadly available to adults on the
Internet, if you wish to speak to the world, this speech will
necessarily be available to minors as well and you will know
that it is available to minors as well and therefore --
JUDGE DALZELL: And you won't be heard to say I
didn't know.
MR. ENNIS: Right.
JUDGE DALZELL: Mr. Burrington could not appear in a
courtroom in the District of Ohio where he's from AOL,
whoever Compuserve is, and say oh, I didn't know there were
people under 18. He'd be cut to shreds by Mr. Coppolino and
his friends on cross-examination, wouldn't he?
MR. ENNIS: That's correct. That's why Subsection D
bans display of speech in a manner that's available to minors
on the Internet. And your question was didn't Congress
simply think this is okay, we'll borrow the dial-a-porn
analogy? Unfortunately, Congress did not hold hearings on
the nature of the Internet and it did not focus on this
question. It thought that the dial-a-porn analogy would
work, it doesn't because the vast majority of speakers on the
Internet do not charge for access to their speech.
There is a small subset of speakers on the Internet
who do charge for access to their speech and those speakers
can, with the dial-a-porn analogy, require the presentation
of a credit card before they allow access to their speech.
It is a defense for that small subset of speakers.
JUDGE DALZELL: Therefore your argument goes
perversely the CDA if it were upheld, the people who could
easiest, who could comply with it the easiest are precisely
the pornographers.
MR. ENNIS: It's even more than that, your Honor.
That's correct but it's even more than that. The
pornographers, the commercial pornographers who are charging
for access to their speech were requiring credit cards before
this act was passed. They would continue to require credit
cards if this act were enjoined, they would continue to
require credit cards if the act were repealed. This act does
nothing to protect minors from the commercial speech by
commercial purveyors of sexually explicit speech because they
already require credit cards.
What the act does instead is to burden the huge
range of non-commercial speakers on the Internet and say to
them you cannot make your speech available for free to the
world unless you carry the affirmative burden of coming
within the safe harbors.
There are only three possible types of safe harbors
the Government has suggested and none of them can be used by
non-commercial speakers. The three categories I think can
usefully be thought of as falling into three groups. One is
called charging, another would be called screening and a
third would be called warning. I think that's a fair way to
think of these.
We just talked a little bit about the charging. You
can charge for your speech on the Internet but the evidence
is undisputed that the only speakers who can use, require a
credit card before giving access to their speech are
commercial speakers who are actually charging for their
speech.
Credit card companies simply will not verify credit
cards for non-commercial transactions, they don't do it.
Therefore if I have a Webpage and I want to make my speech
available for free, I don't have the option of using the
verified credit card defense. No credit card company will
verify it. And that's true for the vast majority of speakers
on the Internet.
So we can forget charging as a safe harbor defense
for most speakers. That brings us to screening. Screening
requires two things: screening the content of the material
to decide which material would be inappropriate for minors
and therefore would have to be segregated into a different
area and then would require screening for age, so that when
people attempt to access the material that is the adults only
material, you would be able to determine whether the person
attempting to access the adult material was an adult or a
minor.
The evidence is quite clear on that that you cannot,
there's no technological way to screen for age based on
current available technology, it simply can't be done. And
in huge areas of the Internet News Groups, IRC Chat, lists or
mail exploders, it is technologically impossible for the
speaker to get an adult ID number or a credit card number, it
can't be done.
And I want to emphasize something here because we've
spent most of the time in this case talking about Webpages
and the World Wide Web because that's a popular way of
speaking on the Internet. We haven't spent as much time
talking about News Groups, Chat Rooms and mail exploders for
the very good reason that there's no dispute that the safe
harbor defenses can't be used in those areas, credit card and
adult access codes can't be used on those areas.
But the important point is those are huge areas of t
he Internet. There are hundreds of thousands of messages a
day that are posted to News Groups. So we've concentrated a
lot on the World Wide Web, but when we realized that this law
bans speech in all those areas of the Internet, we're talking
about substantial number of applications.
The third possible way of coming within a safe
harbor is the Government has suggested there are really two
ways to --
JUDGE SLOVITER: Can you go back to the one before
for a minute?
MR. ENNIS: Sure.
JUDGE SLOVITER: You argue that screening becomes
ineffective or unusable because of the need for a common
gateway interface? Could you -- I think you argued that in
your brief?
MR. ENNIS: Well --
JUDGE SLOVITER: Would you just bring us into that,
explain why that is?
MR. ENNIS: The reason that is in news groups, chat
rooms and list services is there is no simultaneous
communication between the speaker and the listener and the
listener has no way of communicating directly with the
speaker. So it's not possible to transmit the adult ID code
or the credit card number in those mediums of communication.
On Web sites it is possible, it is theoretically and
technologically possible for the speaker and the listener to
communicate interactively.
JUDGE SLOVITER: The big companies don't use comment
room except common gateway interface. Am I misreading the
testimony?
MR. ENNIS: No, you're -- you're completely correct,
Judge Sloviter. I was just trying to explain that in Web
sites in general it is possible to have that kind of two-way
exchange of information to send adult ID codes and credit
card numbers back and forth, but for all of the Web sites
that are offered by the major on-line service providers,
those Web sites do not have the CGI common gateway
interference script capacity that is needed to have that
dialogue, so those Web sites can't do it.
The only Web sites really that can do it are
separate commercial Web sites that are set up by commercial
providers of sexually explicit material. And they do it and
they require credit card payment.
JUDGE SLOVITER: Okay, you were going to your third,
the warning.
MR. ENNIS: The third is give warning. The
Government suggested there are basically two ways of coming
within this safe harbor defense and that is to tag your
speech, to self label your speech in some way as
inappropriate for minors or to register your speech with the
Internet Yellow Pages or with one or ten or fifty of the 200
and so additional directories of Internet listings.
JUDGE DALZELL: Are we to take that point seriously
in light of what's happened to Compuserve? Because they did
take it and with that service that's in question that you
brought to us, to our attention, it is, it says it's adult,
it's tagged. But it didn't prevent the headlines to
Compuserve in the Ohio newspapers and I'm sure that ruined
their day, don't you think?
MR. ENNIS: I think it --
(Laughter.)
MR. ENNIS: I think it -- I think it more than
ruined their day, your Honor. If you're a commercial on-line
provider and there are headlines around the country saying
you're being investigated or reviewed or whatever the word is
for being a purveyor of pornography to children, you're not
going to sign up a whole lot of new subscribers that day or
for many days to come. It more than ruined their day.
The -- I think you're right. We can't take --
JUDGE DALZELL: I mean that suggests to me, and of
course I'm going to ask our friends on the other side about
this, are they really serious about these defenses? Because
that material was tagged, it had a warning.
MR. ENNIS: It had a warning and it not only had a
warning, it was within the proprietary service and it said
you can click this button and that material is not available
to any minors in your household.
So not only was it tagged, not only was it in a
separate directory, it also came packaged with a completely
effective parental control device. Even so, that matter was
referred on to the FBI.
Now, the Government can't seriously argue that
tagging or putting your name in a registry would constitute a
safe harbor defense. The most they've ever argued in their
brief is that it, quote, "might qualify."
And the Keeney letter says at most it's substantial
evidence and it's only substantial evidence if the evidence
of tagging is coupled with, quote, "evidence that the
marketplace of browsers are actually screening for that
particular tag."
There was testimony at trial that that is
technologically impossible today. It is not technologically
impossible today for speakers to know, to have evidence
whether the marketplace of browsers are actually screening,
so it's an evidence that's totally impossible to provide.
JUDGE SLOVITER: Well, what -- I find both your
position and the Government's position somewhat inconsistent
internally. You say you should, you have a better
alternative and that is to have parents do it via Surfwatch
and groups like that and yet you argue that the Government's
tagging system is not effective, nobody said it's really
working yet. The Government says its tagging system is the
one that we should use but yours is not working and
effective.
Now, either there is a potential tagging system for,
workable tagging system for both parties or there isn't. The
evidence shows that there was some success by Surfwatch but
minuscule really in the totality of the Internet.
What is your position as to why your position is not
inconsistent?
MR. ENNIS: I understand your question, your Honor.
It is a complicated question, let me try to explain that. In
order to explain it, I have to back up a half step.
JUDGE SLOVITER: Go ahead.
MR. ENNIS: And indicate that even if a speaker tags
or puts their -- registers with a registry, all it does is
warn listeners, give them notice of the nature of the speech
so that if they wanted to block the speech and had the
software capacity, they could do so.
But the Government's experts agree that without the
cooperation of the end user with people down the
communication chain, merely tagging speech or registering it
in a registry does nothing whatsoever to prevent access to
that speech by minors. In fact, using search engines minors
can more easily gain access to that speech.
JUDGE SLOVITER: Then why do you rely on Surfwatch
and groups like that to say that is a least restrictive
alternative?
MR. ENNIS: Well, let me explain that, your Honor.
What's wrong with the Government's tagging proposal is it is
completely dependent on end users, parental responsibility,
or it won't shield a single minor from anything.
JUDGE DALZELL: But so is PICs.
MR. ENNIS: Yes, yes, it is, but there's a diff--
here's the difference, your Honor. If the parent is going to
be a responsible parent and is going to take steps to protect
their children, with PICs, the parent can set the PICs
browser so that it will not allow access to any speech on the
Internet unless the speech has been rated as appropriate by a
third-party bureau the parent knows and trusts.
That would completely protect minors from
inappropriate material without requiring speakers to self-
label or tag their speech at all.
JUDGE BUCKWALTER: And that's the essential
difference --
MR. ENNIS: And that's the essential --
JUDGE BUCKWALTER: -- in a nutshell.
MR. ENNIS: It is.
JUDGE BUCKWALTER: You don't want the speaker to
have to do anything and the Government wants the speaker to
have to make some judgment.
MR. ENNIS: That's the point, your Honor.
JUDGE BUCKWALTER: Okay.
MR. ENNIS: That is exactly the point because the
Government --
JUDGE SLOVITER: Are PICs currently working?
MR. ENNIS: Actually, the press reports yesterday
indicated that two days ago the final PIC standards are out,
it will be working in July.
JUDGE SLOVITER: All right. We don't have any, I
think we have to rely on the evidence that was before us. We
don't have any evidence that PICs is currently working.
JUDGE BUCKWALTER: Well, we --
JUDGE SLOVITER: Well, wait a minute, could he
answer my question first?
JUDGE BUCKWALTER: Right.
JUDGE SLOVITER: You can -- go ahead. And, yeah,
it's directed to him.
MR. ENNIS: Well, that's right and that's evidence,
what that means is that PICs isn't working to block the
Government's tags either, so that there's no safe harbor
today, even if speakers use the Government's L-18 pack.
JUDGE DALZELL: But didn't Mr. Vesser who's from the
Worldwide Web consortium, didn't he tell us that PICs would
be operational in three to six months?
MR. ENNIS: Yes, it will be.
JUDGE DALZELL: But that is in the record.
MR. ENNIS: Yes. Probably in June or July it will
be operational. There are -- there are --
JUDGE BUCKWALTER: Mr. Ennis, let me get back to the
point here, at this point, and then -- it might be the right
time to get back to it. You gave a little bit of short
shrift and I'm sure not intentionally to my talking about
burden of proof here. Burden of proof may not be important,
I'm not sure yet, but isn't the burden of proof always going
to be on the Government in a case like this to prove that the
defendant has not -- the burden's not going to be on the
defendant to prove his safe harbor is effective, it's going
to be on the Government to prove that it's not effective.
MR. ENNIS: I'm afraid not, your Honor.
JUDGE BUCKWALTER: Because it's like a defense of
insanity. I mean you can arrange a defense of insanity but
the Government has to prove you were sane, you don't have to
prove you were insane.
MR. ENNIS: Well --
JUDGE BUCKWALTER: And isn't that the same analogy
here?
MR. ENNIS: It's been a long time since I looked at
the insanity defense but my recollection is the Government
has to prove you had the mental intent to commit the crime
but you bear the burden of establishing insanity defense.
JUDGE BUCKWALTER: No, no, well, I don't -- that's
a -- that isn't really what you and I have here. I think the
same is true in a consensual defense to rape, for example.
You may raise that defense but the Government has the burden
of proving it was non-consensual. You don't have any burden
to --
MR. ENNIS: Well --
JUDGE BUCKWALTER: -- to prove it was consensual.
So I mean in this, so in this --
MR. ENNIS: Your Honor --
JUDGE BUCKWALTER: -- context of criminal law --
MR. ENNIS: Let me say that --
JUDGE SLOVITER: Why don't you wait till the rest of
the question, the rest of Judge Buckwalter's question came
out.
JUDGE BUCKWALTER: Yeah, I was going to say in the
context of criminal law isn't the burden going to be on the
Government here? Once the defendant raises the fact of well,
I tried to do this and this is what I did, he doesn't have to
prove that was effective, the Government has to prove that it
was not.
MR. ENNIS: Your Honor, I would hope so. That's not
my understanding of the Government's position, but it doesn't
matter.
JUDGE BUCKWALTER: I'll talk to them about that.
MR. ENNIS: It doesn't matter because even if the
burden is on the Government, still the speaker can have no
assurance whatsoever that if they take the steps the
Government suggests they will surely and safely have a safe
harbor, even if the burden is on the Government to prove that
the steps were not effective rather on them to prove that the
steps were effective, they are still at risk of losing that
battle in front of a jury. And it could be any jury in any
community in America.
Therefore, no prudent speaker --
JUDGE BUCKWALTER: Yeah, well, now I'm not exactly
sure I know where this burden of proof argument goes in this
whole scheme of things but I did want to discuss it.
MR. ENNIS: Well, I think it's a very important
point and the way I would say it is the statute is
unconstitutional, whether the burden is on the Government to
deal with the safe harbor defenses or the burden is on the
speaker. The unconstitutionality is compounded if the burden
is on the speaker.
But backing up to Judge Sloviter's question, there
are right now today through all of the major on-line service
providers ways to block access through Compuserve or Prodigy,
for example, to all speech on the Internet that the parents
don't want to come in or on America On Line to block access
to all areas of the Internet except the small areas that
America On Line has prescreened and put in their Kids Only
room as appropriate for children.
So there are end user capacities for everyone who
uses the on-line service providers to block access to the
Internet today.
The point I'm trying to make with this -- the
difference between the Government's proposal and ours is the
act, tagging and registering cannot possibly protect minors
unless parents acquire software that will read the tags and
then turn it on and use it.
If the parents do that, there is no need for the act
because they can block access to all inappropriate speech
even if no speaker ever self-labeled or rated their speech
and even if there had never been any act at all.
JUDGE DALZELL: Doesn't Dr. Olsen's proposal, the
minus L-18 proposal have at least one advantage over PICs, as
I understand the testimony? And that is with his tagging
proposal you could tag the four-letter words in the
Canterbury Tales, let's say, and expurgate the Canterbury
Tales by tagging those words, whereas as I understand PICs,
the best you could do would be to give each page a URL and
delete the whole page that has a four-letter word on it. Do
I understand the testimony correctly?
MR. ENNIS: The testimony was to my mind somewhat
confusing on that point but I think that may be an accurate
recollection of the testimony. There are some advantages to
the L-18 over PICs and some -- and many advantages to PICs
over L-18. The principal advantage of L-18 is it's typing in
four key strokes, that's it. The principal disadvantage of
L-18 is it's a blockbuster, all-or-nothing approach.
Everything is either patently offensive or it's okay.
Whereas with PICs you can say well, this has some
nudity but it's in the context of a serious piece of
literature or --
JUDGE DALZELL: Even under PICs, for example, we
heard from Mr. Kuromiya and his group. When PICs becomes
operational doesn't Mr. Kuromiya have a tough call to make
about the critical path information? Because as I understand
his testimony, he said we want to reach those sexually active
teenagers who are under 18. So far from having a good faith
defense that I did what I could to prevent it, he's going to
come in and tell the jury: I want to reach them. In fact, I
want to pander and titillate them because I need to get their
attention to help save lives.
So what's he going to do with PICs?
MR. ENNIS: I think that your question illustrates
another difference between PICs and the Government's proposal
which is quite important to understand. PICs primarily
relies upon ratings by third parties that the parent can no
or trust. In that example perhaps Planned Parenthood would
rate Web sites of material that's sexually explicit but
appropriate for minors. The parent might trust Planned
Parenthood. They go to Planned Parenthood and Planned
Parenthood says yes, you can let your child access Kuromiya's
Web site, that's okay, it's good, it's valuable information.
The Government's proposal, the parent would have to
know and trust each of the individual millions of speakers on
the Internet. Why would a parent do that? Why would a
parent have any reason whatsoever to trust that some
individual speaker they know nothing about is accurately and
appropriately labeling their speech or is inappropriately
labeling their speech?
JUDGE SLOVITER: Why would a parent trust anyone to
do that? Isn't that a similar indictment of the Surf Watch
et al. argument?
MR. ENNIS: Well, a parent certainly could come to
rely upon third-party rating bureaus that the parent has some
knowledge of, for example, the Christian Coalition could have
a rating service that many parents might turn to, the ACLU
might have one, Planned Parenthood might have one.
JUDGE SLOVITER: How feasible are any of these in
light of the evidence in this case of the millions of
communications that go on all the time on the Internet? And
that's both for the Government's proposal and your proposal.
MR. ENNIS: Well, what that comes down to, Judge
Sloviter, is the amount of risk that individual parents are
willing to tolerate with respect to their own children.
And the advantage of PICs and Surf Watch Manager and
all of the other products we've talked about is they give
parents total control, all the way from zero access to the
Internet to unrestricted access to the Internet or anything
in between, based upon the parents' judgment of the balance
that's appropriate for their children.
That's why -- that's another reason why our proposal
is better than the Government's but the most important reason
why it's better, let me get right to that, is that the
Government's proposal, the Government's tagging and
registration proposal will be completely ineffective at
blocking or deterring any of the substantial amount of
sexually explicit speech that is posted abroad.
By definition the criminal laws of this United --
United States are not going to deter the posting of indecent
or patently offensive material abroad.
So the Government's tagging system won't work, it
just can't, can't work at all.
There was testimony by Ann Duvall that at least 30
percent of the sites blocked by Surf Watch are foreign sites.
There was testimony by Donna Hoffman that at least 40 percent
of all the host computers connected to the Internet are
located abroad and that the percentage of foreign computers,
as a percentage of the total, is rapidly approaching 50
percent.
There's no reason to think that there's any less
percentage of sexually explicit material posted on foreign
computers than on domestic computers, so it's probable that
about 50 percent of the sexually explicit material available
on the Internet is posted abroad.
JUDGE DALZELL: Didn't Dr. Olsen or Mr. Schmidt, I
forget who, say well, that's all true, but if we have the
tagging we can concentrate all of our energy on the offshore
content and so we've reduced our problem by, to take your
figures, half.
MR. ENNIS: But it just doesn't, it makes no sense
at all. If they have the tagging but parents are not using
the blocking software, the tagging does nothing. If the
parents are using the blocking software you don't need the
tagging to keep all of that speech away from children. In
fact, it's only with the use of the end user software that
you can block access to the foreign material as well.
JUDGE DALZELL: But on the PICs proposal there was a
lot of discussion in the testimony and in your questions and
in the briefing about differing communities and differing
communities having different standards of indecency, let's
say. I don't see how PICs deals with that because PICs is
still an all or -- or tagging for that matter, they're still
all or nothing.
The example I gave of Brainerd, Minnesota versus New
York City, okay, which I think most people would agree are
rather different communities, PICs would either block both
places or not block both places, same thing with tagging,
right? So you don't deal with the community issue with PICs.
MR. ENNIS: That raises the fundamental question
with this law because the law makes it a crime to make speech
available in a way that's available to minors. And if a
parent isn't using PICs or Surf Watch, that speech will be
available in all those communities you talked about. That's
the fundamental problem with the law.
If Congress had thought about this, they might have
tried to come up with a much more sensible law that could
have done many things. For example, it could have encouraged
the development of these end-user software products.
One of the real problems with this law, in my
opinion, is that it gives the wrong signal to parents. I
think it gives a signal to parents that the Federal
Government has stepped in and taken care of the problem of
inappropriate material on the Internet, so parents don't need
to worry.
In fact, parents do need to worry. Even with the
Government's tagging proposal, if parents don't go to the
trouble of acquiring and using parental software devices, all
of that material will be available to their children despite
this act. That's one thing I hope can come out of the
publicity surrounding this case is that parents will learn
that they do have available to them very effective parental
control devices, but they have to use them.
This act has not taken care of the problem and if
the parents don't use those devices, all the sexually
explicit speech on the Internet will be available in every
home in America that's connected to the Internet, despite the
act.
Let me briefly say, there were some questions about
facial challenge, in earlier briefs the Government seemed to
take the position that we could not bring a facial challenge.
But if you look at Pages 14 through 17 of the Government's
post hearing brief, the Government acknowledges that we can
bring a facial challenge in at least two ways. We're
bringing a vagueness challenge and we're alleging that the
act is vague in all applications, so that's appropriate as a
facial challenge.
More to this point, the Government now acknowledges
that we can bring a substantial over-breadth facial challenge
and we have standing to do that, all we have to show is that
the law is substantially over-broad.
And in answer to the question from your Honors, the
two cases that discuss that are Shomburg and City of Houston,
both of which say that a law is over-broad if a substantial
number of its applications would be unconstitutional.
What I think we have shown is that Subsection D is
substantially over-broad because in every one of its
applications except for commercial speakers, it bans speech
that is constitutionally protected for adults.
JUDGE SLOVITER: Why do you keep ignoring Subsection
A which I think you also challenge?
MR. ENNIS: Well, we do challenge it, your Honor.
We're not ignoring it, it's just that the --
JUDGE SLOVITER: Well, you keep focusing on
Subsection D.
MR. ENNIS: That's right. That's because Subsection
D is the section that will affect most Internet speakers,
those who want to make their speech broadly available to the
world.
Subsection A is a more focused law about speakers
who want to make their speech available to a much more tiny
segment of the world. We do challenge both, but the truly
draconian and sweeping provision of this law is Subsection D.
JUDGE DALZELL: If the Government though -- and I
intend to ask Mr. Coppolino about this -- the Government does
say in Footnote 46 of their brief, Page 37, I think, that
they have, quote, "concerns," close quote, about your
standing because they argue that your worries are so far
fetched, so hyperbolic as to raise these, quote, "concerns,"
close quote, about your standing. Do you want to address
that?
MR. ENNIS: Well, first of all, I think the
Government is simply wrong about that, I think our concerns
about our standing are not at all hyperbolic or far-fetched
as the Compuserve incident from just two days ago would make
painfully clear.
This is a law which, if you look at the text and at
the conference report, makes clear it criminalizes the
display of patently offensive speech that is not obscene and
the law makes clear that that speech is criminalized even if
it has serious value.
Therefore, all of our speakers who engage in speech
that does have serious value are at risk of prosecution under
this law.
Also, under the over-breadth doctrine, pure over-
breadth doctrine, we would have standing under Fox to bring
this challenge on behalf of those speakers whose speech did
not have serious value. So either way you look at it, I
think there's no standing issue in this case.
JUDGE DALZELL: Well, it's certainly true that the
Government has said consistently that -- and of course it
never filed a motion as to standing and it was assured to me
when we were talking about the stipulations that the
Government had no standing concerns, but that Footnote 46
raised my eyebrows a little bit and that's why I raised it
with you.
MR. ENNIS: Well, let me make a footnote point to
that is that not only have we brought an extraordinarily
broad coalition of plaintiff groups representing truly
virtually all of the mainstream media publication and
computer entities in America. Those groups have sued also on
behalf of their patrons, their subscribers and their users.
The librarians are also suing on behalf of their patrons and
members. America On Line is suing on behalf of its
subscribers.
So we're suing on behalf of millions of speakers on
the Internet. Many of those speakers speak to news groups,
list serves, IRC chat rooms, and it's quite likely that some
of the speech they engage in would not have serious value
under the Government's definition.
So we're also speaking on behalf, we're bringing
this suit on behalf of speech that does not have serious
value. Accordingly, we have standing for that third reason
as well.
I'd like, if I could, to make one final point and
then reserve the balance of my time for rebuttal.
JUDGE SLOVITER: I think you've used most of your
time, but go ahead.
JUDGE DALZELL: Yes, you've reserved 15 minutes for
rebuttal.
JUDGE SLOVITER: But we'll see -- we'll hear you on
rebuttal.
JUDGE DALZELL: And you ten, right.
MR. ENNIS: Do I still have some time left?
JUDGE DALZELL: Yes, you have five minutes.
MR. ENNIS: Let me make one brief point.
JUDGE SLOVITER: And a substantial amount of your
initial time.
MR. ENNIS: Yes. The Government suggests that the
act should not be struck down because the act in combination
with user blocking software would be more effective than
either alone. There are several problems with that argument.
First, as I think we have shown, this act does nothing,
literally nothing or at most only a marginal amount to
protect children from inappropriate speech that would not
already be done as a result of market forces and end user
software even in the absence of the act. And that marginal
benefit comes at the expense of suppressing constitutionally
protected speech for adults. So the act violates --
JUDGE SLOVITER: That implicates a factual issue as
to how frequently one might -- well, a child is likely to
inadvertently find speech that was intended to be suppressed
by this statute.
What is your understanding of, given all the
evidence that we saw here, of the frequency of what the facts
show as to the frequency of an inadvertent coming across
that--
MR. ENNIS: I think the evidence on that is clear
and I think Congress agreed. The Government's expert, Howard
Schmidt, testified in court that, quote, "The odds are slim
that someone would come across a sexually explicit site by
accident."
Congress in fact found in the act in one of its
findings that the interactive computer services, as the name
suggests, the word interactive, "offer users a great deal of
control over the information that they receive as well as the
potential for even greater control in the future as
technology develops."
JUDGE SLOVITER: Well, now we saw a few examples
presented by the Government's witnesses where that was
likely. What I have yet to see is somebody testify as to
how, beside the very slim, how frequently that could occur
because obviously it can occur.
MR. ENNIS: It obviously can occur and --
JUDGE DALZELL: We saw it in the Jasmine example.
MR. ENNIS: Yeah, it obviously can occur. We don't
take the position that it is impossible to be surprised by
what comes up on your computer screen.
We do take the position and have all testified to
this effect, Bill Burrington testified to this effect, that
in interactive computer services, unlike broadcast TV or
radio, the speaker, I mean the listener makes an affirmative
choice of where they are going to go and they have to select
where they're going to go.
You don't turn on your computer and sexually
explicit images pop on your screen. You turn on your
computer and you have to select where you want to go to get
there.
JUDGE SLOVITER: Is the Government entitled to
prevent a child who wants to go into sexually active material
from being able to do so?
MR. ENNIS: Regardless of the parents' wishes?
JUDGE SLOVITER: Mm-hmm.
MR. ENNIS: I think that's a very difficult
question, your Honor. I think as a constitutional matter if
Congress wanted to have as an interest and to exercise a
parents' patri interest in protecting child-- minors from
access to material, even if their parents thought it was
appropriate for their children, it could conceivably have
such an interest. It would raise very serious constitutional
questions in my mind, some of which are noted in the Fabulous
opinion by your Honor.
But the important point here is, is that Congress
has given us no reason whatsoever to think that that is the
interest underlying this act. To the contrary, in this act
Congress found as a fact that its objective in the text of
the act was, quote, "To empower parents to restrict their
children's access to objectionable or inappropriate on-line
material" and the conference report is even clearer.
The conference report confirms, quote, "The
important Federal policy of empowering parents to determine
the content of communications their children receive."
JUDGE SLOVITER: Isn't there evidence on the record
that there are a great number of possibilities for people
under 18 to access the Internet outside of the home? There
are lots -- there's lots of evidence --
JUDGE DALZELL: Internet cafes.
JUDGE SLOVITER: Well, but even if little children
don't go to cafes --
JUDGE DALZELL: Libraries.
JUDGE SLOVITER: -- at libraries, et cetera,
schools.
MR. ENNIS: Schools.
JUDGE SLOVITER: Yeah, and where -- and you also
assume in your argument and in your brief very knowledgeable
parents, parents who know how to, assuming they have a
computer in the house, who will know how to contact the
entities that will be able to help them in putting things
like Surfwatch on.
And I'm not sure how realistic that is in today's
world. I mean we have children who don't know about birth
control, who aren't told by their parents about AIDS, because
we have a whole substrata of our society in which parents are
unwilling or unable to give this information. So how can you
make the assumption that we can rely on parents for this kind
of protection?
MR. ENNIS: Well --
JUDGE SLOVITER: And do we have to?
MR. ENNIS: Two responses, your Honor. Your final
question is yes, we do have to. If parents do not act
responsibly, if parents don't do what they can do, nothing in
this act will protect children from inappropriate material,
nothing.
But the two answers I'd like to give are first, I
respectfully disagree with your Honor. I think the testimony
by Ann Duvall, the testimony by Bill Burrington was clear
that it is very easy for parents to use the parental control
devices like Surfwatch, Surfwatch Manager, the America On
Line Compuserve Project Parental Control devices, it's really
quite easy. Any parent that has a computer can almost
certainly use those devices.
Second, if parents can't figure out how to use those
devices then that is a problem for the Government as well
because the Government's whole idea about tagging or
registering speech can't work unless the parents have the
capacity to use that end-user software. So if it's a
problem, it's a problem for the act, not a problem for our
case.
JUDGE DALZELL: Last question, the same question I
asked Mr. Hansen. Senator Exon and Senator Coates give you
the pen to write child of CDA, do you give it back to them or
do you write something?
MR. ENNIS: Well, my first answer would be exactly
what Mr. Hansen answered, wait a decent interval, let the
marketplace work, especially since Congress made findings of
fact that it wanted to preserve a vibrant, free market in the
Internet, quote, "unfettered by Government regulation." Let
the market work for a while and see if you even need any
governmental intervention of this nature whatsoever.
But if I were pushed to try to come up with a
different law I think there are many things Congress could
have considered that would have narrowed the scope of the
law, in answer to Judge Sloviter's question, without even
thinking about the affirmative safe harbor defenses.
If Congress was truly concerned about commercial
pornography it could have written a much narrower law that
only criminalized the display to minors of truly sexually
explicit material.
JUDGE DALZELL: But those laws already exist.
MR. ENNIS: Well, for obscenity it does, but they
could have gone down one notch and tried that. They could
have made clear that speech with serious value is not
criminalized, they could have done that.
JUDGE DALZELL: So you disagree with what Mr. Hansen
said about the medium specific aspect here?
MR. ENNIS: Oh, no, no, no, not at all. The reason
that this very broad coalition of plaintiff groups is before
the Court today is precisely to emphasize the point that this
medium of communication truly is unlike any other that has
ever gone before it and that the appropriate First Amendment
standards of review that this Court must develop to govern
regulation of this new medium of communication have to take
those characteristics into consideration.
One of the principal characteristics is it is a
truly global medium, which Congress forgot about it. It is
not as if patently offensive speech that's posted abroad has
to come through a Customs Office checkpoint before it reaches
American homes where it can be physically screened by Customs
officers. Everything that's posted abroad is instantly
available in every home in America, this is a global
communications medium.
I can suggest a few other ways of narrowing the
statute that Congress could have considered. For example,
the Government has made much in its evidence about the so-
called teaser ads by commercial providers of sexually
explicit speech who have teaser ads and then charge with
credit cards to actually get into their Web sites.
If that was really Congress' concern, Congress could
have crafted a much different statute designed to regulate
advertising. Now, in my opinion there would be very, very
serious constitutional problems with regulation of
advertising on the Internet, but they would be of a different
order of magnitude because they would be judged under the
intermediate standard of review, not under strict scrutiny
because commercial speech is judged on an intermediate
standard of review. That's another narrower thing Congress
could have done.
There are many ways Congress could have narrowed
this law, the most important of which would be to take out
the word speech available to minors. That basically bans all
speech. Congress could have said, passed a law that said
before you engage in patently offensive speech on the
Internet you should give fair warning that your speech is
patently offensive. Then all these tagging defenses would
make some sense because you would be giving fair warning.
That's a different scheme that Congress, I think probably
would be an unconstitutional scheme, but it would certainly
be a narrower scheme than the one Congress adopted.
JUDGE SLOVITER: It doesn't help to suggest what you
think is unconstitutional now, does it?
(Laughter.)
MR. ENNIS: I was just trying to respond to Judge
Dalzell's question. If I were --
JUDGE SLOVITER: The answer may be -- I mean if you
really think it -- that there's nothing that Congress could
have done constitutionally.
JUDGE DALZELL: It's okay to say that, Mr. Ennis.
JUDGE SLOVITER: I mean I'm not sure that's right --
(Laughter.)
JUDGE SLOVITER: -- but I can't see how it helps us
to suggest statutes that you would later challenge.
JUDGE DALZELL: Because for sure you wouldn't want
to repeat what's happened with dial-a-porn, would you? That
is to say where you have ten years of litigation over the
subject?
MR. ENNIS: No, I think that's right and I think
that's precisely why Congress specifically authorized a
facial challenge in this case because there's allegedly
history makes clear that Congress did not want to wait for
ten years to find out whether they've got a valid law or not.
And if it's limited to an as-applied challenge, then
you're into years of litigation about the constitutional
scope of the law. That's why I think Congress invited a
broad facial challenge to this law.
Let me finish the point I said was the final point I
was going to make about this combination. The Government's
argument that the less drastic alternative of end-user
software coupled with the act would be more effective than
either alone. That argument is flatly inconsistent with
current law and would basically wipe out the less restrictive
alternative requirement of strict scrutiny because it is
almost always the case that a combination of the Government
prohibition and the less restrictive alternative together
would be more effective than either alone.
In the Bolger case, for example, the combination of
the Government prohibition on unsolicited mailings when
combined with the less drastic alternative of parental
supervision of incoming mails would surely be more effective
than either alone, but the Supreme Court struck down that
governmental prohibition and relied exclusively and solely on
parental supervision of what their children would receive in
the mail. That's the appropriate response for this case as
well.
Thank you.
JUDGE DALZELL: All right, we will -- go ahead.
JUDGE SLOVITER: We will recess for 15 minutes,
please.
(Court in recess; 11:07 to 11:28 o'clock a.m.)
THE COURT CLERK: Court is now in session, please be
seated.
MR. COPPOLINO: Good morning, your Honors.
JUDGE DALZELL: Good morning, Mr. Coppolino.
MR. COPPOLINO: Your Honors, just first by way of a
couple of procedural points, whatever the Court's wishes are
in terms of our having rebuttal time, if you would permit us
I would reserve ten minutes if you could --
JUDGE SLOVITER: Why would you have rebuttal time?
MR. COPPOLINO: Well, that's -- if you want them to
have the last word then that's fine with me.
JUDGE SLOVITER: No, that's not the question as to
whether we want them to have the last word, you didn't call
it, this is not an appeal, you didn't cross-appeal.
MR. COPPOLINO: I understand.
JUDGE SLOVITER: And I didn't understand the whole
thing about surrebuttal.
JUDGE DALZELL: There's no counterclaim, at least
that I've seen.
MR. COPPOLINO: Okay, then forget that then. I
think --
JUDGE SLOVITER: Good try.
(Laughter.)
MR. COPPOLINO: I had to try.
That being the case, Mr. Baron and I will divide the
argument essentially along the lines that Mr. Hansen and Mr.
Ennis divided it. I do expect that I will cross over a bit
into Mr. Ennis' area to talk about the safe harbor defense
concerning credit cards and access codes and the parental
control software is the least restrictive alternative with
respect to that.
Given the amount of time we have, you know, I would
expect to go for about an hour on my time and then Mr. Baron
would have about an hour thereafter.
JUDGE SLOVITER: You will forgive us if we don't
keep in our minds what the break of the -- of you both is and
if we ask you questions that -- I'd rather you not say well,
Mr. Baron's going to handle that. It's the frustration of
having two arguers rather than having one that you can do
unless it's something that really Mr. Baron promises to get
to.
MR. COPPOLINO: Yes. Well, the only area, I think
it's a very discrete area having to do with the defenses for
the non-commercial providers concerning tagging, labeling--
JUDGE SLOVITER: Yes.
MR. COPPOLINO: -- registering, Dr. Olsen's areas,
there's some crossover. And I'll, if I feel like he could
have the better handle on it, I'll just --
JUDGE SLOVITER: Okay.
MR. COPPOLINO: -- so indicate.
JUDGE SLOVITER: Are you finished the procedure?
MR. COPPOLINO: Yes, I am, your Honor.
JUDGE SLOVITER: Good. Mr. Coppolino, I would like
to know because I'm not satisfied that I fully understand at
this point what is the Government's position as to what the
statute, A and D, let's leave aside C, what the statute
covers.
MR. COPPOLINO: I take it by your question, your
Honor, you are specifically asking about the indecency
standard, what types of speech it covers.
JUDGE SLOVITER: No, I'm asking about -- that's my
second question which is whether they really are the same
thing, but what do you understand -- I read your brief very
carefully, I even indexed it all myself, no law clerks, what
do you --
(Laughter.)
JUDGE SLOVITER: -- what is your position as to what
is covered by the statute?
MR. COPPOLINO: The statute, I -- I would say on its
face covers indecent, that is patently offensive
communications over a telecommunications device in 223(A) and
an interactive computer service in 223(D). And therefore it
could cover communications across various media, Web sites,
Usenet groups and so on that might be within that standard of
patently offensive. So --
JUDGE SLOVITER: And is that the way we have to read
the statute?
MR. COPPOLINO: I don't think that's the way you
necessarily have to construe it and I think as you may
discern from our brief an important point we would make to
the Court, principally in connection with the substantial
over-breadth argument is that if there are some applications
that give the cause concern that the Court would have to look
to whether the plainly legitimate sweep of the statute is
substantial or whether the applications that you consider
might be unconstitutional are substantial in comparison to
the plainly legitimate sweep.
I'm jumping ahead a bit, but --
JUDGE SLOVITER: No, well, but I think we have to
get, because everything else will follow, I assume everything
else follows from what you claim is covered.
Now, do you claim -- I'm going to ask you a series
of questions if my colleagues will permit because -- do you
claim that A and D, the patently offensive and the indecent
provisions are the same?
MR. COPPOLINO: Yes, I do, your Honor.
JUDGE SLOVITER: Now, then I want to know if that's
so, I mean how can you do that in light of the language? For
example, D talks in terms of communications that describe
sexual or excretory activities or organs. Is that anywhere
in A?
MR. COPPOLINO: It is not specifically defined in A.
Here is my position on that --
JUDGE SLOVITER: Yes.
MR. COPPOLINO: -- point, your Honor. Our position
is that as the courts have construed the term indecent or
indecency, that the meaning for that term, the standard, if
you will, has been communications which in context describe
sexual or excretory activities or organs in a patently
offensive way.
In Pacifica case, for example, the standard, the
statute at issue specifically used the word "indecent."
That's all that it had. And the FCC interpreted the standard
to mean patently offensive communications of sexual or
excretory activities in every other case that has interpreted
the decency standard has interpreted it to mean that. So
that's our position.
JUDGE SLOVITER: Yeah, but --
JUDGE BUCKWALTER: Okay, you have the same -- I know
you have the same question, I guess.
JUDGE SLOVITER: Go ahead, you go ahead.
JUDGE BUCKWALTER: There's -- there's no other act
though quite like this one, is there, where you have in the
one section the indecent and in another totally different
section dealing with a totally different subject because
you're not dealing with telecommunications in D, you're
dealing with interactive computer. You have a totally
different prohibition, okay? So there's nothing quite like
this before, has there?
MR. COPPOLINO: No, there's nothing quite like this
statute before, no, your Honor.
There is -- there is --
JUDGE BUCKWALTER: I guess that's a --
MR. COPPOLINO: I don't think it's totally different
though, Judge. I would say that, as we had a separate brief
on this issue of what is the difference between
telecommunica-- telecommunications device and interactive
computer service and I --
JUDGE BUCKWALTER: But the statute itself says
something, doesn't it, or did I misread that, that the
interactive computer is not telecommunications?
MR. COPPOLINO: It's not, it's not
telecommunications device, but the point I was going to make
is that a transmission of a communication all through the use
of a modem, say, over a computer system would be covered by
A, and therefore we don't think it's that different.
I recognize there are some -- there are some
legislative craftsmanship problem here in that they didn't,
didn't have a separate section which says definition indecent
or so on, but I think there is so much case law --
JUDGE BUCKWALTER: You might not even have to have
that if you didn't have two different, plain different words
there.
JUDGE DALZELL: But doesn't the conference report
make it clear that they do have the same meaning?
MR. COPPOLINO: I think so, your Honor. I think--
JUDGE DALZELL: Because the conference report makes
it absolutely clear that these terms are taken from Pacifica
and Sable, doesn't it?
MR. COPPOLINO: Well, I think it does, it referred
to the definition of indecency as its been con-- as its been
construed in Pacifica and Sable.
JUDGE SLOVITER: Well, I want the Government's
position. I mean we'll get each other's, yeah, afterward.
MR. COPPOLINO: That is our position. That is our
position, that when we are talking about the indecency
standard in 223(A), the word "indecent" or the patently
offensive provision in 223(D), we are talking about the
indecency standard as it has been construed and understood by
the Courts from Pacifica, Sable, the Dial-A-Porn cases and so
on.
JUDGE SLOVITER: So you want us to write into A the
words describing sexual or excretory activities or organs?
MR. COPPOLINO: Well, yes, your Honor.
THE COURT: But they're not in there.
MR. COPPOLINO: Yeah, I -- I don't think that is an
enormous task of statutory construction based on our
representation as well as the legislative history but yes --
JUDGE SLOVITER: Well --
MR. COPPOLINO: -- I think you should interpret
indecent in A as patently offensive descriptions of sexual or
excretory activities. I don't know how else it would be --
JUDGE SLOVITER: Does that give notice to the
required notice in a criminal statute to all the people who
may be subject to this?
MR. COPPOLINO: I think it -- I think it certainly
would give substantial notice because obviously as part of
the process we have a legislative process and we have a
process whereby the Federal Courts undertake a constitutional
interpretation of it and I think that that interpretation
just on that point would be fully consistent with a broad
array of case law discussing the indecency standard and what
that standard specifically means, particularly where I don't
think there's any disagreement between the parties and I
don't think that there is any case law to suggest that there
would be some different meaning to the word indecent in
isolation.
JUDGE SLOVITER: Okay. And you want us also, as I
read your brief, to read the statute to have a built-in
exception for works of value. Let me -- that's a sort of a
paraphrase of what your brief says. Is that correct?
MR. COPPOLINO: I'm sorry, I can't really agree with
that characterization, your Honor, it's too broad an issue.
And if I could just try to explain it, I would --
JUDGE SLOVITER: Sure, I would certainly like to
hear that -- keep to that in light of the legislative
history--
MR. COPPOLINO: Yes, I will do that.
JUDGE SLOVITER: -- which says we won't accept such
a exemption.
MR. COPPOLINO: Yes, I understand, I understand your
question and let me try to get to it as directly as I can. I
think that obviously the first major line of attacks by the
plaintiffs in trying to demonstrate that the statute
effectively bans speech is not only that it's over-broad
across applications but the indecency standard covers a broad
array of speech.
And while arguing at the same time that we are
trying to narrowly construe it, that we have equated it to
pornography, that is really not what we have attempted to do.
We are asking the Court to construe that standard in the
context in which it's been applied by Congress and upheld by
the courts.
For example, it has been applied by Congress in
regulating Dial-A-Porn, it has been applied by Congress in
regulating cable and leased access television to materials
that clearly constitute the type of sexually explicit
materials that one could characterize as pornography.
And our point is that it's not simply anything about
sex or anything with an expletive, the parameters are fairly
specific. It has to first concern sexual or excretory
activities, not just any kind but patently or obviously
offensive material. Now, that can include pornography. It
can also include what we would consider to be shocking,
offensive or vulgar textual discussions such as were at issue
in the Pacifica case and we're not suggesting otherwise.
Certainly the language on a number of the cites that
we provided to you have that type of language, but I --
JUDGE DALZELL: Let's put some flesh on it because
it, in terms of what the Government's position is because I
share Chief Judge Sloviter's befuddlement on this point.
JUDGE SLOVITER: I'm not sure I would describe
myself --
JUDGE DALZELL: Well, all right, then I will
describe it for myself as that.
(Laughter.)
JUDGE DALZELL: I asked counsel on the other side
about the Merrill Hansen decision, okay? If the Merrill
Hansen dialogue between those two disc-jockeys about Jim
Baker's alleged rape of Jessica Hahn, if that had taken place
on the Internet, okay, would that be indecent under the CDA
and therefore subject those two gentlemen plus the station to
criminal sanctions?
MR. COPPOLINO: I think if you -- I re-read the case
after you had referenced it and I think that is probably the
hardest case, I've read all of the FCC materials that you had
talked about because it was obviously a very explicit
description, but then they stopped and said hey, this is
serious, this woman was being raped.
And I would say to the Court that in the broadcast
context, as I think we've made clear, the standard is much
less tolerant. Judge Sloviter explained this in a fabulous
case, in that context you're going to get away with an awful
lot less and your First Amendment freedoms are more limited.
So I don't think I can say that that discussion
would necessarily be indecent, although prior to the point
where they got to, hey, wait a minute, maybe we shouldn't be
making jokes about this, this is a serious situation, it was
a fairly explicit discussion.
But I'd like to make this point to the Court in
respect to the FCC adjudication because I think that is
helpful in trying to understand the standard. Even in the
area of broadcast where First Amendment freedoms are most
limited and where there is the least tolerance, I think that
the FCC decisions reflect a very serious intent to limit the
indecency standard to patently offensive and shocking
materials that are taken, for example, out of context.
JUDGE DALZELL: But that's why I'm concerned about
the Hansen case. We have 94 U.S. Attorneys, I think, at
least 94 cause there's 94 districts, okay, that at least one
of them or one of your colleagues in Washington such as the
gentleman who was in recent contact with Compuserve will look
at Hansen or the language of this and say let's convene a
Grand Jury.
Now, you know, if a party hears the words Grand Jury
convened about me, it will really ruin their day, wouldn't
you agree?
MR. COPPOLINO: Yes, I --
JUDGE DALZELL: So that the fact that a jury later
on, that a jury later on will say oh, acquitted, that's not a
lot of comfort, is it?
MR. COPPOLINO: Your Honor, I think that we cannot
provide assurance that there might not be a prosecutor that's
going to take the most absurd case or very extreme case and I
think that in assessing --
JUDGE DALZELL: Is this an absurd case?
MR. COPPOLINO: No.
JUDGE DALZELL: Hansen, I mean, this is the Federal
Communications Commission did this. Did they do an absurd
thing?
MR. COPPOLINO: I indicated just a moment ago that I
felt that the standard would be tighter in the broadcast
context and that in many other cases that they have decided
in the broadcast context it is very clear that they are
focusing on patently offensive stuff taken out of context.
But to answer your question, in the context of the
facial challenge I think the Court has to construe the
indecency standard in a manner consistent with how it's been
applied by the Congress and the courts. That's not to say
that there aren't going to be hard cases. Those hard cases
should not take the whole statute down, they should simply be
left for admittedly a difficult as applied challenge.
But we can show, I believe it's fair to say, that
the indecency standard as it has been applied and construed
covers a fairly narrow category of speech.
JUDGE SLOVITER: I still don't understand whether
that narrow category of speech covers work that some people
would consider to be of value. Take, for example, the play
that was in two parts on Broadway about AIDS.
JUDGE DALZELL: Lost in America?
JUDGE SLOVITER: The two --
JUDGE DALZELL: Angels in America.
JUDGE SLOVITER: Angels in America. Now, a lot of
people might be offended by that -- leave aside Shakespeare
and leave aside Chaucer which we know from the book content
and leave aside "Catcher In The Rye" which we know from the
print media are considered offensive in some media and go to
a more contemporary type of literature that some people would
think is serious and some people would think is
objectionable.
If that were printed in, you know, print on the
Internet, Mr. -- Pittsburgh Library --
JUDGE DALZELL: Dunninberger (ph.).
JUDGE SLOVITER: Yeah, would that be covered or
would there be a built-in non-specified defense that says
this is a serious work?
MR. COPPOLINO: Two points, your Honor.
JUDGE SLOVITER: Yes.
MR. COPPOLINO: Our point is that yes, material that
might be found indecent might also be considered to have
serious value. The plaintiff's position seems to be is that
indecency covers all works that have serious value and that's
where really we are disagreeing. We -- because I don't
believe that's necessarily the case as you parse the
standards in the obscenity and indecency area that you have
to conclude, as they have, that indecency necessarily
includes serious material and necessarily excludes material
that has prurient appeal. That's where our disagreement is.
The answer to your question is yes, it's possible
that something that is serious in some way could be indecent.
Our point with respect to the --
JUDGE SLOVITER: And it certainly deals with sexual,
I saw half of it, sexual or excretory activities or organs.
MR. COPPOLINO: Yes, but our point with respect to
plaintiff's materials, first of all, is that what they have
presented in context in its full context is -- is serious
material that ought not to be found and should not be found
indecent. And I have to say to your Honor that if you're
just going to talk about a play on AIDS, the whole play in
context, it has serious value.
If you're going to talk about, as in one of the FCC
cases, taking specific stuff out and putting that out there
and making it available, then the context is completely
changed. So it's very difficult to answer the question well,
is all serious -- is all serious work covered by the
indecency standard.
JUDGE SLOVITER: But that's not the question. That
may be their question, but that's not my question. My
question is does the -- and we're not bound by anything that
the plaintiffs say, that may also be extreme.
My question is simply as a matter of notifica-- one
is a matter of the First Amendment and two is a matter of
notification because it's a criminal statute. To the world
out there what does this statute read or reasonably read to
those people so that if somebody wants to send somebody else
a paragraph or a scene from a contemporary play, is that
person and the other person is 17, is that covered by the
statute? And I still don't have a yes or a no from you.
MR. COPPOLINO: Well, the problem is I don't know
that I can say yes or no to a categorical question that is
serious material covered because the application of the
indecency standard depends on the specific communication and
its context.
I got in -- we kind of got into this thicket for two
reasons: one is they're coming in saying that anything having
to do with sex, whether it's a reference in Bible, the Bible
or Shakespeare, breast cancer, breast feeding, so on--
JUDGE SLOVITER: Leave them out of it and just --
MR. COPPOLINO: Fine, okay.
JUDGE SLOVITER: -- talk to the three of us at this
point.
MR. COPPOLINO: I think the material --
JUDGE SLOVITER: And the three of us want to -- I
think the three of us want to know how broadly this statute
reads.
MR. COPPOLINO: Then our position would be that the
statute should apply to non-obscene patently offensive
material, sexual -- concerning sexual and excretory
activities of the nature that Congress has indicated that it
is targeting, namely the sexually explicit sites on the
Internet and of the nature that Congress has targeted and the
courts have recognized in other cases such as Dial-A-Porn and
the Act Two -- the Act Three in the Alliance case, materials
of that nature.
Clearly, your Honor, I think it's fair to say that
the target of the indecency standard has been materials with
very little value, with significantly little, with
significant or --
JUDGE DALZELL: But who determines that, the 94 U.S.
Attorneys?
MR. COPPOLINO: I think it starts in the first
instance and in the face of a vagueness challenge here with
the Court construing the standard as it has been applied by
Congress and as it has been reasonably applied by the Courts
who have considered similar cases.
JUDGE SLOVITER: But they're not criminal, by and
large.
MR. COPPOLINO: Well, by and large. The Dial-A-Porn
statute is a criminal statute with a regulatory overlay but,
yes, they are predominately not criminal. But I think that
again I would start with the point that this is not a
completely open-ended standard, there are parameters here.
First of all, you have to have sexual or excretory activities
or organs. That's minimum that has to be in the
communication.
JUDGE SLOVITER: Even though A doesn't so state?
MR. COPPOLINO: Well, yes, I understand. Well, I
understand that, your Honor, but there's nothing --
JUDGE SLOVITER: I mean you're asking us to be the
activist Judges that Congress ex-- that some members of
Congress excoriate because you're asking us really, Mr.
Coppolino, to rewrite the statute.
MR. COPPOLINO: Well, I --
JUDGE SLOVITER: To put words into the statute that
aren't there. And at least I want to know clearly what words
you think we ought to put in and your brief suggests, for
example, we should put in prurient, you know, that --
commercial, the kind of -- that it's really intended to hit
what already is being hit. And what I'm trying to find out
is what more is in this statute than in, already in 18 USC.
MR. COPPOLINO: Right, your Honor, I --
JUDGE SLOVITER: And I know your position is
difficult, especially when I come at you like -- when all
three of us come at you like that, but -- but we really want
to understand.
MR. COPPOLINO: And I understand and I'm not --
JUDGE SLOVITER: And we know it comes like you say
with the overlay of constitutionality and Congress has sorted
out, we know all that. And you know it's very rare that we
declare a statute unconstitutional.
MR. COPPOLINO: You don't have to rewrite the
statute, you don't have to be activist Federal Judges
legislating and I'm not asking you to do that. With respect
to the indecency standard, I think that's a fairly simple
task of statutory construction to say that the word indecent
means what every court that has considered an indecency
challenge has understood it to mean. That's our view, at
least, that it's fairly simple to do that.
With respect to the over-breadth issue, the over-
breadth issue goes to whether or not the statute, the
statute's potentially unconstitutional applications are
substantial in comparison to its plainly legitimate sweep.
Our point on that is that it's plainly legitimate
sweep --
JUDGE SLOVITER: Is what?
MR. COPPOLINO: Is enormous and is very substantial
and substantially outweighs what might be considered to be
potential problem areas, due to potential problem areas. And
let me --
JUDGE SLOVITER: What is its plainly legitimate
sweep that is not already covered by the two provisions in 18
USC?
MR. COPPOLINO: Your Honor, the plainly legitimate
sweep is --
JUDGE SLOVITER: That is not already covered.
MR. COPPOLINO: Yes. 18 USC does not cover indecent
materials, it covers obscenity and child pornography. And
this statute extends that to materials that would fall within
the indecency standard.
JUDGE SLOVITER: And what is indecent?
MR. COPPOLINO: Well, your Honor, let me go back to
the point and try to explain it this way because --
JUDGE SLOVITER: And not only what is indecent,
where does it have to be viewed as indecent, in other words,
in what community? Would you take those two questions --
MR. COPPOLINO: Yeah, I think I can deal with that
one first. There's no in-- I mean I think that the indecency
standard is a standard that will be judged on a community
basis and I think that that --
JUDGE SLOVITER: What community, you mean local
community?
MR. COPPOLINO: Well, yeah, where the communication
is at issue.
JUDGE DALZELL: Where the communication what?
MR. COPPOLINO: Is at issue.
JUDGE SLOVITER: Now, is that not a problem when
you're dealing with something that comes across the entire
United States? Leave aside the rest of the world, I
understand your position that you can only deal with what's
here and, you know, let's not worry about what's there, you
know, that's true, I don't have to worry about what they're
singing in Paris.
But the United States is so diverse, what goes in
Philadelphia, as cosmopolitan as Philadelphia is, may not
go-- where are you from? -- Lancaster.
JUDGE DALZELL: Lancaster.
JUDGE SLOVITER: May not go --
(Laughter.)
JUDGE BUCKWALTER: For the record, that's spelled
L-a-n-c-a-s-t-e-r.
JUDGE SLOVITER: Well, seriously, so what -- and are
we on the same -- and we're all in the same district, in the
same Eastern District no less. What -- and Lancaster is
where the Amish are?
JUDGE BUCKWALTER: Right.
JUDGE SLOVITER: And "Witness" and --
JUDGE BUCKWALTER: And Mennonites.
JUDGE SLOVITER: Mennonites. What -- and I know
we're taking your time, we're going to give you time to
answer.
MR. COPPOLINO: No, that's fine, I want to answer
your questions.
JUDGE SLOVITER: What community is it when somebody
sends something over the Chat News that I could access,
assuming I knew how, and that he could access?
MR. COPPOLINO: The answer, I think, to the question
is, it is a problem if you construe the indecency standards
as the way plaintiffs have, that someone might be offended,
for example, by a serious discussion of prison rape or safe
sex.
But if the indecency standard is properly understood
to be applicable to the types of materials Congress has
intended to cover, then the disagreements between communities
are going to be at the margins. Some communities like New
York, for example, will consider the movie, "Deep Throat,"
not to be obscene but merely indecent. Philadelphia or
Lancaster may have a different view of that.
JUDGE SLOVITER: No, Philadelphia would be with New
York but Lancaster would --
JUDGE BUCKWALTER: Would not.
JUDGE SLOVITER: -- might be somewhere else.
MR. COPPOLINO: I recognize that, your Honor, but
first of all we're in the ballpark of that kind of material
in --
JUDGE DALZELL: Well, wait a minute now. Yo