Janet Reno, Attorney General: of the United
States, et al.
v.
American Civil Liberties Union, et al.
Washington, D.C.
Wednesday, March 19, 1997
The above-entitled matter came on for oral argument before the
Supreme Court of the United States at 10:06 a.m.
Appearances:
Seth P. Waxman, esq., Deputy Solicitor General, Department of
Justice, Washington, D.C.; on behalf of the Appellants.
Bruce J. Ennis, esq., Washington, D.C.; on behalf of the
Appellees.
C O N T E N T S
Oral Argument of Seth P. Waxman, esq.
On behalf of the Appellants
Oral Argument of Bruce J. Ennis, esq.
On behalf of the Appellees
Rebuttal Argument of Seth P. Waxman esq.
On behalf of the Appellants
Mr. Waxman: Thank you. Mr. Chief Justice and may
it please the Court:
The Internet is a revolutionary advance in information
technology. It also provides a revolutionary means for displaying
patently offensive, sexually explicit material to children in the
privacy of their homes.
With as many as 8,000 sexually explicit sites on the World
Wide Web alone at the time of the hearing, and the number estimated
to double every 9 months, the Internet threatens to render irrelevant
all prior efforts to protect children from indecent material.
All of the laws regulating the display of indecent
materials in theaters and book stores, on radio, TV, cable, and
telephone, all of these approach insignificance when the Internet
threatens to give every child with access to a connected computer a
free pass into the equivalent of every adult bookstore and video
store in the country.
Congress debated for a year-and-a-half before enacting the
Communications Decency Act which, as we explain in our brief,
contains three distinct provisions.
Let me go right to the broadest one, which prohibits the
display of patently offensive material "in a manner available to
a person under 18 years of age."
When read together with the statutory --
Question: That is (d)(1)(A)?
Mr. Waxman: That is (d)(1)B).
Question: (d)(1)(B). Thank you.
Mr. Waxman: When read together with the statutory
defenses, this provision permits persons to post indecent material on
the Internet so long as they take reasonably effective steps not to
expose it to children.
The district court found that on the World Wide Web, where
most of the material that concerned Congress is posted, it is
technologically feasible for speakers to screen for age, and on
commercial sites that is commonly done.
Even as to noncommercial sites, the evidence showed that
the technology exists, and is operating, to provide adults with a
verification code that allows them to access adult-only sites at no
cost to those who post information on those sites.
Question: Mr. Waxman, does that technology require
use of something called CGI --
Mr. Waxman: It does --
Question: -- in order to screen it out, in effect?
Is that the mechanism by which that can be done?
Mr. Waxman: The -- Justice O'Connor, the mechanism
by which a Web site can screen for age, or a particular page, or
indecent material on a Web site could screen for age is, or at least
at the time of the hearing was by the use of something called CGI
script.
But the obtaining of an adult ID is something that the
unrebutted evidence showed was a service that even at the time of the
hearing, without the benefit of the Communications Decency Act in
effect, an adult, somebody over 18 who wanted to view patently
offensive material on a screen site could, for $5 a year, obtain an
adult identification that would give that person access to any and
all adult sites, and --
Question: Of course, the problem is not at that
end. It is at the other end. How can a person putting material out
in the system assure that it's only going to be accessible by
somebody with that code?
Mr. Waxman: Exactly, and what the record -- what
the district court found as fact was that on the World Wide Web it is
technologically feasible and economically feasible, either by use of
a credit card, which is more expensive, or by requiring the punching
in of an adult ID code that is available from a third party for as
little as $5 a year, to get access, but the technology on the World
Wide Web exists to display this.
Question: Well, how does that fit in with use of
Web sites by noncommercial users, or just private individuals or
libraries, or something of that kind?
Mr. Waxman: Do you mean use, that is that they want
to view material, or use that they want to post indecent
material?
Question: Both.
Mr. Waxman: Okay.
Question: I mean, the library wants to have
material on its Web site which might be viewed as indecent, I guess.
We're not talking about obscene material --
Mr. Waxman: That's right.
Question: -- are we?
Mr. Waxman: That's right. Let --
Question: We're talking about some other category
of material.
Mr. Waxman: Let me address the example of the
library.
Question: And while you're at it, I want you to
tell me how -- what percentage of Web sites are incapable of using
this CGI script, do you think?
Mr. Waxman: Okay. Let me --
Question: Not all of them can use it, and so I
--
Mr. Waxman: Well, let me answer your second
question first and then go to your library example, but the testimony
in the record before the district court was that on -- for certain
third party access providers like America Online and CompuServe,
which allow customers to create their own Web sites for free, they do
not currently have CGI software, so for example I, I am a member of
America Online. If I want to create my own Web page I have to go to
somebody else.
There are hundreds, if not thousands of servers that you
can go to to create a Web page. I would have to write my own Web
page on something other than America Online, or of course America
Online could simply adopt CGI script, which at the time of the
hearing at least it had chosen not to do.
Now, as to the library, the Carnegie Library is an appellee
in this case, and it is a very good example of what we think
represents the overblown nature of the challenge to this act.
The library wants to do two things. It wants to put its
card catalogue on line so that anybody anywhere in the country can
see what it is that the Carnegie Library has, and it also wants to
put on line journals and abstracts that it in turn receives on line
in an electric form.
Now, the definition, the accepted definition of what is
patently offensive, that is a term of art. It is very narrow, and it
is exceedingly difficult to see how it would apply to more than a
handful of cards in a card catalogue, but to the extent that it does,
you can simply run it through some sort of word processor or computer
program to screen -- it's only text, after all, on cards, and if you
find a card that --
Question: Mr. Waxman, may I ask you to go back to
the first point that you were answering, because I'm puzzled. I
thought the district court found as a fact -- and this is at 929
F.Supp. 846 to 847 -- found as a fact that noncommercial
organizations particularly would find age verification prohibitively
expensive and that indeed, in the Shea case, that same fact-finding
was made.
Mr. Waxman: That is correct, and we do not think
that that finding, as we read it, Justice Ginsburg, is either clearly
in error or in error at all.
What the court found, though, was that for noncommercial
Web sites -- that is, people who aren't businesses that want to post
speech on the World Wide Web -- it would be prohibitively expensive
to create their own adult validation system. That is the finding
that the court made on page 55a of the Joint Appendix. I do not have
the F.2d site, but that was not the only -- or F.Supp. site.
Sorry.
That was not the only other alternative. We put on -- in
response to their claim that the Communications Decency Act acts as a
ban, we put on evidence showing that even prior -- even before the
CBA came into effect there were third party entities that on line
would provide any adult with an adult number for a fee of between $5
and $9.95 a year, at no cost to the person who wants to create their
own Web site and put indecent material on it, which would allow you
to go to any of those Web sites, or any of those pages, punch in your
number and get access to it, and there was -- that evidence is
unrebutted on the record.
So while we don't challenge the court's findings that if
people like you or I wanted to post our -- or nonprofit organizations
wanted to create their own adult verification system it would be
unduly expensive, we do challenge the adequacy of that finding to
support the conclusion that this statute is unconstitutional on its
face.
Question: May I ask you just for a little more
clarification about your specific example of the Carnegie --
Mr. Waxman: Yes.
Question: -- the library posting a card that they
know would violate the statute if it is read by an -- 17-year-old.
Now, what does this software do exactly, that you are describing? It
identifies all the adult people who have access to adult material.
That means that anybody who does not have that cannot see it?
Mr. Waxman: What the -- Justice Stevens, what the
-- if the library found that there were any library cards that
contained material that could be deemed patently offensive, they
would take the --
Question: Let's assume they know something would
be, so it --
Mr. Waxman: Okay. Let's assume there's that. If
they had that, what they would do is, with respect to those cards, or
those journals that they know to be patently offensive, they would
put them in a little section of their Web site in which to get access
to it. If you want to see -- we have certain other cards --
Question: So that everyone who does not have the
adult identification equipment, whatever it is, those people just
don't see it.
Mr. Waxman: That's right.
Question: So that in order to get access to that if
you're a viewer, you have to do whatever's necessary to become an
identified adult.
Mr. Waxman: That's right. It's the exact analogy
to what may very well happen to the Carnegie Library itself in
Pittsburgh.
Question: What if --
Mr. Waxman: Pittsburgh may have an ordinance that
requires that patently offensive material be kept --
Question: What if an identified --
Mr. Waxman: -- in a different room and
supervised.
Question: What if an identified adult wrote the
library a letter and said, I have the adult stuff, but I have a
17-year-old son that I'm going to have watch this with me. What
should they do?
Mr. Waxman: Well, the act does not make illegal the
provision to adults of this material. If a father or mother --
Question: They would know there's a 17-year- old
the audience.
Mr. Waxman: If -- well, I think here it depends a
little on the mode of communication. If I -- if you ask me to send
you an indecent E-mail, and you tell me that your son is sitting
right next to you and is going to read it --
Question: No, but my motive is that I'm Anthony
Comstock, and I don't want this stuff to go out, so I'm telling you
I've got a 17-year-old son who's going to help me police the
airwaves.
Mr. Waxman: Then I -- then under the specific child
and transmission provisions as well as the display provision, you
could not send it, but there is nothing to -- there is nothing in
this act that in any way gets in the way of adult-to-adult
communication.
I may very well find that my 16-year-old son in my
judgment, in my responsibilities rearing my child, should be able to
see material that a jury would find patently offensive, and I can
certainly do that.
Question: You're saying that any adult has a
heckler's veto on the whole operation by simply saying I'm going to
let my child watch it?
Mr. Waxman: Oh, no. No, no. Absolutely not.
Question: Well --
Mr. Waxman: The only thing that is prohibited under
-- if I can separate out the provisions, under the two more specific
provisions, what we call the transmission and specific child
provision, they only apply to transmissions where you know that the
recipient, or a recipient is a child. If you don't know that,
actually know it, it doesn't apply.
Now, on the display provision --
Question: It's more than knowing it, isn't it? You
have to send it to a specific person under 18.
Mr. Waxman: Yes. Knowing --
Question: And it seems to me if you're sending it
to the adult and he says, by the way, I'm going to have a child
watching, you're not sending it to the child.
Mr. Waxman: That is --
Question: You're sending it to the adult.
Mr. Waxman: That is absolutely right. Now, the --
what becomes more problematic is the display provision, because it is
broader.
Question: Yes. Those two other provisions, as you
interpret knowing, are virtually worthless as I understand it. I
mean, they're not going to accomplish much.
Mr. Waxman: They are actually very, very important
to us in terms of our prosecutions of sexual predators.
Question: Which two provisions are you talking
about?
Mr. Waxman: This is -- I think it's (a)(1)(D), the
--
Question: Transmission --
Mr. Waxman: -- transmission provision, and
(d)(1)(A), the specific transmission, the specific child provision.
They are really designed, Justice O'Connor, to get at the determined
sexual predator.
Question: Well, is it the case under those
provisions that -- suppose a group of high school students decide to
communicate across the Internet, and they want to tell each other
about their sexual experiences, whether those are real or imagined.
They're all -- every high school student who would do this is then
guilty of a Federal crime, and subject to 2 years in prison?
Mr. Waxman: If high school -- I mean, when you say
they want to talk about their sexual experiences --
Question: That's been known to happen in high
school.
(Laughter.)
Mr. Waxman: I'm shocked to learn that there is
gambling in this establishment.
(Laughter.)
Mr. Waxman: There is a big difference, Justice
Breyer, between discussing sexual experiences and communications and
speech that is patently offensive as that term of art has come to be
understood.
Question: Well, I mean, I even imagine high school
students might read from, let's say, books or magazines that have
what people might think of as patently offensive ways of describing
those experiences. If you get seven high school students on a
telephone call, I bet that same thing happens from time to time.
Mr. Waxman: It may.
Question: And so my concern is whether, analogizing
this to the telephone, it would suddenly make large numbers of high
school students across the country guilty of Federal crimes as they
try to communicate to each other either singly or in groups. That's
one concern I have.
Mr. Waxman: If high school students, like anybody
else, communicates what a jury would find and what this Court would
establish, given its responsibility to create a constitutional floor
to be patently offensive within the meaning of this statute, they
would violate it, because the alternative --
Question: There's no high school student
exemption?
(Laughter.)
Mr. Waxman: Justice Scalia, you may find it in the
legislative history, but it is not apparent on the face of the
statute.
(Laughter.)
Question: Wouldn't there then be a --
Mr. Waxman: My point, if I could just finish,
Justice Breyer, there is something that is -- there is a deadly
serious point here, and that is that when the alternative is that
every child in this country who has access to a computer and can
click a mouse has access in his or her own bedroom or home or library
to Hustler Magazine and Penthouse Magazine, and the kind of indecent
speech that people sitting in the anonymity of their own bedrooms
anywhere in the world or anywhere in the country wants to make
available to them, we think that this is a small price to pay, and
Congress could legitimately say that this is a narrowly tailored
alternative.
Question: That's the --
Question: I take it then that you would also defend
the constitutionality of a statute which, tracking the words we have
here, prohibited indecent conversations on a public street with
minors present --
Mr. Waxman: I think that --
Question: -- or between minors.
Mr. Waxman: Well, I think that a municipality
certainly could. I think it is a harder case, but I think a
municipality could make it a crime for an -- for two adults to engage
in patently offensive, sexually explicit communications in the
presence of a minor child.
Question: Why is that a harder case? It seems to
me easier. It's easier to verify.
Mr. Waxman: Oh, it's a harder --
Question: The presence of that minor.
Mr. Waxman: It's a harder case because a public
park is a -- it's a free space. It's an area where, unlike the
Internet, speech is free, which --
Question: You're asking us to say that the Internet
is not a public forum.
Mr. Waxman: The Internet is -- we don't think it
is, but if it is, in any event it certainly is, like other public
forums, subject to reasonable time, place, and manner
restrictions.
Question: A public forum is something created by
the Government, isn't it?
Mr. Waxman: Right. Right. We don't think it's a
public forum, whereas a park would be, but let me -- if I can just
--
Question: Well, it's a pretty public place, though,
because anyone with a computer can get on line --
Mr. Waxman: Right, and -- yes, and that is one
--
Question: -- and convey information and images, so
it is much like --
Mr. Waxman: It's one of the --
Question: -- a street corner or a park, in a
sense.
Mr. Waxman: It's one of the wonderful things about
it, and if I can just finish answering Justice Kennedy's question,
you know, if a theater company wanted to put on a production at the
Sylvan Theater on the National Mall that contained material that was
patently offensive -- I don't know what a current production would
be, but assume that they did. It would not be at all unreasonable or
unlawful for the Park Service to say, you have got to screen for
age. You have got to require people to show adult ID. You have got
to cover the --
Question: But that's in the commercial context, and
Justice Breyer's question and my following question pertained to
people that don't have counsel, that aren't broadcasters or regular
Net users which understand what the concepts of decency or indecency
are in any institutional sense, and conversations between two minors,
between a minor and an adult, between two adults on public streets
and public places would all be prohibited, it seems to me, under your
analysis in this case.
Mr. Waxman: It's -- I think the analogy here really
is to Renton and Young. This is really a zoning issue.
Let me give you an example. Let's assume on the Mall
--
Question: May I suggest -- before -- it seems to me
that the case that Justice Kennedy poses is a more difficult case,
but isn't the reason that -- I don't think people throughout the
country are worried about their kids hanging around conversations
going on on the public street.
Isn't the scope of the risk involved very much related to
what the Government can do by way of avoiding that risk?
Mr. Waxman: I don't think there's any question
about it. I mean, what Congress was faced with, and what the record
below shows, if you look at the testimony of Mr. Schmidt, our expert,
and the exhibit that he produced of the sites that he visited on one
visit, the problem is very, very serious.
But even looking to the National Mall example, Justice
Kennedy, if a park policeman finds somebody sitting on one of the
benches on the National Mall making a speech with a bull horn or
speaking in such a loud voice that it can be heard by others, and
using patently offensive language, I don't think there's anything
constitutionally impermissible with saying, sir, if you want to do
that, there's a specific place on the Mall for that, or for $3 you
can buy a cone of silence, and we'll put you in this little cone and
you can talk to yourself.
Question: The point of my --
Mr. Waxman: And that's what this is about.
Question: Mr. Waxman, you know, there was once
prevalent throughout this country a kind of ordinance that went like
this. It made it a misdemeanor to use offensive language in the
presence of women and children.
I was wondering while you were speaking whether you were saying
the assumption that those laws are no longer tenable would flunk the
First Amendment, that that's not a correct assumption.
Mr. Waxman: Those laws, Justice Ginsburg, are
distinguishable in two very fundamental ways, and it's critical, I
think, to this case.
One, this Court has recognized that, as opposed to minors,
there is a constitutional right to make indecent, patently offensive
speech to adults, and insofar as this was trying to protect women
from hearing such speech, that would be unconstitutional.
Secondly, the notion --
Question: Well, let's take out women. Just
children.
Mr. Waxman: Okay. The notion in those laws -- this
is my second point -- of what is offensive was I think subject to a
very serious vagueness challenge.
What we have here is a definition of patently offensive
material that is not vague, that has been held by this Court and the
FCC and the lower courts not to be constitutionally vague, and we
have set out at page 17 of our reply brief pretty much in haec verba
what a jury would have to be instructed in determining whether
something was patently offensive under their prevailing community
standards.
And added onto that we also have now, in light of Miller,
and Jenkins, and Hamling, and Ferber, this Court's unequivocal
statement that in the area of patently offensive, where First --
where there is a First Amendment implication on where the floor is
drawn, the Court will and must draw a constitutional floor below
which juries and legislatures can't go, so we have a standard here
that has been accepted, and can be refined by this or other
courts.
Question: Mr. Waxman, let me ask you another
question more or less along the lines, I guess, of Justice Breyer's,
who spoke of the high school students who might go to prison. If we
combine the display section and the knowingly permit section, I take
it that a parent who allowed his computer, the computer that the
parent owned, to be used by his child in viewing offensive material,
indecent material, the parent would also go to prison, I take it.
Mr. Waxman: I don't see why that would -- maybe I'm
missing something --
Question: Well --
Mr. Waxman: -- in the language, but it prohibits a
transmission.
Question: -- it's an offense to display the
material, as I understand it under the display section, where minors
will obtain it, and if a parent says I'm going to allow, knowingly
allow my computer to be used by my child to observe these displays,
isn't the parent therefore guilty of the knowing, under the knowingly
permit section?
Mr. Waxman: I don't think so. This is a statute
that is self-consciously directed solely at the content provider, the
person who is putting --
Question: No, but this isn't a content
provider.
Mr. Waxman: -- information on the World Wide
Web.
Question: It's a person who knowingly permits a
device under his control to be used in effect to accomplish or
facilitate any of these other offenses, and one of the offenses is
the display offenses, and if the parent says, my computer can be
used, in effect, to complete this display offense, because I'm going
to let my child view it --
Mr. Waxman: I see your point. I --
Question: -- why isn't a parent guilty?
Mr. Waxman: Well, you're referring here -- I now
understand. You're referring here to a separate -- a provision
separate from the three provisions that are at issue in this case.
That is, (c) -- I can't remember. In any event, the knowing
permission provision. It's number --
Question: (d)(2), and according to the three- judge
district court --
Mr. Waxman: Yes, (d)(2).
Question: -- plaintiffs also challenged those
provisions.
Mr. Waxman: Well, we think -- we think that in
order to -- if necessary to save the constitutionality of that
provision, this Court certainly could exempt the provision of this
material for parents. I mean, one of the major --
Question: How -- you mean under the -- by
severance.
Mr. Waxman: Well --
Question: Under severability?
Mr. Waxman: Well, you can call it a --
Question: Wouldn't that be unconstitutional?
Mr. Waxman: If you found it would be
unconstitutional -- I can think of instances in which it might
actually constitute child abuse, which this Court's --
Question: I take it you agree that the parent would
be guilty under that section.
Mr. Waxman: I think it depends on the way you
construe it. This Court has the power and the authority in dealing
with a statute which is either arguably vague, or arguably overbroad,
to construe it or to partially invalidate provisions or applications
to save the constitutionality. That's --
Question: How could I construe it more narrowly
than my hypothesis?
Mr. Waxman: You could --
Question: What do you have in mind?
Mr. Waxman: You could certainly construe it to
exclude parents. You could certainly say --
Question: That would just be grabbing a limitation
out of thin air.
Mr. Waxman: It wouldn't any more be grabbig it out
of --
Question: Exclude parents --
Mr. Waxman: Let me just say, it wouldn't, because
there's a very clear record before Congress that what Congress was
concerned about was not protecting children from their parents, but
protecting children and their parents from the children getting
access to material that the children --
Question: I could view this but Justice Scalia
couldn't.
Mr. Waxman: No, I think Justice --
(Laughter.)
Mr. Waxman: Justice Scalia could and would, because
--
(Laughter.)
Mr. Waxman: I didn't say will.
(Laughter.)
Mr. Waxman: If you look at cases that this Court
has decided with respect to overbreadth, this would be, I suppose, an
overbreadth challenge that it includes parents, or doesn't exclude
parents.
Question: Well, I --
Mr. Waxman: This Court would --
Question: At this point it's an overbreadth -- I
suppose it's an overbreadth challenge when you say well, it's
interfering -- not as a matter of overbreadth. It's interfering with
the relationship between parent and child.
Mr. Waxman: Yes, and you could do exactly what you
did, for example, in United States v. Grace, where there was a
criminal prosecution for demonstrating on the sidewalk in front of
the Supreme Court. The statute defined the Supreme Court grounds
literally by metes and bounds.
Question: Would I --
Mr. Waxman: There was no exclusion for
sidewalks.
Question: Excuse me. Would I have to do that in
order to save the statute?
Mr. Waxman: I don't think so.
Question: Why?
Mr. Waxman: Well, I think -- because I think as a
practical matter it is so clear that this does not cover what a
parent shows a child in the absence of true abuse, which is
separately actionable.
Question: Well, but it's not clear that it doesn't
cover the coffee shop owner who has a computer network, or a teacher,
or a high school librarian who under her supervision, or his
supervision allows this material to be accessed.
Mr. Waxman: If you think that it is necessary to
save the (d)(2) provision from an overbreadth challenge, you should
construe it, you must construe it in a manner that saves it as to
those applications.
Question: Could we talk about the defense clauses
for a moment?
Mr. Waxman: Sure.
Question: And does the Government accept that it is
a defense under the act if a parent or any owner or user of a
computer buys some of this software that is designed to screen out
indecent speech?
Mr. Waxman: Well, it -- would it be a defense to
the prosecution of the person who provided the content on the
Internet?
Question: Yes. I mean, I would be charged
presumably under the display provision as -- for putting on some kind
of indecent speech under your theory.
Now, is it a defense that there are these programs and
software to prevent the use of it?
Mr. Waxman: It --
Question: And how about the parent who lets the
child use the machine --
Mr. Waxman: Thank you, Justice O'Connor --
Question: -- that buys the software to screen it
out?
Mr. Waxman: The district court -- the district
court in this case did not find, and properly so, that the purported
-- that this purported solution that the appellees have offered,
these parental control software programs like SurfWatch, are an
effective alternative.
It didn't find that, and the reason is that with hundreds
of thousands of Web sites and tens of millions of pages that can be
discretely accessed, and with the number of sites increasing so
rapidly, and the ability to change the name of the site so easy,
there is simply no way that companies like SurfWatch or parents can
keep up with what can and can't be screened out, and even if they
could, with computers in libraries and community centers and schools,
it is not an effective alternative as matters currently stand. Now
--
Question: What about tagging, Mr. Waxman? Why
wouldn't it be adequate to meet the problem that is concerned about
for Congress to say, you'll have a complete defense so long as you
tag it?
Mr. Waxman: Well --
Question: And we'll establish a system. XXX means
that it contains the kind of material that would violate this act,
and therefore so long as you put XXX on it, you'll be safe.
Mr. Waxman: In the -- Justice Scalia, in the
absence of a regime in which there is a universal tag -- that is,
everybody knows and everybody uses, and --
Question: Congress could do that.
Mr. Waxman: Okay, and software that is available on
all machines that are sold as a default mode to screen under that tag
--
Question: But that would be pretty easy if they
were tagged.
Mr. Waxman: Congress -- that would essentially be
the mandated V-chip option.
Question: Right.
Mr. Waxman: And it would be better than what we
have now, but it would not be either more effective or less
restrictive than the Communications Decency Act.
Unlike television, we're not talking about a handful of
broadcasters here who have their own lawyers and their own
advertisers and other restraints on speech, and we're also not
talking -- we're talking about millions and millions and millions of
people who are putting speech on, and that's where the burden has to
be put, and on the other hand, we're also not talking about
television sets.
Question: But we are -- might be talking about
telephones, which was the point of my example with the children. Can
Congress suddenly decide that all private telephone conversations
will be monitored to see if there is indecent material going across
the telephone that children will knowingly pick up? That was my
concern.
Mr. Waxman: I think the answer is no.
Question: If the answer is no, then how does this
differ, because the Internet after all is, in addition to being a
little bit like a common, is very much like a telephone?
Mr. Waxman: The difference -- the regime you've
hypothesized is one in which all telephone calls between all people
in the United States would be monitored.
Question: No, what you'd have is an analogous
statute that applied to the telephone so that when the high school
students get on the phone and talk about their experiences, suddenly
that all becomes a crime, and it suddenly looks a little bit worse
from a First Amendment point of view --
Mr. Waxman: It does.
Question: -- if what you're talking about is the
telephone.
Mr. Waxman: It does.
Question: But the Internet is rather like the
telephone.
Mr. Waxman: I have to disagree with your last
statement. It looks a little bit -- it looks a lot different,
because on the telephone you are not displaying graphic images. You
are not talking about a medium which, once it's placed on a computer
by anybody, anywhere, is available to everybody everywhere. You're
talking about discrete communications --
Question: The question here is overbreadth.
Mr. Waxman: -- and it would be hard -- if I can
just finish, it would be much harder for Congress to demonstrate and
I don't think Congress believes that there's a compelling interest,
because of those differences, in doing so.
You know, in the face of the problem, in the face of this
serious problem, I need to focus just for a minute on what the
district court did.
The district court threw up its hands and struck down a
statute without attempting to narrow it, without attempting to make
it more specific, and most significantly, without finding that any
more narrowly tailored, constitutionally acceptable solution exists.
That is error of law of the first order.
Question: Mr. Waxman, the district court was
concerned about legislating. You know, it would be one thing if you
could just say, take out this sentence, or take out this section, but
just the kind of thing you describe with respect to the parent,
that's a lot. That kind of tinkering courts don't do.
Mr. Waxman: Justice Ginsburg, all I can say is that
-- I mean, I could rattle off the name of a dozen or two dozen cases
in which this Court in either the overbreadth context of the
vagueness context has done just that even without a severability
clause, and when there is a severability clause that includes the
language of applications as well as provisions, this Court has always
heeded that.
In fact, in Wyoming v. Oklahoma where the request was that,
okay, if it's invalid as to one particular company, just strike them
out, what this Court said was, severability clauses may easily be
written to provide that if application of a statute to some classes
is found unconstitutional, severance of those classes permits
application to the acceptable classes. Now --
Question: It was my impression from Califano v.
Westcott, which I think is the last time the Court dealt with that,
and it dealt with it up front, that the point was made that you can
lop of something, you can include or exclude, you can put a caret
mark, but nothing fancier than that.
Mr. Waxman: I -- our understanding of the cardinal
rule, even in the absence of a severability clause, is the rule
stated in Ferber, in which this Court said, when a Federal court
dealing with a Federal statute challenged as overbroad, it should, of
course, construe the statute to avoid constitutional problems if the
statute is subject to a limiting construction.
Even if the Federal statute is not subject to a narrowing
construction and is impermissibly overbroad, it nevertheless should
be stricken down -- should not be stricken down on its face. If it
is severable only the unconstitutional portion should be invalidated,
and here, where we have a severance clause that directs the Court to
sever as to unconstitutional applications, we think that rule should
apply, too.
May I reserve the balance of my time?
Question: Yes, Mr. Waxman.
Mr. Ennis, we'll hear from you.
Mr. Ennis: Mr. Chief Justice, and may it please the
Court:
There are four reasons why the preliminary injunction
should be affirmed. The CDA bans speech. It will not be effective.
There are less-restrictive alternatives that would be much more
effective. And the combination of an imprecise standard, coupled
with the threat of severe criminal sanctions, will chill much speech
that would not be indecent.
First, the District Court found as fact that the CDA
completely bans a vast amount of speech, all of which is
constitutionally protected for adults, from all of the unique means
of communication in cyberspace except the World Wide Web, and
effectively bans that speech from most of the Web as well. Virtually
all speech that is displayed on the Internet in a manner that would
be available to adults would also be available to minors.
Question: Excuse me. You say it banned it from
other applications but not from the Web. Is it your contention --
and there is much of this in the briefs -- that every -- every facet
of -- of cyberspace must be open to this kind of communication? I
mean what is wrong with saying, well, if you want to use cyberspace,
you have to use the Web?
Mr. Ennis: Well, Justice --
Question: You can't get into -- into some of the
other --
Mr. Ennis: Justice Scalia, let me try to answer
that question this way. There are 40 million speakers who use news
groups, listservs and chat rooms. It is not technologically possible
in those means of communication to screen for age. The Government's
expert conceded that.
There are about 100,000 Web sites in all. And most
speakers cannot afford the $1,000 to $10,000 it costs to have their
own Web site. Furthermore, there is a much --
Question: But, look. Let's take printed
communications. It is certainly lawful -- and we have upheld
provisions that require pornographic materials to be kept away from
minors and not to be sold in such a fashion that minors can obtain
them. This effectively excludes the publishers of pornographic
publications from vending their material on the streets in vending
machines, where minors can get access to them. Do we say it's
unconstitutional because they cannot use that manner of
communication? I don't think so. We say tough luck, you have to
sell it in stores.
Mr. Ennis: Your Honor, in Southeastern Promotions,
in Schad, in Bolger, in case after case, the Court has held, both
under intermediate scrutiny and under strict scrutiny -- particularly
under strict scrutiny -- that the possibility of a functionally
equivalent alternative does not save the Government. Here the
alternative is not functionally equivalent. Let me say why.
In news groups, chat rooms and listservs, you are engaging
in an interactive dialogue, a conversation, in which you speak and
the listeners reply and you can reply to what they say. They can be
outraged. They can be offended. They can have a good point to
make.
A Web site is static. What the Government is saying is
that the 40 million people who can speak in an interactive dialogue
in the other modes of communication on the Internet should post a
static message on their Web site. And maybe the people who are in
the news group would come to see it, maybe not. But the speaker
would not get any feedback. There would be no dialogue.
Second, there are only 100,000 Web sites. But most of
those do not have the screening capability that is required to screen
for age. Only those Web sites that have what is called CGI Script
capability can screen for age. We know from the record that all of
the 12 million subscribers to the Internet who gain access through
America Online, Compuserve, Prodigy, Microsoft, the major online
service providers, those service providers provide Web site to those
12 million subscribers, but not one of those Web sites can have the
capacity to screen for age.
So, in effect, there is a minuscule portion of the
population that -- for which it is technologically possible to screen
for age.
Question: Why are the others incapable of screening
for age?
Mr. Ennis: Because the -- the unique ways that
cyberspace works, you have to be able to have a computer software
program that has a form that can be filled in, you can interrogate
the listener who is trying to have access to your speech, and then
you can have other data processing to figure out whether the listener
can have access or not.
That kind of software does not work, as the Government's
expert conceded, on news groups, listservs, and chat rooms.
Question: Is that still true? How long ago were
all of these technological conclusions arrived at? There are some
aspects of cyberspace that didn't even exist when -- when the hearing
was held; is that right?
Mr. Ennis: Justice Scalia, it is still true. The
Government, in a highly unusual -- for the Government -- has cited in
its reply brief to the Washington Post and NewsWeek, to suggest that
it is possible to screen news groups and chat rooms on Web sites
today. The fact that the Government is forced to refer to
extra-record material shows there is no evidence in this record that
you can.
And in fact, the Government is wrong. It is not possible,
using a Web browser, which can gain access to a news group, to screen
for age, because news groups exist in cyberspace on perhaps 200,000
different news group servers. And it would be necessary for the
separate owners and operators of each of those servers to screen for
age. Otherwise, the speaker would not be protected.
Question: Well, it could be done, then. It could
be done. You're just saying it would defeat the purpose of some of
these things.
Mr. Ennis: Your Honor, Chief Justice Rehnquist, it
is technologically possible on some Web sites to screen for age. But
the -- the District Court also found as a fact that even on that
small subset of Web sites, the cost of screening would be
economically prohibitive for all speakers.
Question: What does it mean when they say
"prohibitively expensive" or "economically
prohibitive"?
Mr. Ennis: Let me try to --
Question: Those are value-laden adverbs.
Mr. Ennis: Well, let -- let me try to explain,
Chief Justice. The principal way to screen for age is through use of
a credit card. If you are not a commercial speaker, most credit card
companies will not verify the credit card at all, period, for any
cost.
Question: So if you're a commercial speaker, they
will?
Mr. Ennis: They will verify if you're a commercial
speaker.
Question: And what -- what do you mean by a
"commercial speaker"?
Mr. Ennis: A speaker who is charging for access to
his or her speech. And that is a very small subset of all Internet
speakers. None of the enormous range of plaintiffs in this case is a
commercial speaker.
Question: Well, the credit card people will verify
for the commercial speaker because he can pay for it or because
--
Mr. Ennis: That's right.
Question: In other words, they would verify for
anyone who could pay for it?
Mr. Ennis: Well, there are two questions -- two
points. Most credit card companies simply will not verify for any
price for a noncommercial transaction. They are not set up to do
that. A few credit card companies will, but the record evidence
showed they charge a dollar per verification for a noncommercial
verification.
Now, if you are a speaker who wants to make your speech
available to 100,000 listeners, that means you, the speaker, would
have to pay $100,000 for the privilege of speaking.
Question: Well, what about the first radio people,
you know, before the Federal Radio Act in 1927? I'm sure that
imposed a lot of operating requirements on radio stations. And
before that, they could just say, well, we like it the way it is. The
Government shouldn't have to tell us we've got to have all this
equipment. But, nonetheless, the Government did tell them, and
that's certainly been upheld.
Mr. Ennis: Chief Justice Rehnquist, there is an
enormous difference between some burden, some cost -- which this
Court has upheld in other contexts -- and a burden or cost that is
economically prohibitive. Let me continue to answer your question by
saying that, for example, there is evidence in this record that the
Carnegie Library, which has been used as an example, in order to
classify which of its speech is indecent and which is decent within
the meaning of this law, that would require a human judgment and it
would cost about $3 million to do that.
Question: And that's prohibitively expensive for
the Carnegie Library?
Mr. Ennis: Yes, it is, Your Honor. There is no
dispute on that in the record.
Question: Mr. Ennis --
Question: Well, I suppose it depends on how -- I
mean on whether -- what is prohibitively certainly depends to some
extent upon the goal to be achieved. I mean we do stop individual
citizens from running radio stations, because of all the regulations,
say it's prohibitively expensive, you can't run your own radio
station. And we say, well, you know, that's tough luck. The goal to
be achieved is everybody can't talk at once, so we have to limit the
numbers and we have to have all of these technological requirements.
It's going to cost you $3 million, and we say that's too bad.
Now, how valuable, how important is the goal to be achieved
here? Is it equivalently important? Isn't that very much a policy
judgment that Congress is able to arrive at?
Mr. Ennis: Let me answer that, Justice Scalia,
first, by saying and emphasizing that we did not challenge this law
insofar as it prohibits obscene speech, child pornography,
solicitation of minors, harassment of minors. That kind of speech
was not challenged and is not enjoined by the injunction below. We
are only talking about a much different subset of speech that is
called patently offensive or indecent speech.
I want to emphasize that that standard is broader than any
standard this Court has ever upheld even with respect to sale or
display directly to a minor, and is vastly broader than the standards
applied in the 48 States which use a "harmful to minors"
standard, which requires that the speech be not only patently
offensive for minors, but also appeal to a prurient interest for
minors and lack serious value for minors.
Question: Mr. Ennis, there is one thing I don't
want to lose before you go away from the prohibitively expensive
point. Would you comment on Mr. Waxman's argument that those who
transmit and display could do so subject to a requirement that access
be conditioned on an adult identification number? Is that a response
to the prohibitively expensive argument?
Mr. Ennis: Justice Souter, Mr. Waxman said there
was unrebutted evidence below. If you'll look at the court's
opinion, the court -- what the court said was the government
presented virtually no evidence about these third-party verification
bureaus. But what the evidence does show is those third-party
systems do not work at all for listservs, news groups, chat rooms,
all of the modes of communication in cyberspace except the World Wide
Web.
So those third-party bureaus effectively shut down the 40
million speakers who use those other means of communication. They
cannot be used in those other means of communication.
Question: Would it be effective, in effect, in all
Web transmissions and display?
Mr. Ennis: Not in all Web transmissions. It would
only be effective in Web -- in a certain number of Web
transmissions. But I -- I want to emphasize that one of the real
democratizing and speech-enhancing attributes of the Internet is that
average citizens can speak to the world for free. In order to own
your own Web site, the Government conceded, it would cost a thousand
dollars to $10,000 to set up your own Web site, and then maintenance
costs.
So we're -- we're reducing the number of speakers
dramatically.
Question: Can you at some point -- Mr. Ennis, could
you at some point, at your choice, address the question of
severability? In particular, I'm thinking is it possible to narrow
the statute perhaps far more extremely than the Government would
like, but to commercial pornographers? Is there a way of reading it
so it only applies to people who make significant amounts of money
out of selling pornography across the Internet? Is there some such
construction?
Mr. Ennis: Justice Breyer, the District Court did
focus on that question. And it found that no such limiting
construction was possible for many reasons. First, the Act, by its
terms, applies to both commercial and noncommercial entities. The
legislative history makes clear that Government intended to regulate
both commercial and noncommercial entities.
It applies, by its terms, to the speech of libraries and
educational institutions. None of whom, by the way, are regarded as
pornographers in the common understanding of that term.
It -- it is simply not possible to construe the statute
that way. And if you did, it would be a nonsensical construction.
Because before this Act was passed, the commercial pornographers
already charged with credit card for access to their speech. They
don't make that speech available for free.
Question: How about narrowing the definition of
what's patently offensive?
Mr. Ennis: Well, Your Honor, again, you would have
to do violence to the text of the Act and to the legislative
history. Because Congress squarely --
Question: The Act just isn't specific. It says
"indecent speech." I don't know that it's all that clear
from the --
Mr. Ennis: On the text of the Act, it's not,
Justice O'Connor. But the conference report, at page 188 and 189,
makes very clear that Congress expressly rejected the more narrow
"harmful to minors" standard, which would require that the
speech be not only patently offensive, but also appeal to prurience
and lack serious value.
Second, the conference report makes clear that Congress
intended to apply the Act under -- using the FCC broadcast standard
for indecency that was at issue in the Pacifica case. As the FCC
said in Pacifica and as this Court noted, under that standard, speech
can be found indecent even if it is not prurient and even if it has
serious value.
Question: Well, we construed the term
"patently offensive" in our Denver Area opinions last
term.
Mr. Ennis: Chief Justice Rehnquist, I think that,
with respect to the vagueness argument, the Denver Area case is
dramatically different from this case. First, that case did not
involve any criminal sanction whatsoever and did not even involve any
direct prohibition on speakers. It simply -- the only provision that
was upheld under a vagueness challenge simply permitted cable
operators, who have their own first amendment rights, permitted them
to exercise their own editorial judgment. And it even required that
--
Question: Well, you might say that the -- what the
Court came up with in Denver maybe was too lenient for a criminal
statute, but certainly the term was construed there.
Mr. Ennis: It was, Chief Justice Rehnquist, but it
--
Question: It was construed in a quite limited way,
was it not?
Mr. Ennis: Let me answer it this way.
Question: Was it construed, do you think, in a
limited way?
Mr. Ennis: I don't think that the term was actually
construed in any particularly limited way in Denver Area. I think
the Court didn't need to. But --
Question: I thought the Court adhered to Pacifica
in -- in defining indecency.
Mr. Ennis: I think the Court did refer to Pacifica,
Justice Ginsburg. Pacifica also, itself, stressed that that case did
not involve any criminal sanctions at all. An administrative slap on
the wrist was what was at issue. And the Court, three times, said --
it was emphasizing that the Court was not upholding a prohibition of
even broadcast indecency if it was accompanied by a criminal
prohibition. That's what this case does.
Question: Mr. Ennis, you did say in -- in your
opening that you were going to tell us about a less restrictive, more
effective means. And I was intrigued by that, and I hope, before
your time is up, you will be able to do that.
Mr. Ennis: Yes. I'd be very happy to turn to
that.
The court below found as a fact, at pages 32a to 42a of the
appendix to the jurisdictional statement, that there is a broad range
of technologies and software programs that enable parents either
completely to block all access to the Internet, if the parents are
really concerned or, more selectively, to screen and filter access to
the Internet if they want to allow their children to have access to
certain parts of the Internet but not to others.
Question: Those cost money, though, don't they?
Mr. Ennis: Chief Justice Rehnquist, the basic ones
don't cost a thing. Everyone -- all of the 12 million Americans who
subscribe to the Internet through the major online service providers
get, at no additional cost, the parental control options that all of
the major online service providers offer. Using those options, by
clicking one box, you can completely prevent all access to the
Internet, including to foreign speech on the Internet, which this law
will not deter.
Question: So, there will be no cost involved in any
part of this alternative to the parents?
Mr. Ennis: Not if the listener uses those software
programs. No cost at all. There are other software programs, some
of which are available for free and some of which cost perhaps $30,
which parents can use to filter content in different ways. The
--
Question: Well, Mr. Ennis, the Government says that
these programs aren't effective. And that's pretty much what the
District Court concluded, too.
Mr. Ennis: Justice O'Connor, with respect, I don't
think that's a fair characterization. If you look at page 42a of the
joint appendix, the District Court summarized by saying that these
were effective, and there was reason to believe they would soon be
more widely available.
Even the Government, if you look at pages 13 and 9 of the
Government's reply brief, the Government concedes, at page 13, that
parents today, using these software controls, can effectively prevent
their children from having access to any indecent speech, including
indecent speech posted abroad. The Government's response to that,
however, is to say, well, yes, if parents want to be really safe and
secure, they can completely protect their children; but that might
deprive the children of access to some parts of the Internet they
should have access to.
Question: Mr. Ennis --
Mr. Ennis: That's not a first amendment problem.
That's a parental judgment issue.
Question: Mr. Ennis, so much of your argument is
based upon what is currently available. You know, I throw away my
computer every 5 years. I think most people do. This is an area
where change is enormously rapid. Is it possible that this statute
is unconstitutional today, or was unconstitutional 2 years ago when
it was examined on the basis of a record done about 2 years ago, but
will be constitutional next week?
Mr. Ennis: Not --
Question: Or next year or in two years?
Mr. Ennis: Not as it is presently worded, Justice
Scalia. Because the way it's worded now, it makes it a crime for a
speaker to make available on the Internet speech that would be -- to
display speech that would be available to a minor. And even if
everybody agreed on a tagging system and even if everyone's computer
had a browser that was set to read the tag, the speaker would have no
assurance that those browsers were set in that way.
Question: But it depends on the -- on the security
of the safe harbor. And how secure the safe harbor is depends so
much upon technology, I frankly think that this case depends upon who
has the burden of proof. I have no way of understanding --
Mr. Ennis: Well, I'm glad you asked that question,
Justice Scalia. Because --
Question: -- what is going to be what. Now, who
has it? This is a distinctive kind of first amendment statute. I
don't know that we've ever adjudicated one like this, which -- which
only prohibits speech which is prohibitable. There's no doubt that
you can prevent people from saying these things to minors. And
that's all that is prohibited. The argument is not, as it was in
Pacifica, you've not only prohibited communications to minors, you've
prohibited communications to adults during those viewing hours.
That's not the case here.
The only thing prohibited is clearly constitutionally
prohibitable. And your argument is, ah, but in prohibiting what is
prohibitable, you've done it in such a fashion that you -- you
needlessly, unnecessarily, effectively prohibit non-prohibitable
speech -- that is, speech to adults. That's -- that's a new case for
us.
And I wonder whether it isn't true that you have the burden
of proof. So long as the statute only says we're prohibiting these
communications to minors, it's your burden to show that, in doing so,
you're going to affect adults.
Mr. Ennis: Justice Scalia, that was an issue
below. The Government conceded the Government had the burden below.
That was an issue in the Shea case. In Shea, at 930 F.Supp.923, the
Government concedes that it bears the burden of proving that the
display provision --
Question: Well, we don't -- we don't decide cases
here on the basis of concessions, Mr. Ennis. I mean, that's an
independent judgment that we make.
Mr. Ennis: That's correct, Chief Justice
Rehnquist. I didn't mean to suggest you'd be bound by the
Government's concession. I simply want to suggest that the
Government has made that concession for very good
reason. The Government is attempting to regulate speech that is
constitutionally protected for adults and some of which is
constitutionally protected for older minors. It bears the burden of
justifying that regulation.
The Government conceded below and in the Shea case that the
display provision, standing alone, is an unconstitutional ban on
speech. And it said that provision is justified because of its
argument that speakers could use the affirmative defenses to
communicate indecent messages to adults, while shielding those same
messages from minors. But the District Court below found as fact
that that is not so. It is not technologically possible for the vast
majority of Internet speakers to use those affirmative defenses.
Therefore, this law is a ban on indecent speech in cyberspace.
Returning to the effectiveness point that Justice Ginsburg
asked, it's critical to note here that the court below found as fact
that about 40 percent or more of all speech on the Internet is posted
abroad in foreign countries. And that at least 30 percent of all
indecent speech in cyberspace is posted abroad in foreign countries.
The Government's own expert acknowledged below that the CDA would
have no impact on that foreign indecent speech, and that parents
would have to rely on parental control technologies to shield their
children from that foreign speech.
Question: But if 70 percent is shielded and 30
percent isn't, what kind of an argument is that against the
constitutionality of the statute?
Mr. Ennis: First, Chief Justice Rehnquist, I think
it's more like 50/50 today.
Question: Well, whatever the situation is.
Mr. Ennis: Well, here's why. It's -- suppose we
were talking about an enormous adult bookstore. Everything in the
store is indecent. And the Government says, children can come into
this enormous adult bookstore and browse unsupervised, but we're
going to remove half the books, half the videos. That would not,
directly and materially, advance the Government's interest of
protecting those children from access to indecent materials.
Question: Well, it would certainly -- it would
certainly go halfway.
(Laughter.)
Mr. Ennis: Well, Your Honor --
Question: What about 500 bookstores, 500 obscene
bookstores, and the Government eliminates 250 of them; would that be
no progress at all?
Mr. Ennis: If they're obscene, they can eliminate
them all, Justice Scalia. We don't challenge that.
Question: Never mind obscene -- pornographic --
Mr. Ennis: Pornographic --
Question: -- succeeds in excluding children from
250 out of 500, that's no use?
Mr. Ennis: Justice Scalia, the way the Internet
works, a child using a search engine can sit down at their typewriter
and they type in, if they want to go somewhere -- and it's important
to stress that in cyberspace, listeners must affirmatively choose
where they want to go. The Government's expert testified that the
odds are slim that a child would come across a sexually explicit site
by accident. But if a child wants to go to an indecent site, the
child sits down and types in something like "triple-X
sex."
If that home computer is not using parental control
software, that search engine will go out there in the world and list
the triple-X sites that are available. All the triple-X sites that
are foreign will be listed there. The kid then clicks the mouse, and
they have access to all the indecent speech they could possibly want
to see.
The Government's interest here was not limiting children to
50 four-letter words a day instead of 100. The Government's interest
was protecting children from access to indecent speech at all.
Question: Does this statute --
Mr. Ennis: And this Act would be completely
ineffective in achieving that goal.
Question: Does this statute, with respect to
foreign speech, prohibit United States users to post information that
goes abroad?
Mr. Ennis: It doesn't specifically address that
question at all, Justice Kennedy. Which is a big problem. Because
there was evidence in the record below that if this law were upheld,
so that it completely suppressed all indecent speech by all domestic
speakers, it would be very simple for commercial purveyors of
sexually explicit speech to move all of their operations abroad.
And they don't even have to do that. Using a dedicated
computer here, they can post the messages here. It goes to a foreign
computer, an anonymous re-mailer, and that speech then comes back to
this country. It seems, to all intents and purposes, it comes from a
foreign country.
Question: Why, just out of curiosity, is it not
applicable to messages that emanate from abroad?
Mr. Ennis: It's not applicable, Your Honor,
because, first of all, as a practical matter, the Government would
not have personal jurisdiction over foreign speakers, and could not
realistically expect --
Question: Well, I mean if they came here. Suppose
they came here, they have assets here, et cetera.
Mr. Ennis: Well, there may be one or two or 10 or
20 applications --
Question: Is it totally practically or is there
some legal reason?
Mr. Ennis: Well, there are also legal reasons, Your
Honor. This Court has indicated -- and Justice Scalia's opinion for
the -- that there are two canons of statutory construction that are
relevant here. The first is -- the first canon is that you do not
presume that a domestic law is intended to have extraterritorial
effect.
Second, even if it is, you do not presume that it does
apply extraterritorially if that would create a conflict with the
laws of foreign countries. And the Government's own expert testified
in this case that there are many foreign countries in which the law
that's considered criminally indecent here would be perfectly
lawful. So there would be that --
Question: So Congress could cure this
constitutional defect as you see it simply by making it clear that
the law applied everywhere?
Mr. Ennis: No, it wouldn't cure the second problem,
Your Honor, because that would then be a conflict with the laws of
those many foreign countries --
Question: Well, but supposing the Congress said we
don't care if there's a conflict?
Mr. Ennis: Well, Congress could violate that
standard of statutory interpretation.
Question: Well, when Congress expressly provides
something, it's not violating a standard of statutory
interpretation.
Mr. Ennis: Your Honor, I -- I agree that Congress
could have drafted a much different statute than the one it drafted.
It could have drafted a statute that did not apply at all to
noncommercial speakers. It did not. It could have drafted a statute
that only applied to visual images, not just four-letter words. It
did not. It could have drafted a statute that was, in many respects,
narrower than the statute at issue here. It could have limited it to
prurient speech that lacked serious value.
Question: But I'm talking about broader statute. A
broader statute, in that respect, saying that it was all over the
world that it applied, would cure this one constitutional defect that
you're talking about.
Mr. Ennis: It would take care of that defect. But
that's not the statute we have before us.
Question: Well, I'm not sure. While I certainly
agree that normally statutes are not interpreted to be
extraterritorial, I don't know that we've ever had a case in which it
has been asserted that the difference between the constitutionality
and unconstitutionality of the statute is whether it is
extraterritorial. I think if the only way to make it constitutional
is to interpret it as being extraterritorial, I'm not sure that we
wouldn't say, well --
Mr. Ennis: Justice Scalia, this is not that
case.
Question: I mean if that's your only argument, I'm
saying --
Mr. Ennis: It's not -- it's not the only argument.
It's not the only argument at all.
Question: I think it's a pretty weak argument.
Mr. Ennis: But it's not the only argument at all,
Justice Scalia. Our argument --
Question: I thought you were making the point that
it would be ineffective because --
Mr. Ennis: That's correct.
Question: -- but not unconstitutional.
Mr. Ennis: It would be ineffective for that
reason.
Question: But --
Mr. Ennis: But even if -- excuse me, Justice --
Question: -- you did bring up an interesting
point. Are there other nations that have regulated indecent speech
in cyberspace?
Mr. Ennis: Not that I know of, Justice Ginsburg.
There may be. But there are other nations that have attempted to
regulate the content of speech in cyberspace. China attempts to
regulate speech that's critical of the Chinese Government. It's not
inconceivable that Iran might attempt to regulate speech that's
critical of religious --
Question: And might want to control the world with
respect to that, to rule the world with respect to the kind of speech
that that nation doesn't like?
Mr. Ennis: Well, Justice Ginsburg, I think -- in
fact, the Chamber -- U.S. Chamber of Commerce filed an amicus brief
in this case, criticizing this law for precisely that reason -- that
this law sends precisely the wrong signal. That it is appropriate
for governments, in their own interest, to ban whatever speech they
want to ban from a global medium, which will cripple the
competitiveness of U.S. business in competing in this increasingly
important business --
Question: I suppose we better let obscenity in,
too, then?
Mr. Ennis: No --
Question: That's just the point.
Question: If that's a global principle --
Mr. Ennis: I don't think obscenity --
Question: Right.
Question: -- if we shouldn't ban stuff that we
don't like, it would apply to obscenity.
Mr. Ennis: I don't think obscenity is considered
appropriate or lawful speech in any country that I'm aware of.
Question: Well, but I do think it's a weak argument
to say that the United States, if it has a strong public policy,
cannot lead the way, and maybe other nations would follow. I think
your argument is -- is not your strongest argument.
Mr. Ennis: No, that's not our strongest argument.
Our strongest argument, Justice Kennedy, is that this law will have
the unconstitutional effect of banning indecent speech from adults in
all of cyberspace. For 40 years, this Court has repeatedly and
unanimously ruled that Government cannot constitutionally reduce the
adult population to reading and viewing only what is appropriate for
children. That is what this law does.
In Sable, this Court, in the telephone context, struck down
a law that had precisely that effect. It banned telephone indecent
speech. And that had the unlawful effect of banning that speech from
adults, as well as from minors. This Court unanimously struck that
down.
And to answer Justice Breyer's question about telephone, I
do not believe it is a crime in this country today for private
persons, including private teenagers, to communicate indecent speech
by telephone. It would be a crime to communicate exactly the same
speech under the CDA.
So, returning, the principal arguments we have is that this
is a ban on adult speech. It is not going to be effective, for the
reasons I've expressed, about all of the foreign indecent speech. And
even if it were effective, there are less-restrictive alternatives
that enable parents, completely, to decide what they think is
appropriate for their 17-year-old, as opposed to their
16-year-old.
Under this law, there is no parental choice. The
Government decides what's appropriate for all 17-year-olds. A parent
who disagrees with the Government cannot, through the Internet, gain
access to speech, safer sex information, very similar to the
information at issue in the Bolger case. That parent would have no
opportunity, using the Internet, to make that speech available to the
parent's 17-year-old child.
And even worse than the hypothetical you asked, Justice
Souter, about the "knowingly permit" provision, under the
plain language of this statute, it would be a crime, 2 years in jail,
for a parent to send an indecent E-mail message to the parent's
17-year-old college freshman son or daughter. That's a direct
transmission, not just a permitting the use. The parent would --
would be committing a criminal act to do that.
Question: Mr. Ennis, do you think it would be
constitutional to require all transmitters to tag their material?
Mr. Ennis: Well, I think it would raise significant
compelled speech questions, Justice Stevens. Whether it be
constitutional or not, I don't know. But even if that were required,
that would not --
Question: If it's not, then that's not a
less-restrictive alternative?
Mr. Ennis: Well, it wouldn't be a less-restrictive
alternative under the way this law is worded. Because this law makes
it a crime to make speech available.
Question: No, I'm assuming you just start from
scratch, with a law that requires that as the principal means of
screening.
Mr. Ennis: I think -- I think what would be
constitutional is what this Court found would be constitutional in
Denver Area. And that is encouraging, facilitating parents to use
the parental control options that are readily available to them right
now. If parents use the software tools they have, they can block or
screen all indecent speech.
Question: Nothing with any teeth in it?
Mr. Ennis: Well, you could --
Question: They're not readily available without
labelling. That's the problem.
Mr. Ennis: No, no --
Question: Without tagging.
Mr. Ennis: That's wrong, Justice Scalia. Right now
-- I'm a parent. I subscribe to one of the major online service
providers. I clicked the kid's only box. And that means my child
does not have any access to the Internet unless I'm there to
supervise.
Question: Does the Government have any interest in
protecting children who do not have parents available in the home or
do not have adequate parental supervision?
Mr. Ennis: Well, Justice Kennedy, we do not dispute
that the Government has a legitimate interest in protecting some
children from some forms of speech that could be found indecent. But
the problem with this law is, in order to achieve that objective, it
completely bans all of that speech from adults and also bans it from
the substantial portion of minors who themselves have first amendment
rights, under Bolger and Erznoznik, to have access to the banned
speech.
Question: Mr. Ennis, if I had to be present
whenever my 16-year-old is on the Internet, I would know less about
this case than I know today.
(Laughter.)
Question: That is simply not a realistic
possibility -- to tell every parent, if you're worried about it, just
don't let your teenager use the Internet unless you're there.
Mr. Ennis: That's the point, Justice Scalia.
Question: That's not reasonable.
Mr. Ennis: That's the point. The parental control
devices that are available on the Internet are more effective than
any control devices available for broadcast TV, cable or telephone,
because the parents don't have to be there.
Question: Thank you, Mr. Ennis.
Mr. Ennis: Thank you, Mr. Chief Justice.
Question: Mr. Waxman, you have a minute
remaining.
Mr. Waxman: I have five points. I will try and
make them very quickly.
The burden of proof -- this is an act of Congress that's
being challenged on its face -- the burden of proof, under long
precedent, is with the party challenging it. That's verified by
Federal Rule of Evidence 301, and this Court's precedence in Walters
and Hicks v. St. Mary's Honor Center.
With respect to the classification burden on the Carnegie
Library, this Court's precedence in the obscenity context have
indicated that there is no obligation for the Carnegie Library to
read every one of its books in order to decide it has to be
classified. In order to prove a criminal case, we have to prove that
the defendant actually knew the content. So the Carnegie Library
only has to do what it has to do under its local ordinance, which is
take the indecent stuff and put it in a different room.
This is the electronic equivalent of that.
Question: But that's' not true under the display --
that's not true under the display provision here, is it?
Mr. Waxman: It is true under the display
provision. That is, if they find that they have certain --
Question: I thought that was not a knowing
offense?
Mr. Waxman: Excuse me?
Question: The display provision is not a knowing
offense.
Mr. Waxman: Well, you have to knowingly display
it. And it, in the context -- if I may just finish this point -- it,
in the context of this Court's decisions in the patently offensive
prong of the obscenity context, has said that whatever the standard
of proof, whatever the scienter is, you may not, as a constitutional
matter, convict somebody unless you prove not that they knew that it
was pornographic, but that --
CHIEF JUSTICE REHNQUIST: I think you've -- I think you've
-- Mr. Waxman, I think you've answered the question.
Mr. Waxman: Thank you.
CHIEF JUSTICE REHNQUIST: The case is submitted.
(Whereupon, at 11:18 a.m., the case in the above-entitled matter was
submitted.)
