In a lively, fractious, sometimes funny 70-minute session, the US
Supreme Court this morning heard arguments in the case of the
Communications Decency Act, aka Reno v. ACLU. The case, which will
decide the constitutionality of the year-old (but never enforced)
federal ban on online indecency, is the first time the court has been
asked to rule on the question of free speech in cyberspace. And
although there are few more treacherous occupations than reading the
court's tea leaves, the behavior of the justices hinted strongly that
the CDA is dead meat.
Arguing the case for the government, Deputy Solicitor General Seth
Waxman had his hands full. Waxman spoke first, and was subjected to a
steady barrage of plainly skeptical questions from justices Sandra Day
O'Connor, Stephen Breyer, Ruth Bader Ginsburg, David Souter, Anthony
Kennedy, and John Paul Stevens.
In a sharp tone of voice, O'Connor suggested that, considering the
nature of the Net, the CDA's use of the adverb "knowingly" - as in to
"knowingly" transmit indecent material to minors - was "virtually
worthless."
Breyer expressed, again and again, his concerns that the CDA would
turn teenagers who use the Net to talk about their sexual experiences
into federal felons. ("You mean there's not a high school student
exception?" cracked Justice Antonin Scalia.)
Kennedy asked Waxman whether he thought it would be permissible to ban
adults from smutty talk in public parks just because kids might
overhear them - a question that led to a colloquy in which Waxman
claimed, incredibly, that the Net was not a "public forum."
And when Souter's probing about whether parents could be imprisoned
for letting their kids look at racy stuff online led Waxman to claim
that parents weren't the CDA's real targets, Souter accused the
government's lawyer of "grabbing exceptions out of thin air."
The lawyer for the anti-CDA forces, Bruce Ennis, had his share of
tough questions, too - only almost all of them came from Chief Justice
William Rehnquist and Justice Scalia. As ever, Scalia was particularly
nettlesome: sharp, acerbic, and terribly clever.
When Ennis noted that screening by age was only technologically
possible in one corner of cyberspace - the Web - Scalia asked what was
wrong with asking speakers who want to be naughty to do it there. When
Ennis said that even on the Web the cost of such screening was
"prohibitively expensive," Scalia pointed out that the definition of
"prohibitive" depends on the goal you're trying to achieve. And, as if
he were laying the groundwork for future battles, Scalia repeatedly
argued that with the rapid pace of change - "I throw away my computer
every five years," he said - whatever is technologically impossible or
prohibitively expensive today might not be that way for long.
"Isn't it possible that this statute is unconstitutional today ... but
won't be unconstitutional two weeks from now?" Scalia asked.
But while Scalia and Rehnquist tag-teamed Ennis, the rest of the
justices asked him few questions, and the questions they did ask were
of a much friendlier tenor than had been the case with Waxman.
Before Wednesday's arguments, the question of just how Net-savvy the
justices were had been the subject of much speculation, little of it
kind.
Chris Hansen of the ACLU, who was Ennis' co-counsel, made only one
prediction: that there would be no questions about what he called "CGI
script," in reference to the ubiquitous technology on the Web that can
be put to use screening users by age. But, amazingly, CGI scripting
was the subject of the first question of the day, from O'Connor, who
wanted to know the precise percentage of Web sites actually equipped
to use it.
Indeed, though there was the occasional moment of technological
confusion, most of the justices seemed fairly switched on - if not
regarding the details, then at least regarding the big picture of what
the Net is all about. Justice Breyer, in particular, drew an analogy
between the Net and the telephone system; even Justice Scalia went on
at length about how the court was in uncharted territory. And the very
fact that so many of the justices took active part in the discussion -
all of them, actually, except for Justice Clarence Thomas, who sat
through much of the proceeding with his head resting on his hand,
stifling yawns - was a sign that the court recognized the stakes of
the case before it.
In the closing minutes of his argument, Ennis was cruising. Compared
with Waxman, he had been fairly successful at getting his arguments on
the table; even after dodging the ink pellets flicked by the
Frankenstein and Don Corleone of archconservative jurisprudence, Ennis
found time to pick up on Breyer's telephone analogy, and to expand on
the parents-in-the-slammer hypothetical that Souter had put to Waxman.
At least three times, he was able to state his central claim: that, in
the guise of protecting children, the CDA operates as a ban on adult
speech that is constitutionally protected.
After Ennis finished, Waxman rose to give his rebuttal - to use the
time he had saved from his first go-round. He had five points to make.
Rehnquist told him he had one minute. In the middle of his second
point, Souter interrupted him, and in the middle of his response to
Souter, Rehnquist cut him off and brought the show to a close. It was
that kind of day for the government.