AFTERNOON SESSION (1:48 o'clock p.m.) JUDGE DALZELL: Hello, Mr. Baron. MR. BARON: Good afternoon, your Honors. Jason R. Baron for the Justice Department. I'd like to pick up where Mr. Coppolino left off, in outlining what are the available affirmative defenses to non- commercial content providers on the Internet. JUDGE SLOVITER: Before you do that, could you address briefly, if necessary, my question which is whether the availability of defenses -- the viability of the theory that if you have defenses in the statute, assuming that they were good defenses, that saves it from any over-breadth or vagueness? MR. BARON: I think you would need to restate the question, your Honor. Is it in the context of other statutes you're asking, or -- JUDGE SLOVITER: No, has any Supreme Court case held that a criminal statute that has defenses in it is thereby saved from overbreadth. MR. BARON: I'm not aware of case law that parallels the statute, your Honor. JUDGE SLOVITER: Or is there any other statute like this that talks in terms of defenses to a criminal statute? MR. BARON: Other than the Dial-a-Porn context, I'm not aware of one that dovetails with the words of this statute. JUDGE SLOVITER: I don't mean the words, I mean this context that the existence of a defense is enough to save the statute, that you have to consider it with the existence of a defense. MR. BARON: Yes, but it is the position of the Government, however, that the broad nature of the affirmative defenses that are part of this statute do allow for sufficient defenses to be asserted so that there would not be a substantial number of applications that would be subject to the kind of overbreadth challenge that Mr. Coppolino was discussing. JUDGE SLOVITER: But you can't give us any citations? MR. BARON: Not today, your Honor. The touchstone of -- JUDGE SLOVITER: We don't want more briefs. (Laughter.) But go ahead, Mr. Baron, we'll hear you. MR. BARON: The touchstone of what Congress intended by way of the affirmative defenses that are set forth in the CDA is of course the statute itself supplemented by its legislative history. Congress not only provided for the concrete defenses that are listed in E5(b) regarding credit card, debit account, adult access code, adult personal identification numbers, but they went further. The text of 223 E5(a) provides for a broad range of affirmative defenses to be asserted by content providers based on their taking reasonable, effective and appropriate actions under the circumstances and in light of what is feasible based on available technology. The statute represents a forward- looking approach to what everyone concedes is an extraordinarily creative, flexible and powerful new means of communication. The very words of the statute imply that what is feasible under the circumstances based on available technology today may change. Congress expected that it would change. Thus, the statute does not consist of a static snapshot of available defenses, but keys those defenses to what is feasible to do under available technology. JUDGE BUCKWALTER: And if none are available, then that is a defense, too? MR. BARON: Excuse me, your Honor? JUDGE BUCKWALTER: If none are available, is that a defense? MR. BARON: The statute contemplates that there -- well, I believe the evidence of record shows that there are certainly available defenses -- JUDGE BUCKWALTER: Well, we might discuss that later, but -- MR. BARON: But the -- JUDGE BUCKWALTER: Maybe Judge Dalzell wants to discuss it now. (Laughter.) JUDGE DALZELL: Well, I mean tagging isn't available now, is it? MR. BARON: It has been the evidence of record that as was evident from the first day of the hearings before the Court that there are schemes that the available standards and protocols of the Internet allow for putting in place, and that the marketplace is poised to allow for tagging and labeling schemes that are content selection schemes such as Congress envisioned. JUDGE DALZELL: But getting at what Mr. Hansen said, which is to say this statute is effective immediately. But for the TRO and then the stipulation and order of February 26th, this statute would be effective. Are we agreed? And therefore those defenses would be effective immediately. MR. BARON: Well, the power of the scheme that we have brought forth is if this -- by plaintiff's own concession this morning and by the testimony that you've heard from plaintiff's own witness, Mr. Vezza, as well as others, that if this hearing were being held in July or even earlier, it would be expected that Microsoft and Netscape and virtually all of the marketplace of browsers would be able to assimilate a PICs compatible labels and by the force of our argument other labeling schemes that are more generic. So but for the fact that this was an expedited schedule and the Court has wanted to go forward in settling this matter on a facial challenge as fast as possible, we're in May, we may be in a different place in July. That is the thrust of the Government's position on tagging, that it's poised, the marketplace is poised and the admissions there. JUDGE DALZELL: But it's not a defense now because it can't be. Nobody has -L18 because it was just Dr. Olsen's idea that was born on or about April 1, 1996. MR. BARON: It was certainly something that was brought forward by our expert after the passage of the Act as one way that a content selection standard as envisioned by Congress in the conference report could go into widespread effect. Now, I -- JUDGE DALZELL: Now, since it's not available, since we agree it's not available yet, right? MR. BARON: Certainly the -L18 standard as proposed by Dr. Olsen is not available today. JUDGE DALZELL: And neither is the PICs available. MR. BARON: It's certainly not widely available by the evidence presented in this court. JUDGE DALZELL: But what is available is, for example, what Compuserve tried to do, isn't it? What more could Compuserve have done than it did before the FBI visited them? MR. BARON: I don't think that's a good example, your Honor. JUDGE DALZELL: Well, but would you answer my example? What more could Compuserve have than what it did, assuming the CDA applied? MR. BARON: Let me say, Judge Dalzell, that I am not aware of all the facts and circumstances that have given rise to the set of correspondence that was just filed with the Court. And I will say that -- JUDGE DALZELL: I know no more than you do because I read their motion. MR. BARON: Correct, your Honor, and the evidence that submitted as part of the correspondence back and forth showed that the Justice Department was concerned that there may be obscenity with respect to the particular transmissions and forum at issue. And so the transaction was captioned as the Communications Decency Act matter but the Communications Decency Act is obviously broader than 223(d). Congress amended various provisions of the statute, including current existing obscenity law for on line communication. So with that caveat, the question would be whether the posting of material in a Compuserve directory which is an adult directory and where parental controls are known to be in place, if that's the hypothetical that I can sort of boil -- boil down the Compuserve example -- JUDGE DALZELL: Well, it's not hypothetical -- right, and it's labeled, it's labeled adults only. MR. BARON: Correct. JUDGE DALZELL: And not in a titillating way as I recall. It was just text. It was just text. MR. BARON: I will take that as a given, your Honor. The fact is that as we stated at page 62 of our post-hearing brief about other available means by which content providers could avail themselves of the affirmative defenses, and by means of Mr. Keeney's (ph) letter in the Shea case, the answer to your hypothetical would be, I would expect that there would be an affirmative defense in this situation. But that matter would have to be evaluated under the facts and circumstances of the case. But clearly there's an affirmative defense if there's that kind of posting under the available technology today. But we have to go back to the words of the statute. JUDGE BUCKWALTER: So that right now, Mr. Baron -- I'm sorry to interrupt you, but this either indicates the weakness of the Government's case or my lack of understanding, which is considerable in some of these areas. As I understand it now under 5(a) there is no way to take an effective means -- for a speaker -- speaker to take effective means to make sure that someone under 18 doesn't get his material that is indecent or patently offensive. MR. BARON: No, that's not correct. JUDGE BUCKWALTER: What is the way? I thought there was no effective way. MR. BARON: We set out a number of ways in our brief, in our post-hearing brief as well as in earlier briefs in discussion before the Court. JUDGE BUCKWALTER: Please tell me one of them. I must -- maybe I don't understand. MR. BARON: I will concentrate on tagging, because it is the most simple and elegant solution. But you're asking what other means are available. And what we said was that -- JUDGE SLOVITER: Effectively -- JUDGE BUCKWALTER: That's not available now. That's not available now and it's -- JUDGE SLOVITER: It's hypothetical. MR. BARON: I think under a broad interpretation of what is available, the technology exists for putting that into place. It's just a question of, as Dr. Olsen said, four hours of tweaking a Netscape proxy server to have 80 percent of the market put into place. But conceding for the moment the thrust of the question -- JUDGE SLOVITER: Effectively available and has been shown to work, let's put -- is that a fair modification? JUDGE BUCKWALTER: Yes, that's right, yes. MR. BARON: Okay. But understanding your question, we did put forth as a secondary means the means of registering sites to make known to the world what your material consists of. JUDGE BUCKWALTER: I understand that, but that doesn't do -- that's not effective at all, is it under the present -- MR. BARON: Well, I disagree, your Honor. JUDGE BUCKWALTER: Well, how is it effective? I mean that person who registers his site, that doesn't guarantee that someone under 18 won't get into it. MR. BARON: Well, if the test, as plaintiffs would posit it throughout their voluminous filings in this case with declarations and their other papers -- their whole case is that your Honors should rule against the statute because it doesn't guarantee, in your words, or doesn't assure that every minor in the United States -- JUDGE BUCKWALTER: Well, you don't have to do that, but effective certainly means that it has to have something more than no effect, or little, no or little effect. MR. BARON: And the evidence shows that if individual content providers make known to the world their sites that would be otherwise within the scope of the CDA, then that is enormously effective as compared with not making their sites known. JUDGE BUCKWALTER: Oh, well, as compared with not, yes. MR. BARON: And therefore the surfwatches, the cyberpatrols, the major online services that either have in place parental controls today or are imminently about to have parental controls for not only their own proprietary systems but also the Internet, can take advantage of knowing that you're out there. We have heard extensive -- JUDGE BUCKWALTER: You have explained that and that's the position that I understood from the evidence. MR. BARON: And Congress did not say that one needed to take an action so as to be 100 percent effective, 100 perfect. Obviously the case law suggests that enterprising youth in a variety of contexts can overcome whatever schemes are in place. So the question is, is there some reasonable, appropriate and effective measures, and the Justice Department has said it, both in this case as well as the collateral case up in New York, that there are those measures available today. The key is to put the burden on the content provider to do something rather than nothing. Because nothing means that left to its own devices, the parental control software just won't be effective. JUDGE BUCKWALTER: I understand that, but you're saying that something as just simply tagging his material or in -- JUDGE DALZELL: But the something -- what does the something get you? That's what I'm getting at. JUDGE BUCKWALTER: Yes, that's what I -- JUDGE DALZELL: The something that Compuserve did -- we don't have to hypothesize anymore. They did something and it got them headlines in their local newspaper, in the Washington Times and other newspapers that A, undoubtedly was a catastrophe in the corporate life, and B, hurt their business according to Mr. Ennis, which is at least a credible hypothesis that it would do that. That's what you get paid. If you're wrong, you're going to find that your company or your organization is going to be the subject of a headline saying that you're peddling smut. MR. BARON: And I would submit to you, Judge Dalzell, that Compuserve might have a problem today under existing statutes going to obscenity independent of the Communications Decency Act. That might be the reason for the headline as well. JUDGE DALZELL: All I can do is take your colleague in another division at his word. And he cited the Communications Decency Act. He did not cite 1864 or 1865. He cited the CDA. So I'm taking him at his word, that's all I'm doing. MR. BARON: But the correspondence that is of record in this action does explicitly say that the actions that were taken by the Department of Justice in the sort of initial look at this is possibly for obscenity provisions, not just 223(d). It does say that in the correspondence. JUDGE DALZELL: Well, not the one that I saw, but that's all right. Move on. MR. BARON: It's a letter to Mr. Ennis signed by Terry Lord that is at Exhibit 3 -- JUDGE DALZELL: I'm looking at the April 29th letter -- MR. BARON: Right. JUDGE DALZELL: -- the April 29th letter that was sent to -- MR. BARON: There is a further letter. JUDGE DALZELL: -- to the complainant -- MR. BARON: Right, there is a further letter at the top of Exhibit 3 to plaintiff's motion which does indicate that citizen complaints can be reviewed to the extent they may relate to other possible Title 18 violations. And that's really a key to understanding what's going on there. JUDGE SLOVITER: Could I ask you the key -- well, maybe one key. Is it your position, the Government's position, not personally, that a content provider could avoid criminal liability by tagging its material, or would some other action also be necessary? MR. BARON: Merely tagging by itself, just doing the four key strokes, -L18 or putting a PICs-compatible label or self-labeling is today not fully sufficient because you have to do something more. The browsers of the marketplace have not been tweaked or tuned to get that label. JUDGE BUCKWALTER: Well, but what does the content provider have to do with the browsers, in that example? I mean I'm a content provider, I put on there -L18, there you are. MR. BARON: Right. JUDGE BUCKWALTER: Now, I can't help it the browsers aren't configured out there in the market. MR. BARON: Well, that may be right, but the fact is that the evidence by plaintiff's own case shows that the browsers are going to move to a PICs-compatible labeling format which fully assimilates the alternative suggestions of character strings. JUDGE BUCKWALTER: But the point that Judge Sloviter made, I think, is that it is sufficient. All a person has to do, a speaker, is to put -L18. I'm using that example, and that's enough. MR. BARON: We have said in our briefs that on the condition that the marketplace has moved and the testimony before you says that it will imminently, then it would be an affirmative defense. JUDGE SLOVITER: Mr. Baron -- JUDGE BUCKWALTER: That's the -- JUDGE DALZELL: -- the official position of the department. The official position of the department was expressed by the Acting Assistant Attorney General, the Criminal Division, to our three colleagues in New York on May 3, 1996. And the most he would say is, and I quote, "Under present technology, it is the position of the Department of Justice that, absent extraordinary circumstances, such efforts would constitute substantial evidence that a content provider had taken good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to the covered material." Do you find that comforting if you were advising a client? Oh, don't worry, here's a letter from Mr. Keeney (ph). It just says that the jury might acquit you. It doesn't say you won't be indicted, does it? MR. BARON: Well, your Honor, that's not the statute. As plaintiffs would have you rule on it, what they are asking you to say is to strike down the statute because it doesn't as a per se matter establish in all cases what individuals can do. But the statutory scheme, not only in E5, but in the E6 provision, which talks about the FCC describing measures which are reasonable, effective and appropriate and that the use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph 5, the statute is written in the terms of evidence -- JUDGE DALZELL: You mean the same FCC that gave us the Merrill Hansen (ph) decision, that said that the purpose was just one of many factors to consider. MR. BARON: The Congress broadly prescribed that the FCC has a role that it may describe these measures. Along the way, the Department of Justice has in the context of this action, as well as the collateral proceeding in New York, sought to further make concrete what it is that content providers can do. And they said it, that if you do these measures it will be absent extraordinary circumstances, substantial evidence of having an affirmative defense. JUDGE SLOVITER: Mr. Baron -- JUDGE DALZELL: It doesn't say we won't prosecute you. MR. BARON: But that's not what the structure of the statute is either. So -- JUDGE DALZELL: Well, in a First Amendment setting surely you would agree with me that the chilling effect of prosecution is something we need to consider. MR. BARON: Of course, you may consider chilling effect in First Amendment cases. But the -- but what plaintiffs would have you do is penalize the Congress by striking a statute which is very broadly worded with respect to reasonable, effective and appropriate actions. And we've set to put flesh on that both in our briefs and in Mr. Keeney's letter which is not inconsistent with the briefs that we've filed in this action. JUDGE BUCKWALTER: It may be broadly worded but it's impossible to comply with, it seems to me, under the evidence that I've heard, except by virtue of the letter which you now say or someone says it's -- that mere labeling will be sufficient compliance. But -- MR. BARON: Not only is it not impossible to comply with, it's very easy to comply with. Plaintiff's whole case is-- JUDGE BUCKWALTER: The defenses are easy to comply with? MR. BARON: That the -- that the defenses, if the content providers who are putting a material that is sexually explicit within the definition of the CDA out into cyberspace in various forms, if they take just simple measures to ensure that the world knows that they're there, the Department of Justice is saying that that's substantial evidence of an affirmative defense. JUDGE BUCKWALTER: That's not what the act says though. My point is that's not what the act says, that's what the Department of Justice says. MR. BARON: Well, we have keyed our defense of this act to the broadly worded provisions of E(5)(A) as well as the conference report that talks about a content selection standards. And I asked Dr. Olsen whether his scheme was a content selection standard, it is. The self-labeling scheme that's embodied as part of the PICs methodology is a type of content selection scheme for content providers. Congress set it out, we're not departing or going further afield than what's in the conference report. JUDGE SLOVITER: We have before us a motion for preliminary injunction. It seems to me that you are arguing in your defense argument that there will be a way in due course in which one could comply with the statute because the brow-- the market -- and in your brief, the market will rise to the occasion, et cetera. Inasmuch as all we're dealing with is what is available now because we're dealing with a preliminary injunction, why doesn't the Government concede that a preliminary injunction would be appropriate and wait for the permanent hearing until those matters become available so that they can be tested and see if even -- I mean these are the product of Mr. Olsen's creative imagination -- Dr. Olsen's creative imagination. They may work and they may not work. But at the moment we haven't seen anything that does work that wouldn't also effectively block some of the material from adults. And therefore why this big challenge to the preliminary injunction part of it until the market catches up? MR. BARON: Well, we -- I have several responses to that. JUDGE SLOVITER: Yeah, and I'd be interested. MR. BARON: It's not Dr. Olsen's imagination, it is the testimony of plaintiff's own witnesses, both with respect to Mr. Bradner's extensive testimony on the standards and protocols of the Internet and Mr. Vace's testimony about the W-3 consortium. There is a creative genius in the Internet other than Dr. Olsen's own creativity. JUDGE SLOVITER: Yeah, but Dr. Olsen's plan depends on the content provider doing this whereas, as I understand it, the PICs plan necessarily involves the receiver who is willing -- JUDGE BUCKWALTER: Well, a proxy -- MR. BARON: Or third-party labeling services, a complex scheme -- JUDGE SLOVITER: So there's a -- I think that -- yeah. That's a very big difference. MR. BARON: -- where parents would be relying on any number of sources other than the content providers, that the burden is not on the content provider to do anything, although it allows for it, but that Congress would require it. To respond to the point, this -- JUDGE SLOVITER: I mean how can we sustain it today based on some hypothetical catching up in the marketplace in the future? Is really what I'm troubled about. MR. BARON: I would hope, your Honors, that an aspect of your decision would be an acknowledgement of the substantial, if not overwhelming, testimony that the marketplace is poised to provide a tagging scheme which would be a defense under the CDA so that the marketplace, this litigation and the marketplace will catch up with each other. But short of -- JUDGE SLOVITER: Nobody -- nobody said it was really working, as I -- I mean except for soft spots which I, but my reaction was it was pretty minuscule, as you pointed out in cross-examination, in the marketplace, this all is including PICs, something that is supposedly about to happen that all sorts of things can happen that will affect that. And I, just as a practical matter, they put on evidence or testimony of chill or possible -- of chill and that certainly is credible testimony, how can -- how can we as a matter of judicial responsibility sustain against that chill on the basis of what isn't there now? And that's my basic question to you as on the defenses. MR. BARON: Well, obviously if the Court were inclined to say there are no available defense under E(5)(A), then one -- as of today, then one possible action is to suspend implementation of E(5)(A) as opposed to E(5)(B), for a period of time pending development of the tagging schemes in the marketplace. But I am not willing, as I stand here, to concede that the other available means set out in our brief, which include registration or posting to limited participation forums or other matters that are set out -- JUDGE DALZELL: For the credit cards, but of course the people who do that already are the people who are the pornographers. MR. BARON: Well, and there were a variety of other, right, and access codes and third-party registration. JUDGE DALZELL: So the only thing that you're going to prevent if the CDA is sustained are the teasers. MR. BARON: I would beg to differ, your Honor, because there has been testimony from Dr. Olsen, and I realize that there is cross testimony on this, that there are a number of content providers or organizations, non-profits, who can put in place third-party registration schemes as a technical matter or come up with other types of access restriction and proxy server schemes. His extensive declaration on that is part of the record. JUDGE DALZELL: Let's take Mr. Kuromiya's group which is a non-profit group which as I recalled his testimony, of very modest means, okay. So for credit card identification, the evidence is that unless it's accompanied by a commercial transaction, the verifier is going to charge you something. I think he testified that there were -- just pick a number, 20,000 hits a month, okay? That's $20,000 right there, that's $240,000 per annum that I suspect this organization doesn't have for credit card identification. Now, wouldn't you agree with me that Mr. Kuromiya's group, that credit card identification is a non-starter for him? MR. BARON: Uh, I -- JUDGE DALZELL: Because it would come out of their pocket. MR. BARON: I'm not sure I would want to concede all the hypothetical facts in that because, as the Court is well aware, there has been substantial testimony about what hits mean and how it actually translates into real individuals where you would have to do a verification. JUDGE DALZELL: So whether it's 16,407 people instead of 20,000, it's still more money than he has. MR. BARON: I would concede that the credit card defense may not be available to each and every individual who is a content provider, that is correct. JUDGE DALZELL: And in fact, since we're talking about Mr. Kuromiya's group, he wants to reach people under 18. So is that an admission for the Grand Jury? And you know he's going to show them some very graphic depictions of, as I understand it, the male sexual organ, at least the male sexual organ. Okay? He wants to do that and he's probably going to do it in a titillating and pandering way because he wants to get their attention, that's his purpose. MR. BARON: Well, I want to put -- JUDGE DALZELL: So should we say to him get, you know, we'll give you the guidebook to Federal correctional institutions? MR. BARON: Well, I want to put aside as a legal matter for this, for the purposes of this part of the discussion whether or not he -- his actions would meet or not meet the legal standard of patent offensiveness. But he certainly does have a variety of means today to segregate out that portion of his site and perhaps use a third-party registration scheme or some other scheme short of merely relying on tagging. JUDGE DALZELL: No, perhaps I'm not being clear enough. He doesn't want to block to people under 18, he wants to reach them. They're sexually active, he just doesn't want them to die of AIDS, that's all. So he wants to reach them, he wants to entice them to learn about safe sex. MR. BARON: I can't respond to an individual -- JUDGE DALZELL: Is that bad faith on his part? MR. BARON: -- who doesn't want to take advantage of the affirmative defenses, notwithstanding a known quantity that he might otherwise be liable under the act. But let me-- JUDGE DALZELL: So he ought to just take his chances. MR. BARON: But let me say this: the only proposal that the Court has heard as an alternative to putting the burden on content providers that is -- that comes in any way, shape or form in terms of effectiveness is a proposal to block the entire Internet based on unrated sites. And if Mr. Kuromiya doesn't want to rate his site or take any other affirmative action, his site would be blocked under Mr. Ennis' theory of -- JUDGE DALZELL: Ah. MR. BARON: -- the PICs compatible label. JUDGE DALZELL: But that's because the parents of the under 18 year old user have made that decision, a very big difference, you would admit, than the Government making that decision for them. MR. BARON: Well, the fact is that the scheme, I mean the ironic position of the parties before the Court today is that we want the Internet to be available to children based on the findings of Congress that said this is a dramatic, wonderful medium of educational value. And if you look at the proposal to block everything, it makes no sense. 99.9 percent of the Internet or thereabouts, as Dr. Olsen testified, would be blocked if you're merely relying on third-party labeling schemes such as envisioned by PICs to label a few thousand or even tens of thousands of URL's. Professor Hoffman's testimony was at last check there are 22 million URL's just on the World Wide Web. There is testimony in this action that the World Wide Web is growing every two months, that the Internet is doubling nine to -- every nine to twelve months. The third-party labeling schemes such as envisioned just can't keep up and anybody can do the mathematics to show that the effect of a PICs scheme that blocks sites is going to block virtually everything. JUDGE DALZELL: So it's better for Mr. Kuromiya to bear the risk of going to a Federal correctional institution because he guesses wrong? MR. BARON: Uh -- JUDGE DALZELL: As apparently Compuserve guessed wrong. MR. BARON: Your Honor, I just will not concede that Mr. Kuromiya is within the scope of the act for the purpose of this discussion. And if he doesn't want to avail himself of any access measures, well, then -- then he can take the consequences. JUDGE SLOVITER: You referred us to 5(B) as an -- I think you said, well, if 5(A) is not effectively available right now, they still have 5(B). Is 5(B) available, just fill me in on this, to chat groups and news groups and -- or is it the 5(B) being credit card, debit account, adult access code or adult personal identification number. There are lots of speakers back and forth in this whole other area, other than the commercial pornographers. Is 5(B) directed toward them? MR. BARON: There may be -- there are applications that non-commercial providers can avail themselves when they're in those applications that some of these defenses might make sense. It might make sense based on available software on a particular proprietary chat room to have an access code, for example. JUDGE SLOVITER: But you agree that by and large these are not effectively available to most chat rooms and you know the stuff, news groups, is that what they're called? JUDGE DALZELL: Right, right. JUDGE SLOVITER: Chat rooms. MR. BARON: Well, they have to parse it by application but there, certainly there the availability differs by the various applications. JUDGE SLOVITER: I understood your brief to say that it was mostly designed for -- JUDGE BUCKWALTER: For Web sites and bulletin boards, isn't that right, for -- JUDGE SLOVITER: Commercial, yes. MR. BARON: It is certainly possible to utilize E(5)(B) for Web sites and bulletin boards and certainly in the commercial context it's done all the time. JUDGE SLOVITER: Now, as a matter of law, if you are telling us that we should sustain this -- I mean we do deal with law -- if you are telling us that we should sustain the statute based on the availability of defenses and defense 5(A) is not effectively available now and defense 5(B) covers at most only some but not most of the Internet users, then would we be effectively, as your brief seemed to suggest, at least to me, cutting the statute down to apply only to the commercial type user and then we would put in the discussion with Mr. Coppolino who was really purveying pornographic material? MR. BARON: You could certainly, short of striking the statute, you could parse the statute in that manner. JUDGE SLOVITER: Isn't that what we would have to do based on what you say in your brief? MR. BARON: Well, your Honor, let me go back. I understand that there is difficulty accepting an argument that because of the marketplace being poised to do something and the widespread availability today not being there, that the main proposal, which is the elegant, simple proposal that we put forward may not be an available defense. But we've suggested alternatives and I am not willing to stand here and concede that notions of letting your site be known in cyberspace through the registration process that we've suggested, the multiple ways that you can make it known isn't an available defense that the Justice Department would take as substantial evidence en route to where we're going to be in a couple of months time which is widespread availability of tagging schemes. Well, your Honor, with all -- JUDGE SLOVITER: Maybe, I mean, you know. MR. BARON: Well, we've heard evidence of the -- JUDGE SLOVITER: And we saw that they couldn't get, what couldn't we get on the -- oh, we couldn't get London or something. JUDGE BUCKWALTER: We couldn't get Paris so we settled for London. JUDGE SLOVITER: We couldn't get Paris. MR. BARON: No, there are -- (Laughter.) JUDGE SLOVITER: No, I mean all I'm suggesting is that -- and it wasn't really facetious. All I'm suggesting is that technology doesn't always go where you expect it to go. Space ships blow up, also, I mean, so we cannot assume that something will work until it has actually worked. MR. BARON: But we're -- JUDGE SLOVITER: I mean -- MR. BARON: But your Honor -- JUDGE SLOVITER: And that's all I'm -- I'm suggesting. MR. BARON: With all due respect, we are not operating in a vacuum where I'm making an oral argument prior to an evidentiary hearing. We have had five days of testimony. We have a consortium -- JUDGE SLOVITER: And all we got was hypotheticals so that we expect that this will be available. I'm -- I'm looking, I went through this evidence afterwards, based on your brief, and I'm looking for specific examples of operating systems in which your defenses would actually work, not based on something that might happen if you put X together with Y, but this is really working. And except for Surfwatch which you kept pointing out was minuscule, there isn't anything that's actually working that you can point to, to say to a potential defendant: use that. Is there? MR. BARON: Well, I would disagree with that. JUDGE SLOVITER: Well, what -- what would you point us to in the evidence? MR. BARON: I mean the findings that plaintiffs have put in and the evidence of record would suggest that there are other parental controls. JUDGE SLOVITER: But what do you point us to? MR. BARON: I can point you to the fact that the major on-line providers either do or are about to implement-- JUDGE SLOVITER: Are not about to. Do now -- MR. BARON: -- parental controls. JUDGE SLOVITER: This is the preliminary injunction, what do they do now? MR. BARON: For Compuserve or Prodigy, Cyber Patrol is present. So it's a large subscriber base and there are, there are a variety of parental control software products that are out there. What we are suggesting is they are known, they're known to the plaintiffs in this courtroom. JUDGE SLOVITER: But the parental control software doesn't provide a defense to the content provider, does it? MR. BARON: I believe it, not by itself because it doesn't work by itself because of delays and because of the inefficiencies in relying on just sort of an ad hoc matter for them to pick up sites, as we've got abundant evidence. But what the -- the act puts the burden, Congress put the burden on those that would put inappropriate material for children up in cyberspace. And we should let that burden stay where it is and make those individuals do something. And what the -- we have suggested is that en route to the widespread availability of a tagging scheme which, as Dr. Olsen said, take four hours for Netscape to change their proxy server to get 80 percent of the market and those kind of actions, en route to that there are actions that the providers can take today. JUDGE DALZELL: Wait a minute, to beat a live horse-- (Laughter.) JUDGE DALZELL: -- Compuserve has used available options and they're being reviewed, investigated by the FBI. It's not over. MR. BARON: I just will not accept that as a good example because of the particular circumstances of the referral being potentially on obscenity and we've cleared it up in a letter. JUDGE DALZELL: Even though the April 29 letter never mentions it? MR. BARON: Your Honor, well, the prior colloquy would establish. JUDGE DALZELL: No, we have to be -- this is deadly serious to Compuserve, you know, deadly serious. MR. BARON: And I would suggest that -- JUDGE DALZELL: And that's why a preliminary injunction, you know, we have to do these things to get at this now because it's having effects now. If we had any doubt about it, we just read the Columbus Dispatch of the last two days, right? MR. BARON: Well, your Honor, the --there are existing laws on the books about obscenity that are being flouted by individuals, not just in cyberspace, but I mean the fact is that there's a lot of stuff that would meet the obscenity statutes independent of the passage of this act. JUDGE DALZELL: Of course, and nobody is arguing about that here. MR. BARON: And the individuals are putting it up in cyberspace and, you know, they may or may not be prosecuted. Not everybody who drives over 55 miles an hour gets a ticket. JUDGE SLOVITER: Thank heavens. JUDGE DALZELL: Right. (Laughter.) JUDGE DALZELL: All I can tell you, Mr. Baron, is when your colleague, Mr. Moore, wrote to Mr. Truman on April 29, 1996, the only statute he cited was to CDA, the only one. MR. BARON: But -- but, your Honors, as a matter of law the Communications Decency Act did amend obscenity provisions and other provisions that are now part of this litigation. And so I mean it could be fairly read as that. JUDGE DALZELL: So maybe in the Communications Act. MR. BARON: Well, it could be read as -- JUDGE SLOVITER: At the risk of incurring Judge Dalzell's forever anger, let me get you to another point off of the Compuserve. And that is you have in your brief, you say in your brief, you make the argument that chat rooms because that -- go back to my -- and other four that contain indecent material could be segregated to adult areas by -- of cyberspace, I don't understand that argument. Would you explain? Is that what you meant when you said in our brief we raise some others? I don't understand -- MR. BARON: Well, there's -- JUDGE SLOVITER: What testimony you're relying on for that and what it would do. MR. BARON: There -- there are other actions that could be taken -- JUDGE SLOVITER: But you mentioned that one. Where does that appear in the testimony? MR. BARON: The -- the stipulation of the parties and Dr. Olsen's declaration talks about various other applications that you could have limited participation areas or forums whereby you have a known list of people who have a part of that cyberspace forum. It's a limited application. But I'm not suggesting -- JUDGE SLOVITER: Well, wait a minute, would it need to have a gatekeeper, a live gatekeeper in order -- you know, in order to -- somebody -- is that what you mean? I guess I'm trying to find out what you mean by this. MR. BARON: It certainly could have a live gatekeeper who allows access into a forum depending on whether one is an adult. You wouldn't have to have a live gatekeeper, you could set up something else. JUDGE SLOVITER: Now, how do they find out if one is an adult? MR. BARON: Through either supplying credit card or virtual card over the Net or other means by which -- JUDGE SLOVITER: But suppose it's not commercial so you wouldn't have a credit card? I'm just trying, you know, it's vague, I'm trying to put it all together. MR. BARON: There are a number -- JUDGE SLOVITER: I'd like to sustain this but give me arguments based on your record. Go ahead. MR. BARON: Well, there are a num-- number of forms. We have set out in the stipulation so the parties, beginning that they were moderated forums but there's also limited participation forums on list serves or one can set out news groups that are of limited participation or in chat rooms that allow for only adults to be admitted by a gatekeeper or otherwise. But -- JUDGE SLOVITER: Okay, you mean a gatekeeper? MR. BARON: Yeah. JUDGE SLOVITER: Now, you also suggest that -- MR. BARON: I'm not suggesting that's a widespread solution to all the problems in cyberspace, it's a secondary matter that can be taken care of in certain applications. JUDGE SLOVITER: You also suggest that where a proxy server would be a vehicle that would operate with the tagging. What is the current technology that would enable a trusted proxy to obtain the relevant age information and whose testimony do you rely on? MR. BARON: Well, Dr. Olsen testified about the ability to set up proxy servers to receive tags and also to have access codes or hash codes, other type of methods could be set up on particular Web sites to allow for adults coming in. JUDGE SLOVITER: Right, but with all due respect to Dr. Olsen, this is all his hypothetical -- I mean he was, he was really talking as a hypothetical analyst, this could happen and this could happen and the other could happen, is that not correct? MR. BARON: Yes. JUDGE SLOVITER: And there's no evidence that it's currently feasible and happening, is there? MR. BARON: Uhm -- JUDGE SLOVITER: If there is I'd like to know where it is. MR. BARON: Right. No, there isn't evidence that these plaintiffs have put these particular measures into effect, but the evidence suggests that it would be easy to do so and they could avail themselves of the 223(E)(5)(A) provisions for doing so. Obviously it may not be available in all cases. That's why we have emphasized the tagging and registration scheme as a way en route to a better solution which is feasible under the whatever available technology there is to, as the way by which content providers can avail themselves of a remedy. I'm not sure how much -- JUDGE SLOVITER: And the tagging scheme is something that Dr. Olsen thought of after you hired him as an expert as I think the questions brought out when he testified? MR. BARON: He certainly amplified on a tagging scheme which was suggested itself by the legislative history which suggested content selection standards and other available measures would be an affirmative defense. So we weren't inventing something out of whole cloth, we are hooked to the conference report that suggests that measures which plaintiffs here know very much about, given that they represent some of the people that are behind the PICs standard, can effectuate. JUDGE DALZELL: But just in terms of the defense, if Bianca's Smut Shack were to tag itself minus L-18, that doesn't advance the ball one bit, does it, until the software is out there? MR. BARON: Well, Bianca's Cage actually does represent affirmative actions which have been taken by a content provider to provide their IP address, their computer address in cyberspace to the unknowns for blocking purposes. And that, I would submit, is an action which comes within what we suggested at Page 62 of our brief as well as in Mr. Keeney's letter as something that an affirmative action that someone has done. Now, it would have to be evaluated. JUDGE DALZELL: But it has to be effective, doesn't it? You have to, in order to avail yourself of the defense, it has to be effective, doesn't it? MR. BARON: Well, she has given notice in some sense to the world that -- that that page exists. And we are not suggesting that the burden is great with respect to individuals. There are -- JUDGE SLOVITER: But how does that keep under 18's from accessing it? MR. BARON: Because the-- JUDGE DALZELL: Yes, that's exactly what I'm getting at. MR. BARON: Because it notify-- because it does provide for some notification where she hasn't done -- she hasn't availed herself of all the kinds of steps that we set forth in both the letter and our brief, but the fact is that there is some notification to the world of the blocking software that's out there today so as it can be effectively blocked from sectors of -- of -- that are either subscribed to various ISP's or on-line services. It doesn't -- I'm not going to represent -- JUDGE SLOVITER: How do you block -- yeah -- MR. BARON: -- that it's blocked for everybody. JUDGE SLOVITER: But how do you block for Judge Dalzell's ten year old and at the same time let Judge Dalzell see it, if he wants to? MR. BARON: The parents and would be availing themselves of the turning on or off the software or the browser that existed to either block or not block that site. But they wouldn't even know. What if, just imagine, as I've said, we are talking about a vast realm here, it's impressed all the different applications, the Internet. This is a complex area where it's not just one size fits all, there are lots of applications. The fact is that through the affirmative actions that content providers could take, they can make a difference. And maybe they can't make as effective a difference today as if I were back here in July with the PICs standard having been adopted by Netscape and Microsoft. I assure you that if I were here in July and that-- JUDGE SLOVITER: You may be, you know, one way or the other for a permanent injunction. You know, we're going to -- whatever happens they'll ask for a permanent injunction, I guess. MR. BARON: As long as they employ me at the Department of Justice and I'm still on the case, I'll be back here. The fact is I may be back here -- (Laughter.) MR. BARON: -- and arguing that there isn't a more effective solution than what we argued at the preliminary injunction hearing, but that's not to say that there isn't something that content providers can do. And again the irony is that it would be plaintiffs-- JUDGE SLOVITER: But it's not a negligence suit. I think what Judge Dal-- what's been bothering, you know, Judge Dalzell is, one, we're not sure that the U.S. Attorney's Office in all of the districts is as reasonable as you and Mr. Coppolino have been in the course of this litigation. MR. BARON: Well, I -- your Honor, it is not just -- JUDGE SLOVITER: And there isn't -- MR. BARON: -- Mr. Coppolino and I, it is Mr. Keeney who is the acting Assistant Attorney General for all the District Courts in the United States -- JUDGE SLOVITER: Well -- MR. BARON: -- for all U.S. Attorneys making this representation. JUDGE DALZELL: And Mr. Lord. MR. BARON: Yes. And individual cases may be investigated under their facts and circumstances. Now, obviously not under the stipulation for this -- JUDGE SLOVITER: Well, investigation is not a prosecution, so I mean, you know, that I'm -- that troubles me a little less, frankly, than, you know, anybody, the FBI can investigate anybody and, you know, I'm not concerned about that although there might be a chill involved in that as well. Go ahead, Mr. Baron. MR. BARON: Well, I would hope not because it's an isolated case and I'd hope that there wouldn't be. And we are adhering to the stipulation that the Court entered. JUDGE SLOVITER: We don't -- we don't deny that, yeah. Or I don't think the plaintiffs deny that, I don't know. Go ahead. MR. BARON: I would submit to your Honors that we are proposing simple solutions. What plaintiffs are proposing are very complex ones. We have pointed out-- JUDGE SLOVITER: No, the plaintiff wants to declare the statute unconstitutional, period. MR. BARON: But the -- JUDGE SLOVITER: And that's not very complex, when you think about it. MR. BARON: -- solution -- (Laughter.) MR. BARON: The solution for -- for the problem represented that Congress was addressing is not to have parents absorb the costs and absorb the complexity of going out to third-party labeling schemes in the hope of catching particular sites when there is simple actions that content providers can take. That's the essence of our case. We believe the affirmative defenses do work, that we have suggested a wide array of them, both for the future as well as for the present, we believe that those defense -- the actions that content providers can take certainly represent more effective deterrent than relying on Surfwatch alone. And, for that reason, I'd submit that the affirmative defense provisions should be upheld and the CDA should be upheld. JUDGE DALZELL: I don't know whether you or Mr. Coppolino are dealing with the question of the simply talking about defenses. In your brief at Page 37, Footnote 5 and the text associated with it, you heap ashes on Ms. Warren's concern about a prosecution and you ridicule her statement that, quote, "All that is needed is for some person or group of people in some community in the United States to have a problem with my existence on line and to come to the Justice Department with a complaint," close quote, as though that's not depicting reality, that she shouldn't worry about that. Of course, isn't that exactly what happened with Compuserve? MR. BARON: Oh, I -- JUDGE DALZELL: A group went to the Justice Department with a complaint? MR. BARON: There may be complaints, your Honor, that is not a reason for striking down a statute and a facial challenge. These cases have to be -- there is -- there are powerful reasons to let the CDA be upheld and let the marketplace and its creative genius as represented by many of the plaintiffs and the organizations that are here in the court to make -- to ensure that there are measures that individuals can take. And I submit that the briefing in this case is going to look a lot different six months or a year or two years from now because there will be, that if the CDA were upheld, that at least for on a preliminary basis subject to further proceedings, there will be a number of measures which I'm sure the plaintiff's community will come up with as well as, you know, others to ensure that individuals can screen or block inappropriate material. JUDGE DALZELL: But doesn't the record show -- doesn't the record show that they don't need a CDA for this, that the market forces are so powerful, they exist out there without a CDA. Because parents like me and -- are worried about their ten year olds and twelve year olds and America On Line and Compuserve and all these other folks better have an answer soon or they're not going to have my business, or people like me. So that they don't need a CDA to have that goad to come up with that technology, do they? MR. BARON: I think the -- JUDGE DALZELL: I mean that's the record that's been developed here. MR. BARON: It's -- and there -- we are, the two sides are not clashing completely on the issue of the -- the facts that there are parental controls and certainly we are relying in part that they do exist out there. But we have also shown in the testimony Mr. Coppolino alluded to that through cross-examination of Ms. Duvall through Mr. Schmidt's testimony and through Dr. Olsen that the site, that the -- that the third-party software mechanisms just can't keep up. And there are -- there -- it's a flawed remedy and there is a tremendous amount of inappropriate material that will seep through. And I think -- JUDGE SLOVITER: But you know -- MR. BARON: -- otherwise Congress is throwing up its hands. JUDGE SLOVITER: Well -- MR. BARON: And it can't do anything. I mean you heard here an unwillingness on the part of plaintiff's counsel to say that there was any effective legislation which they would substitute for the CDA. JUDGE SLOVITER: I wouldn't expect them to come out, I wouldn't expect the American Civil Liberties Union, knowing its history, to come up with something that required self- tagging or to acquire some. I mean it's just that's an unrealistic position. But you knock their argument that we can use parental controls on the ground well, it's really, and not really effective and they won't be effective. And yet I'll ask you the same question that I asked Mr. Coppolino, on the other hand you're asking us to sustain the statute based on defenses that are not even in being, much less I mean where the technology is not even in being much less not effective. And we won't know whether it could be effective until it's tried and somebody doesn't come up and say to us: well, it isn't really going to work because some clever 16 year old knows how to get around it anyway. Until it works we don't know how it -- until it exists, it isn't working and until it works, we don't know how well it will work. MR. BARON: Well, I -- JUDGE SLOVITER: I mean tell me what's wrong in that problem statement of your position? MR. BARON: You have to accept that on representations going forth from defendants that there are measures which would constitute, absent extraordinary circumstances, substantial evidence of an affirmative defense today. Mr. Keeney's letter says that as well as our brief. If you accept that proposition, then in as applied challenges it will -- the law will develop. And it will also develop that in short -- in very short order there will be an extremely effective solution as we suggested and as plaintiffs have alluded to. So -- JUDGE SLOVITER: I don't want to -- JUDGE DALZELL: By the way -- by the way, for future reference in the event this act would be upheld and I'm instructing a jury as to burden of proof, who has the burden of proof as to these defenses, affirmative defenses, what's your position? MR. BARON: The Government always has, absent a statute, well, let me start again. The Government has the ultimate burden of proof and -- but one would expect that a plaintiff -- I'm sorry, that a defendant in a criminal context would have to make some sort of showing that there is an affirmative defense -- JUDGE DALZELL: Well, they'd make a showing but then the burden of proof -- MR. BARON: -- going forward. JUDGE DALZELL: -- would go back to you to prove? MR. BARON: Yes. JUDGE DALZELL: That it was not -- MR. BARON: Yes, unless there's unusual circumstances, statutory or otherwise, that would be the usual formulation. I have no further questions -- or no further -- (Laughter.) MR. BARON: -- remarks to make, subject to your further questions. JUDGE SLOVITER: Well, I will say, as I always do in the Court of Appeals, that questions do not indicate that the panel has reached any conclusion at all and the fact that we have asked both you and your colleague, Mr. Coppolino, pointed questions and that you have answered very well doesn't mean really -- you know, we just ate lunch, we didn't confer. (Laughter.) JUDGE SLOVITER: Thank you. MR. BARON: All right, thank you. MR. HANSEN: Your Honors, might I ask that we take a very brief recess between at this point so that Mr. Ennis and I can confer to determine whether we feel we need rebuttal argument and, if so -- JUDGE SLOVITER: All right, especially if you come back and you tell us you don't need rebuttal argument, five minutes. MR. HANSEN: Well, at least to make it more efficient. JUDGE SLOVITER: Okay. MR. HANSEN: Thank you. JUDGE SLOVITER: Is that all right? No, five, let's, I mean you can do that in five minutes, can't you? MR. HANSEN: Absolutely. JUDGE SLOVITER: Yeah, cause we... (Court in recess; 2:46 to 2:55 o'clock p.m.) MR. HANSEN: Well, your Honor, I'm sorry, we weren't able to restrain ourselves completely from any rebuttal argument, but I think we've managed to make it quite -- both Mr. Ennis and I will be quite brief. JUDGE SLOVITER: How brief? MR. HANSEN: I will take less than -- if I got no questions I would use less than five minutes. JUDGE DALZELL: Okay. MR. HANSEN: If I get questions, I can't -- JUDGE SLOVITER: You don't want equality? MR. HANSEN: Certainly I can't speak, nor can I speak for Mr. Ennis as to how much time he's going to need. I'd like to pick up on the discussion that the Court was having with Mr. Baron at the end in the nature of the changes in technology that may or may not occur over the next six months. And I'd like to talk about how even if technology does in fact change over the next six months and even if we are back at a -- at the final injunction stage six months from now and PICs has come into place or PICs hasn't come into place, I think there are still two things that are enormously troubling about this statute and which I think the Court must necessarily wrestle with. The first is the nature of the speech that is criminalized under this statute. And if we had any doubt at all about the intent of Congress to reach valuable speech under this act, all we have to do is look at the statute. At three separate occasions in the statute Congress reached out to say we intend the statute to apply to libraries and we intend the statute to apply to institutions of higher education. Congress, I think, was making it unmistakably clear that they intended to reach out and criminalize -- JUDGE SLOVITER: Is that in 223? MR. HANSEN: It's at three separate occasions in the statute, your Honor. JUDGE SLOVITER: Yeah, but it's a big statute, do you mean the two sections that -- MR. HANSEN: Yes. JUDGE SLOVITER: -- you are challenging? MR. HANSEN: Yes, yes, it is in the sections we're challenging. The first place it appears is in the 223(F) in the definitional section. You know, 223(H) in the definitional section where it talks about the term "library" means library -- means -- (Laughter.) MR. HANSEN: -- means library is defined in another statute. Earlier in -- and that's H. Earlier in F there is a preemption clause which says "No state or local government may impose liability for commercial activities or actions by commercial entities, non-profit libraries or institutions of higher education that are different. And then finally later there's another definition section defining interactive computer device which specifically also includes libraries and institutions of higher education. Now, in addition to that, the Government's proposal-- JUDGE SLOVITER: Excuse me. MR. HANSEN: Yes. JUDGE SLOVITER: It says that but where does it-- I just want to know for my own benefit because we finally got it, you know, through the computer, I think. Because up until now it's been a relatively new statute. Where is the prior reference in those two sections to institutions of higher education and library? MR. HANSEN: Well, the -- the term interactive computer device is defined to include interactive computer devices used by libraries and institutions of higher education. JUDGE SLOVITER: I see. MR. HANSEN: So the prior -- the cross-reference-- JUDGE SLOVITER: That refers to A. MR. HANSEN: That's -- you're correct. JUDGE SLOVITER: That would then refer to Subsection A where they use interactive computer things. D? JUDGE DALZELL: D. JUDGE SLOVITER: Okay. MR. HANSEN: D, right, it refers to Subsection D, that's right. JUDGE SLOVITER: Go ahead. MR. HANSEN: The second and final point I'd like to make concerning the nature of the speech here is that the Government's ultimate proposal is that technology will develop to appoint where they think it will be possible for speakers to label themselves as indecent speakers or not as indecent speakers. They think it will become possible at a time when the Government can compel people to issue a label before they speak describing their speech as indecent or not indecent. Even if that is to come to pass, the notion that the Government can impose upon all of us, upon the millions of people who use the Internet in the context of the Web, in the context of the news groups and chat rooms, the requirement that before we speak we label our speech as decent or indecent, in our view, represents a serious constitutional problem, one that is sufficient to justify this Court in declaring this statute unconstitutional, even in the event the technology comes about as the Government predicts. Thank you, your Honors. JUDGE DALZELL: Thank you, Mr. Hansen. MR. ENNIS: I'd like to make three brief points, your Honors. The first is, is that with respect to news groups, chat rooms and lists or mail exploders, everyone agrees, including the Government's expert, that there is no technology available now, there is none in the pipeline, there is not going to be any here in July that makes it possible to speak in those forums by getting a credit card, an adult ID number, anything like that. And I simply refer the Court to our proposed findings of fact, 862, 883, 884, 894, and 901 where that evidence is summarized. Second, with respect to tagging, I think it's important to recall that the Government admitted here tagging is not a defense today because the browsers are not set to read those signals today. But even if today all the browsers in the world were in place and set to read those tags, it's still not a defense. At most, it's substantial evidence, it's not a defense. It's not a truly safe harbor. So we're not going to be in any different position in July from the position we're in right now. Third, I think it would be strange indeed for this court to construe this statute to make tagging a defense because, as Mr. Hansen pointed out, any requirement that speakers self-label their own speech as a condition of speaking would violate the doctrine against compelled speech which was Meese v. King, Wooley v. Maynard, the Riley case. Attaching a pejorative label to your own speech is something the First Amendment forbids the Government to require you to do. And I think it's also not even necessary to reach that difficult constitutional question because as the NTEU case makes clear, you should never construe a statute in a way that would simply create a new First Amendment problem which requiring speaker self-tagging would do. Furthermore, there's no reason to construe this statute that way because there's no reason to believe Congress had any intent whatsoever to require speaker self- labeling or tagging. In fact, if you look at the Communications Decency Act, in the very next section of the same act passed by the same Congress on the same day, Congress specifically rejected speaker labeling of indecent or sexual speech by broadcast speakers, the medium that is the most amenable to Governmental regulation, precisely because Congress had serious concern whether they could constitutionally require broadcast speakers to self-label their own speech. It's incredible in that context to think this Congress intended speaker self-labeling in the Internet context. Thank you very much. (Discussion off the record.) JUDGE SLOVITER: All right, thank you all very much. We will close the -- adjourn the hearing and you will hear from us. The press seems to think it knows when we will decide this case, to my amazement. It makes that -- those hypothetical, well, it makes that judgment without any communication with us and you will hear. We know that there are some motions pending, but you will hear from us on all those matters in due course. Thank you very much. I want to thank counsel very much. I find that having come to the District Court level for this type of -- counsel has been exceedingly cooperative, all counsel, and very helpful throughout and I do thank you all. And you can show this part of the transcript to your superiors. (Laughter.) COUNSEL: Thank you, your Honor. (Court adjourned at 3:05 o'clock p.m.)
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