Christopher Hansen representing the ACLU
Bruce Ennis representing ALA/CIEC
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- - -
AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M
UNION, et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: May 10, 1996
JANET RENO, in her official : 9:32 o'clock a.m.
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION NO. 96-1458
et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: May 10, 1996
DEPARTMENT OF JUSTICE, et al : 9:32 o'clock a.m.
Defendants :
. . . . . . . . . . . . . . . .
HEARING BEFORE:
THE HONORABLE DOLORES K. SLOVITER,
CHIEF JUDGE, UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
THE HONORABLE RONALD L. BUCKWALTER
THE HONORABLE STEWART DALZELL
UNITED STATES DISTRICT JUDGES
- - -
APPEARANCES:
For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE
MARJORIE HEINS, ESQUIRE
ANN BEESON, ESQUIRE
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
-and-
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
123 S. 9th Street, Suite 701
Philadelphia, PA 19107
2
APPEARANCES: (Continued)
For the ALA BRUCE J. ENNIS, JR., ESQUIRE
Plaintiffs: ANN M. KAPPLER, ESQUIRE
JOHN B. MORRIS, JR., ESQUIRE
Jenner and Block
601 13th Street, N.W.
Washington, DC 20005
-and-
MICHAEL TRAYNOR, ESQUIRE
Cooley Goddard Castro Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT, ESQUIRE
MARY KUSTEL, ESQUIRE
CRAIG M. BLACKWELL, ESQUIRE
Department of Justice
Federal Programs Branch
901 E. Street, N.W., Room 912
Washington, DC 20530
-and-
MARK KMETZ, ESQUIRE
U.S. Attorney's Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
- - -
Also Present: MICHAEL KUNZ
Clerk of the Court for the
Eastern District of Pennsylvania
- - -
Deputy Clerks: Thomas Clewley
Matthew J. Higgins
Audio Operator: Andrea L. Mack
Transcribed by: Geraldine C. Laws
Grace Williams
Tracey Williams
Laws Transcription Service
(Proceedings recorded by electronic sound recording;
transcript provided by computer-aided transcription service.)
3
1 (Whereupon the following occurred in open court at
2 9:32 o'clock p.m.:)
3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner
4 of persons having any matter to present before the Honorable
5 Delores K. Sloviter, Chief Judge of the United States Court
6 of Appeals for the Third Circuit, the Honorable Ronald L.
7 Buckwalter and the Honorable Stewart Dalzell, Judges in the
8 United States District Court for the Eastern District of
9 Pennsylvania may at present appear and they shall be heard.
10 God save the United States and this Honorable Court.
11 Court is now in session, please be seated.
12 JUDGE SLOVITER: Good morning.
13 I think you should know the Court's view as to the
14 argument today. We deem this as for maybe I speak from the
15 vantage point of an Appellate Judge, but we deem this for our
16 benefit rather than for yours in that you have set forth in
17 the comprehensive briefs and your proposed findings of fact
18 and conclusions of law your positions.
19 While, of course, you will proceed, we will
20 interrupt you with -- I assume we will interrupt you with
21 numerous questions, at least I know I have numerous questions
22 after reading these. And therefore, although we have given
23 you time limits, those are your time limits, the Court has no
24 time limits and therefore we, to the extent that we want
25 clarification, we will go over those time limits, it doesn't
4
1 reflect on either or any of the parties if we ask more
2 questions of one party than of another or if our extensions
3 come unequally for that purpose.
4 We believe that you shouldn't make plans to go by
5 plane before lunch anywhere since it is possible that --
6 likely that we will go beyond the lunch period, give
7 everybody a break and then resume. We tell you that at the
8 outset so that you can know.
9 Anything else preliminarily? Anything else
10 preliminarily?
11 Okay, we will hear from counsel.
12 MR. HANSEN: Good morning, your Honors. My name is
13 Christopher Hansen. I'm one of the lawyers representing the
14 ACLU plaintiffs in this case.
15 I'd like to begin by addressing two subjects that
16 are not in dispute in this case that are extremely important
17 to the plaintiff's analysis of this case.
18 The first is that this is a criminal statute, it's
19 not a regulatory statute or an FCC regulation, it's a
20 criminal statute. It carries the penalties of fines,
21 imprisonment and a criminal record.
22 Second, it is a criminal statute aimed at speech
23 which all parties agree is constitutional and protected
24 speech, at least for adults.
25 The rules of vagueness and overbreadth, which are
5
1 the primary subjects I'm going to be addressing this morning
2 are held to their strictest when either of these two criteria
3 apply, either when they say the statute is a criminal statute
4 or when it implicates First Amendment barriers, here we have
5 both.
6 And thus the rules of vagueness and overbreadth in
7 this context must be applied with particular strictness.
8 JUDGE SLOVITER: On the other hand, this is a
9 preliminary injunction request and the Supreme Court has made
10 very clear that in preliminary injunctions the Court is not
11 to reach out and decide the issues that are not absolutely
12 essential at that time. Is that not correct?
13 MR. HANSEN: Oh, that's certainly correct. We think,
14 however, it is going to be essential for you to not reach out
15 but have to decide the issues of vagueness and overbreadth as
16 they apply to this particular statute.
17 There are a couple of other features about the fact
18 that this is a criminal statute that I would like to
19 highlight, in addition to the fact that it carries the
20 potential of imprisonment.
21 The first is that it does require immediate
22 compliance upon penalty of imprisonment. Now, I cross-
23 examined Mr. Olsen on my hypothetical, allow my clients to
24 comply with this statute by 6:15 in the afternoon and it
25 sounded extreme at the time because it is an incredibly tight
6
1 schedule within which to comply with the statute.
2 But the statute doesn't contain a phasing period, it
3 doesn't contain a period of grace during which people can
4 speak without the necessity of going to jail. Indeed if my
5 clients, if this Court were to uphold this statute at 6:00
6 o'clock this afternoon, my clients would be in jeopardy for
7 speech that they engaged in at 6:15, in jeopardy of
8 imprisonment.
9 It is also a very peculiar criminal statute in one
10 other respect. The statute says that the defenses change as
11 technology changes. Now, Mr. Ennis will primarily be
12 addressing the offenses, but I'd like to highlight this one
13 part of the defenses.
14 It is surely an odd criminal statute that behavior I
15 engage in today is legal but tomorrow will be illegal because
16 technology has changed between today and tomorrow. It
17 suggests that I have to keep track of all current technology,
18 make sure I'm on top of the latest technology to make sure
19 that I have defended myself against this statute.
20 And I think that feature highlights what is an
21 important part --
22 JUDGE SLOVITER: What provision specifically are you
23 referring to in the statute when you say the statute says
24 that?
25 MR. HANSEN: Subsection E says it is a defense to
7
1 engage in reasonable and effective and so on measures in
2 order to preclude minors from having access to this, to the
3 material. It says reasonable and effective measures under
4 current technology. And indeed both amici and the Government
5 make much of the notion that technology is rapidly changing
6 in this area and what is not possible today may become
7 possible in the future. Indeed I expect Mr. Ennis will spend
8 considerable time talking about how the Government's
9 essentially conceding that the defenses are not really much
10 available today, instead the Government is relying on its
11 hope the defenses will be available in the future.
12 But what this highlights, to me anyway, is the
13 nature of the medium that we're talking about because even if
14 we were talking about a criminal statute applicable to
15 constitutionally protected speech in the context of broadcast
16 or in other contexts, if we're -- if we're worrying about CBS
17 having to face those kinds of problems, CBS is -- and NBC,
18 there are a limited number of speakers in the context of
19 television and they have batteries of lawyers and they have
20 batteries of people who review programs before they go on the
21 air.
22 In this case we're talking about the most democratic
23 means of speech yet devised. It is an area of a medium where
24 all of us can be both speakers and listeners, where entry
25 into the marketplace of ideas is simple, is relatively
8
1 inexpensive and it makes all of us as powerful as CBS news.
2 My Webpage can be seen by just as many people as CBS
3 News' Webpage. In that context it is difficult -- we have to
4 remember we are then calling upon every single American to be
5 able to define the exact parameters of vague--of the statute
6 here, the exact parameters of indecency, the exact parameters
7 of patent defensiveness.
8 Every single American may, as Mr. Olsen suggested,
9 have to hire their own lawyer to determine what the precise
10 contours of those phrases are.
11 It is because of the evolving and democratic nature
12 of this medium that the use of the criminal statute in this
13 context is a particularly onerous method of dealing with the
14 problem here.
15 JUDGE SLOVITER: What is the problem?
16 MR. HANSEN: Well, Congress perceives the problem to
17 be that minors are obtaining access to material that are
18 inappropriate for minors to be obtaining access to. In our
19 view, Congress has not made out evidence that that problem
20 does exist. In the examples, for example, and Mr. Schmidt
21 provided us with a lot of examples of the kind of speech that
22 the Government asserts is at issue here. Much of that
23 speech, in our view, would be encompassed within already
24 existing criminal prohibitions of either obscenity or child
25 pornography. Indeed --
9
1 JUDGE DALZELL: Which I take it everybody agrees is
2 entitled to absolutely no protection, obscenity and child
3 pornography, that's established, correct?
4 MR. HANSEN: I think the Supreme Court has been
5 crystal clear that that is established, that's correct.
6 JUDGE DALZELL: Okay.
7 MR. HANSEN: And indeed Senator Exon, the sponsor of
8 this statute, waved around, and indeed I think successfully
9 waved around on the floor of the Senate what he called the
10 Blue Book. And the Blue Book consisted of pictures even more
11 extreme than those you saw in the Coppolino book during the
12 testimony stage, pictures that under any -- I think under
13 most people's definition would be considered obscene.
14 But we're not talking about obscene speech here.
15 None of the plaintiffs is challenging prohibitions against
16 obscene speech or against child pornography, we're talking
17 about something that is outside the definition of what
18 obscene speech is.
19 And the -- the issue of whether the two phrases,
20 indecency and patent offensiveness, are either vague or
21 overbroad. It turns out after a careful reading of the
22 Government's brief and the amici in support of the Government
23 to be a fascinating case.
24 JUDGE SLOVITER: Do you understand the two phrases
25 to be different or the same?
10
1 MR. HANSEN: I understand the Government to be
2 arguing that the two phrases are the same. I don't think
3 that argument necessarily makes sense. I mean we -- the
4 normal rule of statutory construction is that when the
5 Congress uses two different clauses or words, it means to
6 convey two different concepts.
7 JUDGE DALZELL: Yeah, but when the conference
8 report specifically references Pacifica and Sable as the
9 source of meaning for those, doesn't the Government have the
10 better of the argument? Well, I'm not deciding the
11 consequences of this but as a matter of statutory
12 construction that the terms "indecent" and "patently
13 offensive" are interchangeable?
14 MR. HANSEN: Well, there's no question that the FCC
15 has defined -- has defined indecency using some of the patent
16 offensiveness clause that is contained in the Communications
17 Decency Act.
18 There are slightly different wrinkles.
19 JUDGE DALZELL: Right, and your point is that if
20 they'd had the better of the argument if that case was
21 applicable to this situation, I suppose.
22 MR. HANSEN: Well, that's -- that's absolutely true.
23 And they'd have the better of the argument if this medium
24 were identical to the broadcast medium. The Government also
25 says that indecency and patent offensiveness mean different
11
1 things in different media. And so I'm not sure we can easily
2 borrow from the other media.
3 JUDGE DALZELL: But don't we run into trouble since
4 the patently offensive locution comes verbatim out of Supreme
5 Court cases, wouldn't it be a bit of a leap for the three of
6 us who at last report are not on the Supreme Court to say oh,
7 that's unconstitutionally vague?
8 MR. HANSEN: No, I don't think it would be a leap at
9 all. I don't think the Supreme Court has ever found that
10 that phrase -- either of the two phrases at issue in this
11 case are not vague. The closest the Supreme Court has come
12 to commenting, if you will, on the vagueness of the patent
13 offensiveness phrases is Pacifica, the seven dirty words
14 George Carlin monologue case.
15 The Court in that case specifically does not reach
16 the vagueness question, instead all they say is that in the
17 context of this monologue, this monologue is punishable. We
18 agree that it is legitimate for the FCC to regulate this
19 monologue, to make it go at three in the morning instead of
20 three in the afternoon. They don't reach the question of
21 whether the FCC's definition of either indecency or patent
22 offensiveness was unconstitutionally vague.
23 In addition to that, as I was suggesting a minute
24 ago, we have some evidence from the Government in this case
25 that the definition of indecency and patent offensiveness in
12
1 the medium of cyberspace is different than its meaning in
2 broadcasting. I don't -- I'm not sure I can understand --
3 JUDGE DALZELL: But that's not the Government. What
4 we have to look at, I mean how Mr. Coppolino and his
5 colleagues interpret it is one thing, what we have to
6 interpret as a law that Congress adopted and with all
7 deference to Justice Scalia's views of statutory
8 construction, you know, if we look at the conference report,
9 et cetera, that's what we look at to find a meaning, not the
10 Government's brief, isn't it?
11 MR. HANSEN: Oh, I think that's -- I think that's
12 exact. I think first, with deference to Justice Scalia, I
13 think you first look at the language of the statute, but I
14 think the conference report -- I agree with your Honor, the
15 conference report provides useful information in helping to
16 interpret the language of the statute.
17 But I think there's one other thing that can be said
18 about the depth -- the vagueness or lack of vagueness of the
19 definition of indecency or patent offensiveness, either one,
20 and that is I think we've come a long way since the Pacifica
21 decision in terms of finding out whether we can accurately
22 define what indecency means.
23 And this case, and the repeated citation to the FCC
24 definitions of indecency I think is the most vivid example
25 that whatever we were predicting in Pacifica we were going to
13
1 be able to do, that is narrowly and tightly or precisely
2 define vagueness, we've now learned we can't do it. And this
3 case provides any number of examples of why that's the case.
4 For example, the -- as the Court is aware, the
5 obscenity test, the Miller test, includes patent
6 offensiveness as well, but it also includes the element that
7 the speech be prurient and it also includes the element that
8 the speech have no serious value.
9 Well, in this case the Government hints at the
10 notion that those concepts are somehow embedded in our
11 definition of either indecency or patent offensiveness. They
12 don't ever explicitly say that and in fact at some points
13 they seem to back away from it, but they certainly hint at
14 it.
15 The FCC has found that prurience is not a necessary
16 part of either indecency or patent offensiveness. Indeed the
17 George Carlin monologue itself, it's hard to see how anyone
18 could find it prurient. You might find it humorous or you
19 might find it unhumorous, there are a lot of things you might
20 say about it, but it's hard to see how anyone would be turned
21 on by the George Carlin monologue.
22 So if we're in fact looking to the FCC or looking to
23 prior cases as to what indecency means, I think we have to
24 reject the Government's notion to suggest that somehow this
25 case is about prurience. What --
14
1 JUDGE DALZELL: But both sides have cited a lot of
2 FCC decisions, very helpfully. One that I thought was rather
3 interesting that I take it neither your organization nor the
4 party involved thought to take to the Supreme Court was this
5 very interesting case, Merrill Hansen, spelled the same way
6 as your surname. I don't know, any relation?
7 MR. HANSEN: No relation, no relation, your Honor.
8 JUDGE DALZELL: Okay. Where the two -- where the
9 two disc-jockeys were talking about the Playboy article
10 involving the alleged rape by Jim Baker of Jessica Hahn and
11 even though the Commission agreed that it was newsworthy and
12 I must say, reading the transcript myself, it seemed to me
13 that the disc-jockeys who may have started out thinking they
14 were going to make a joke of it, and when they found out at
15 least in their view that Ms. Hahn really was raped. And they
16 said hey, this is really serious, this is bad stuff. Okay?
17 Sounds to me like pretty constitutionally protected
18 discussion of a public figure and the Commission says,
19 acknowledging that it was newsworthy at the time, that the
20 merit of the work is simply one of many variables and held
21 that it was appropriate to fine them a forfeiture of $2,000
22 for that.
23 Now, nobody said, nobody said a constitutional boo
24 to that decision, did they?
25 MR. HANSEN: Well, somebody should have. But as far
15
1 as I know, no one did.
2 JUDGE DALZELL: But after Pacifica, could you say
3 boo?
4 MR. HANSEN: Oh, I think absolutely could. I think
5 that is the -- that case is one of the most perfect examples
6 of how we have now learned that the effort we started, the
7 road we started down in Pacifica to define indecency isn't
8 working. I mean, the Government in this case suggests that
9 there's some sort of serious value component to patent
10 offensiveness and indecency. But then, as your Honor quite
11 properly suggests, the FCC rejects the notion that there's a
12 serious value component.
13 And if we put back into indecency or patent
14 offensiveness prurience and serious value, we've recreated
15 the definition of obscenity. We then no longer need the
16 concept of indecency.
17 JUDGE DALZELL: But if you're right, wouldn't we
18 have heard some echo in Sable, for example, some quibbling in
19 Sable? I mean I agree with you that Pacifica has been
20 narrowed over time, but notably it hasn't been narrowed on
21 the indecency point. Wouldn't you agree with that?
22 MR. HANSEN: No, I'm not sure I would agree. I
23 think there has continued to be ferment in the --
24 particularly in the lower courts at least about the question
25 of whether these, these clauses can be properly defined and
16
1 whether they are vague or overbroad.
2 For example, in Alliance, which was argued recently,
3 one of the issues lurking in Alliance -- it may not be
4 reached by the Supreme Court because the Supreme Court's
5 dealing with --
6 JUDGE DALZELL: I know, we talked about that though
7 and I think we've all reviewed the transcript and the word
8 indecency didn't even come up.
9 MR. HANSEN: No, but --
10 JUDGE DALZELL: So we shouldn't hold our breath for
11 that decision, should we?
12 MR. HANSEN: No, and I don't think the Supreme
13 Court, I suspect the Supreme Court won't give us guidance on
14 that in that case, but my point is that the issue of whether
15 the concept of indecency or patent offensiveness is
16 unconstitutionally vague remains in ferment. We in fact cite
17 some lower court cases that in some context have found that
18 those kinds of clauses are in fact unconstitutionally vague.
19 It is fair to say that some, there are courts that
20 have said that given Pacifica we are going to say that that
21 issue is foreclosed, but we think it's by no means.
22 JUDGE SLOVITER: In a criminal context?
23 MR. HANSEN: No, and indeed --
24 JUDGE SLOVITER: Has there been any criminal case
25 that has sustained, that you know of, let's say any Federal
17
1 criminal case that has sustained the use of indecency?
2 MR. HANSEN: No. We looked very hard for it. As
3 far as I can determine there is only one other place where
4 indecency or patent offensiveness, there are two, where
5 they're a crime as opposed to some sort of regulation,
6 broadcast and the Dial-A-Porn context, we looked very hard to
7 see if any in the last 20 or 50 years anyone had ever been
8 either charged or convicted of indecency in any of those
9 contexts. We were unable to find a single example.
10 We found a couple of cases in which people have been
11 prosecuted for a statute that said you may not engage in
12 obscene or indecent speech, the case seemed to go -- the case
13 explicitly went off purely on the obscenity issue, but we
14 found no example of a crime.
15 And indeed in Pacifica the Court suggested that the
16 reason they were able to reach out and find the Carlin
17 monologue on acceptably -- acceptable to channel it to some
18 other part of the day, one of the reasons they were able to
19 do that was because it was a regulatory context and not a
20 criminal context. They explicitly suggested that they might
21 have reached a different result.
22 JUDGE SLOVITER: Now, this is your vagueness
23 argument --
24 MR. HANSEN: Correct.
25 JUDGE SLOVITER: -- that you're in. Okay. You're
18
1 going to get to your First Amendment -- I mean to your over-
2 breadth argument?
3 MR. HANSEN: Absolutely, although I think they --
4 yes, absolutely. Although I think they are -- it's difficult
5 to pull them apart. It's certainly analytically possible to
6 pull them apart.
7 JUDGE DALZELL: It's easy to do that, isn't it?
8 MR. HANSEN: Well, but --
9 JUDGE SLOVITER: You have different constitutional
10 provisions.
11 JUDGE DALZELL: Yes.
12 MR. HANSEN: But the facts that are sort of relevant
13 to them are identical. For example, if you assume that
14 prurience is no longer part of the definitions here or -- and
15 if you assume that this act, these two phrases do include
16 material of serious value, then I think it presents you
17 right, flat out the issue of whether we now have an over-
18 breadth problem, that is whether we are now reaching speech
19 that is constitutionally protected for adults that has
20 serious value, that although it is about sex is not about
21 prurience.
22 I think that -- I think we're flatly presented with
23 the question of whether the Congress can criminalize such
24 statutes.
25 JUDGE DALZELL: See, you may be right on the -- as
19
1 an abstract question, if you were righting a law review
2 article about what the vagueness rule should be here, but my
3 two colleagues and I, because we're not the Supreme Court,
4 have got to, as best we can, limit existing Supreme Court
5 precedent and apply it here.
6 And I have to tell you, Mr. Hansen, that I haven't
7 found a hint in the Supreme Court's jurisprudence. You may
8 well be right that they will say criminal is different, but I
9 haven't seen it yet. This may be the case where they do it,
10 but our problem is we have to apply the Supreme Court's
11 jurisprudence as it exists today on May 10th, 1996, not as it
12 may apply because of your successful advocacy in the Supreme
13 Court, wouldn't you agree?
14 MR. HANSEN: Oh, I certainly agree with that. But I
15 think that in forming your decision you can say to the
16 Supreme Court, you can establish the factual record with the
17 Supreme Court that we've looked at this particular statute
18 and these particular phrases and what we have found is that
19 the people involved in trying to help us define what they
20 mean have not been able to define them for us.
21 I mean let's talk about some of the testimony that's
22 come out. The -- Mr. Schmidt who says that it would be
23 indecent or patently offensive, the Vanity Fair cover would
24 be indecent or patently offensive, Mr. Olsen who says that
25 Playboy is indecent or patently offensive and that all the
20
1 dirty words are indecent or patently offensive, the FCC which
2 says the crude jokes are patently offensive.
3 On the other hand, and morality in media, one of the
4 amici in this case which says that the discussion of gay
5 rights in some parts of cyberspace is patently offensive or
6 indecent.
7 On the other hand we have the Government suggesting
8 that discussion of gay rights is not patently offensive, but
9 the facts in this case suggest --
10 JUDGE DALZELL: But doesn't that --
11 MR. HANSEN: -- we don't know how to define these
12 terms.
13 JUDGE DALZELL: But the problem with that is doesn't
14 your argument ultimately prove too much because the indecency
15 in patently offensive locutions, some of the patently
16 offensive locution comes right out of the Miller
17 jurisprudence.
18 And, for example, you've spent a good deal of time
19 arguing with a good deal of force, I think, about the
20 different community problems because it's one thing to
21 broadcast in a local area, but cyberspace, once something is
22 on it, it's there world wide. But if we take that argument
23 to its logical conclusion, we're going to read out the
24 obscenity definition of Miller, aren't we?
25 MR. HANSEN: No, I think because I think obscenity
21
1 in Miller benefits from the interplay of all three factors.
2 I think if obscenity in Miller were just patent offensiveness
3 I think we would be having trouble.
4 JUDGE DALZELL: No, the community issue because--
5 MR. HANSEN: Oh.
6 JUDGE DALZELL: -- because the patent offensiveness
7 also has the limiting phrase by contemporary community
8 standards and that of course also comes from Miller.
9 MR. HANSEN: Well, that's one of the ways in which I
10 think the application of this -- that particular phrase to
11 this statute presents us with particular problems. I mean in
12 Miller we know pretty much now that the community standards
13 applies to local community standards. In this case we've got
14 a whole series of proposals about what community standards
15 means. We don't know for sure whether it's national
16 community standards or local community standards. The
17 Government's witness suggested it was local community
18 standards, the conference report suggests it's national
19 community standards.
20 JUDGE SLOVITER: Can we decide this case on the
21 preliminary injunction phase of it without reaching the
22 vagueness issue?
23 MR. HANSEN: Sure, yes, absolutely you can.
24 JUDGE SLOVITER: Because you haven't told us how
25 yet.
22
1 MR. HANSEN: Well, I think there are two ways that
2 you can. I think one is -- and one is the over-breadth which
3 you've now pushed me to a second time and I'll now go to --
4 (Laughter.)
5 JUDGE SLOVITER: I don't even see a timer here. Do
6 you have a timer?
7 JUDGE DALZELL: We have the clock, Judge Sloviter.
8 JUDGE SLOVITER: Oh, well, I don't follow that.
9 JUDGE DALZELL: I've been watching it.
10 JUDGE SLOVITER: Yes, I'm used to yellow lights and
11 green lights.
12 MR. HANSEN: I may not have got it the first time,
13 your Honor, but I got it the second time.
14 (Laughter.)
15 MR. HANSEN: And the other way I think you can,
16 before I go on to over-breadth, the other way I think you
17 can --
18 (Laughter.)
19 MR. HANSEN: -- is what Mr. Ennis is going to talk
20 about and that is the whether it's technologically or
21 economically feasible to comply with the statute.
22 If the statute is read to include material that is
23 valuable both for adults and for minors --
24 JUDGE SLOVITER: We have to read the -- we have to
25 read the statute the way it's written, don't we? We'll talk
23
1 to the Government about its effort to change the statutory
2 language but our problem right now is not what the Supreme
3 Court is going to do because the Supreme Court may surprise
4 us all and not take this case. We have an obligation to
5 decide the case in front of us.
6 Now, on what is the narrowest ground on which we can
7 decide this preliminary injunction issue?
8 MR. HANSEN: Well, I'm not sure I know what the
9 narrowest way is.
10 JUDGE SLOVITER: All right.
11 MR. HANSEN: But I think you can say that the act,
12 as written, reaches speech that is constitutionally protected
13 both for minors and for adults. I think the first question
14 is whether it reaches speech that is constitutionally
15 protected for adults, I don't think there's really any
16 serious dispute about that. I also don't think, as for the
17 reasons Mr. Ennis will be discussing, I don't think there's
18 that much serious dispute that an awful lot of adults are
19 going to be precluded from obtaining access to this kind of
20 speech as a result of this act.
21 I mean just to take the most simple example, if we
22 accept the credit card screening mechanism that the
23 Government suggests, there are an awful lot of adults that
24 don't have credit cards and that won't be able to obtain
25 access to speech that is constitution-- they're
24
1 constitutionally entitled to get simply because they don't
2 have a credit card.
3 I mean it reminds me of one of the exhibits the
4 Government suggested in which they said that every 15 year
5 old in America is computer literate. Well, there are 15 year
6 olds in America that aren't literate, much less computer
7 literate. Similarly, there are adults that don't have credit
8 cards and under this scheme won't be able to obtain access to
9 this information.
10 So the first issue and the issue where you can stop
11 if you reach this issue is whether this will prevent adults
12 from having access to information that they are
13 constitutionally entitled to. It's the Butler argument, it's
14 the Sable argument. That is that what we have done in this
15 context is we have, in the guise of protecting children,
16 we've prevented adult, we've required that all speech be
17 brought down to the level acceptable to the most vulnerable
18 minor.
19 But if that, if you are unpersuaded by that part of
20 the argument, then I think you also have to go ahead and
21 reach the question of whether the speech in this case is
22 protected from minors as well as for adults. It is clear
23 that minors do have rights to speech, it's clear that minors
24 do have rights to obtain access to speech.
25 In this instance what we have is a huge volume of
25
1 speech that the undisputed testimony shows is valuable for
2 minors. And let me take a couple of the most obvious
3 examples.
4 The safer sex information is probably the most
5 obvious example. The exhibits in the record and the
6 testimony from the witnesses indicate that a great many
7 minors, particularly older minors, are in fact sexually
8 active. Whether we like that or not is irrelevant, the fact
9 is that they are sexually active. And in order to protect
10 themselves from diseases including the fatal disease of AIDS,
11 in order to protect themselves from pregnancy which is of
12 course a constitutional right for minors as well as for
13 adults, it is important, it's not merely -- it's vital that
14 they obtain access to the kinds of speech that my clients
15 engage in.
16 JUDGE SLOVITER: How do you answer the Government's
17 argument that the act couldn't possibly be read to apply to
18 information of that sort?
19 MR. HANSEN: Well, I think there are -- I think the
20 answer to it is embedded in the colloquy Judge Dalzell and I
21 were having, that is this act prohibits speech that has
22 serious value. The Government's suggesting really that this
23 case is really just about pornography, it's just about
24 really, really sexually explicit stuff. Well, it's not about
25 obscenity, it's not about that level pornography, it's not
26
1 about prurience because prurience is not an element of this,
2 not a necessary element about this and it's not about serious
3 value because speech that has serious value is punishable
4 under this statute.
5 Well, if that's the case, it seems to me safer sex
6 information is most certainly at jeopardy under this statute.
7 JUDGE SLOVITER: The Government suggests that we
8 read this in the context of a conference report, is that
9 correct?
10 MR. HANSEN: Correct, yes.
11 JUDGE SLOVITER: But didn't the conference report
12 specifically exclude a deletion of serious value?
13 MR. HANSEN: No, it's the other way around. The--
14 one of the --
15 JUDGE SLOVITER: It excluded, didn't it exclude,
16 wasn't there an effort to put in an exclusion from the
17 statute for --
18 MR. HANSEN: Oh, yes.
19 JUDGE SLOVITER: -- I used my words -- I thought I
20 used my words carefully.
21 MR. HANSEN: Yes, I'm sorry. The --
22 JUDGE SLOVITER: There was an effort to exclude from
23 the scope of the statute --
24 MR. HANSEN: Matters of serious value. That is
25 there was an effort to make --
27
1 JUDGE SLOVITER: If you haven't, I mean, isn't --
2 MR. HANSEN: Yes, your Honor.
3 JUDGE SLOVITER: -- that important? And why don't
4 you stress that in the argument.
5 MR. HANSEN: Okay.
6 (Laughter.)
7 MR. HANSEN: Yes, the one -- one member of Congress
8 proposed that the statute substitute, harmful minor statute
9 be substituted for the indecency and patent offensiveness.
10 JUDGE SLOVITER: That's a separate issue.
11 MR. HANSEN: Well, harmful to minors includes
12 prurience and includes value. Congress explicitly rejected
13 that alternative and both for the reasons you suggested and
14 for the reason I'm now suggesting, Congress made, I think,
15 crystal clear that value is part of this statute. And if you
16 engage in speech that is about sex, even if it has value, you
17 risk going to jail under this statute.
18 JUDGE DALZELL: I would like to know because --
19 well, you've got about ten minutes left on this. Let's
20 assume we and/or the Supreme Court agree with you and the CDA
21 is held unconstitutional. So Senator Coates and Senator Exon
22 come to you and say Mr. Hansen, you are obviously the right
23 person with Mr. Ennis to talk to, here's the pen, write me a
24 CDA. Could you write a --
25 MR. HANSEN: Somehow I don't think that will happen.
28
1 JUDGE DALZELL: Could you write a child a CDA that
2 passes constitutional muster?
3 MR. HANSEN: I'm not sure you could. I mean
4 Ginsburg suggests that a harmful to minors statute might well
5 be constitutional. The question then would be whether you
6 could apply that standard in the context of cyberspace and I
7 think the answer to that would, at least in large measure,
8 depend upon the ability to comply with the statute which is--
9 which is largely sort of the defenses issues that Mr. Ennis
10 is going to be addressing. My view is no, you could not.
11 JUDGE DALZELL: So therefore the issue really is
12 medium specific is what your argument is?
13 MR. HANSEN: Oh, there's no question that the issue
14 is medium specific. All the case law and the defendants
15 admit that whether -- that the rules are different from
16 medium to medium and that what may be, for example, indecent
17 in TV is not indecent here. What may be an accept --
18 constitutionally acceptable rule in the area of broadcast is
19 not -- may not be a constitutionally acceptable rule here.
20 JUDGE DALZELL: So your position is then that you
21 would give the pen back to Senator Exon and Senator Coates
22 and just say I'm terribly sorry but for this medium we can't
23 do it? Is that -- is that your position?
24 MR. HANSEN: Well, yes, I would say that and then I
25 would also say to Senators Exon and Coates: but I have a
29
1 better solution for you to the problem that you're troubled
2 about and that solution is the whole constellation of PICs
3 and Surfwatch and the other mechanisms that empower parents
4 to be able to prevent their children from having access to
5 indecent material and yet don't infringe on constitutionally
6 protected rights, either for children or for adults.
7 JUDGE DALZELL: And they say to you that's okay,
8 that's great, how do we make sure this happens, they say, we
9 want to give you a law to make sure this happens.
10 MR. HANSEN: I think my first answer would be relax
11 for a second, it's happening. I mean, you know, all of the--
12 we have considerable evidence that PICs is coming along, it's
13 going to be up very soon. We have considerable evidence that
14 AOL is work-- and the other on-line services are working
15 rapidly to improve and tighten and strengthen their parental
16 control mechanisms.
17 The attention that this act has gotten and that this
18 case has gotten has been enormous impetus toward people
19 finding those kinds of parental --
20 JUDGE SLOVITER: What level of scrutiny do we apply
21 to this statute?
22 MR. HANSEN: I don't think there's any question. I
23 think the Government concedes that this is -- that you have
24 to find -- in order to uphold this statute you have to find,
25 you have to apply strict scrutiny and you have to find that
30
1 there is no -- that it is narrowly tailored. Both
2 requirements have to be found here before this statute can be
3 upheld.
4 JUDGE SLOVITER: Have you commented on the narrow
5 tailoring?
6 MR. HANSEN: No, the narrow tailoring largely goes,
7 I think, to the defenses which I think Mr. Ennis is going to
8 address although there isn't --
9 JUDGE SLOVITER: What do you mean the narrow
10 tailoring goes to the defenses? Can't you have a free speech
11 case in which the statute doesn't have any written-in
12 defenses?
13 MR. HANSEN: Yes.
14 JUDGE SLOVITER: Isn't that part of the basic
15 concept of what we're supposed to do when we look at whether
16 something's protected under the first amendment?
17 MR. HANSEN: Yes, I think that -- I think that part
18 of the question is, is the definition of speech here
19 sufficiently narrowly tailored that it gets at the problem
20 that Congress was trying to get at and doesn't reach out and
21 get a -- and create other problems. And I think for the
22 reasons, all the reasons we've been talking about this
23 morning, I think this speech clearly does reach out to speech
24 well beyond that which the Government's professed interest
25 covers.
31
1 JUDGE BUCKWALTER: Mr. Hansen, I've been concerned
2 throughout this, my involvement in this, about the question
3 of this being media specific. And if it is media specific,
4 what is your position is the media it's most analogous to and
5 what is the Government's position.
6 But I don't want you to speak for the Government.
7 (Laughter.)
8 MR. HANSEN: Our position certainly is that if we
9 are to draw an analogy, print would be the appropriate
10 analogy because in this -- but I think we would suggest to
11 you that this is a medium different than all other media in
12 the sense of its democratizing and many to many qualities.
13 That is almost all the other media, with the
14 possible exception of telephone, is a relatively limited
15 number of speakers giving out information to a large number
16 of listeners. One of the real marvels of this medium is it's
17 making us all speakers and listeners and thus we think it's
18 entitled the highest protection because it enable-- it
19 empowers the most number of speakers.
20 JUDGE BUCKWALTER: Thank you.
21 JUDGE DALZELL: I want to get back for a second
22 because it goes, I think, to your over-breadth argument here
23 where you argue about that some minors, older minors should
24 be entitled -- for example, sexually active minors. But
25 doesn't that undermine -- you would agree that Congress
32
1 surely has the power to define who a minor is.
2 MR. HANSEN: Yes.
3 JUDGE DALZELL: And any definition it comes up with
4 is by definition one size fits all because if you get back
5 from that don't you drive the courts to determine, for
6 example, is this -- is 12 mature or is this child
7 sufficiently mature, this one's sexually active, this one's
8 not?
9 And so to avoid that kind of unedifying wildly
10 inefficient system, Congress as every legislature has the
11 inherent power to say who is a minor and who isn't. Isn't
12 that right?
13 MR. HANSEN: Oh, I think that's right, but I think
14 their definition of the minor in the context of this statute
15 has to bear some relationship to a valid governmental
16 purpose. That is, if they decided that a minor was 30, I
17 think we would all have little difficulty throwing that out
18 because we believe that there are 25 year olds who have, you
19 know, the sufficient maturity and sufficient need for the
20 kinds of speech we're talking about here that they ought to
21 be able to have access to it.
22 Similarly, I think, we can say given the nature of
23 the speech involved here and given the realities of the world
24 that drawing the line at 18 in this context approaches the
25 same level of irrationality in the sense that there are
33
1 certainly 17 year olds who have sufficient maturity and
2 sufficient --
3 JUDGE DALZELL: But isn't that an argument that you
4 should make to Congress and not to us?
5 MR. HANSEN: Well, I think it's --
6 JUDGE DALZELL: I mean could we say as a matter of
7 constitutional law that the -- that the drawing the line at
8 18 was so irrational as to violate, I assume, due process?
9 MR. HANSEN: Oh, I think you can. I think you can--
10 JUDGE SLOVITER: You want us to say the statute
11 would be constitutional if it was to 14?
12 MR. HANSEN: No, I don't want you to say that, but I
13 do -- but I do think --
14 JUDGE SLOVITER: Well, then I don't understand what
15 this argument goes to.
16 MR. HANSEN: The question is whether this statute is
17 reaching out to a great deal of information that basically
18 everyone concedes is valuable, at least for a large number of
19 minors. And if it is in fact speech that is valuable for a
20 large number of minors, not only not harmful but valuable,
21 then the statute is over-broad even as it applies to minors
22 and not just as it applies to adults. And I think that's how
23 I would use the question.
24 And I think --
25 JUDGE SLOVITER: Go ahead.
34
1 MR. HANSEN: I think there is some notion to the
2 fact that the Government, the Congress can draw some lines in
3 this area but where the line sweeps in large numbers of
4 minors who are appropriately, who ought to be appropriately
5 able to see this kind of information --
6 JUDGE DALZELL: Based on your reading of the
7 jurisprudence, how substantial does the over-breadth have to
8 be for it to cross the line of impermissibility?
9 MR. HANSEN: I think if it -- if more than a small
10 number of applications are involved then I think you have
11 substantial over-breadth. That is I think the over-breadth--
12 JUDGE DALZELL: What's your citation for that
13 proposition?
14 MR. HANSEN: I don't have one off the top of my head
15 but I'll have one by the time of rebuttal, if you'd like.
16 (Laughter.)
17 JUDGE DALZELL: Fair enough.
18 MR. HANSEN: I think the case -- the non substantial
19 over-breadth cases, the cases that say we -- there's
20 substantial over-breadth here --
21 JUDGE SLOVITER: It was in your brief and in the
22 ALA's brief.
23 MR. HANSEN: They're in both briefs and they talked
24 about the question -- it is possible to hypothesize a small
25 number of applications that might be constitutionally
35
1 protected and that's not what we're talking about in over-
2 breadth. And that's the line of cases I am drawing on for
3 the answer.
4 In our view the -- one of the crucial parts of this
5 case is that which we've just been discussing and that is the
6 nature of this medium here. We have what is a new medium, is
7 an enormously exciting medium, it is a democratizing medium
8 and it is an enormously evolving medium.
9 The testimony was undisputed that this medium is
10 changing on a daily basis and changing rapidly. This statute
11 not only infringes constitutional rights in the ways we've
12 talked about this morning but it also has the potential for
13 stifling this new and exciting and dramatic medium and in our
14 view this Court should find the statute unconstitutional.
15 JUDGE DALZELL: Thank you.
16 Shall we call Mr. Ennis?
17 JUDGE SLOVITER: Sure.
18 JUDGE DALZELL: Mr. Ennis?
19 MR. ENNIS: Good morning, your Honors.
20 JUDGE DALZELL: Good morning, Mr. Ennis.
21 MR. ENNIS: Bruce Ennis representing the ALA
22 plaintiffs.
23 I'm going to speak primarily about the Subsection E
24 safe harbor defenses to Subsection D's criminal prohibition.
25 To put it in context, I think that it's fair to say that
36
1 unless speakers can use the safe harbor defenses authorized
2 by Subsection E, then Subsection D standing alone would
3 constitute a flat ban on speech that is constitutionally
4 protected for adults.
5 JUDGE SLOVITER: Let me ask you a general
6 proposition, do you know of any criminal law that might have
7 been unconstitutional but for defenses that were put in? I
8 mean this, the whole proposition that you can
9 constitutionalize a possible over-broad or vague criminal law
10 by defenses is a new one to me but there may be examples out
11 there. Can you think of any?
12 MR. ENNIS: Well, Judge Sloviter, I think that's a
13 key question in our case. I'm not aware of any. There --
14 JUDGE SLOVITER: I guess it's a question for the
15 Government then, giving them advance notice.
16 MR. ENNIS: The closest I can think of that, your
17 Honor, are examples from broadcast and Dial-A-Porn but
18 they're not like this law.
19 JUDGE SLOVITER: But they're not criminal statutes,
20 are they?
21 MR. ENNIS: Well, both -- yes, they are both
22 criminal statutes.
23 JUDGE SLOVITER: Okay.
24 MR. ENNIS: Though the FCC has never sought or
25 obtained criminal sanctions in the broadcast area against
37
1 indecent speech. And --
2 JUDGE DALZELL: Well, although Pacific and Southern
3 Company, Incorporated, licensee of radio station KSD-FM, when
4 it got fined -- they called it a forfeiture of $2,000, smells
5 like a fine to me.
6 MR. ENNIS: Well, it certainly is and it's an
7 administrative fine, your Honor. All I'm pointing out is
8 that the Supreme Court stressed in its Pacifica decision that
9 it was not dealing with a criminal sanction.
10 JUDGE DALZELL: Quite right, you're quite right.
11 MR. ENNIS: But let me return to your question
12 because it is an important question. In every other medium
13 where Government attempts to regulate or criminalize
14 indecency, in every other medium speakers have a sure and
15 safe way of complying with the act, all speakers.
16 For example, in broadcast, speakers know that if
17 they broadcast the indecent material only in the evening
18 hours that are specified by FCC as okay for indecent
19 material, they are at no risk whatsoever of any governmental
20 statute.
21 In the dial-a-porn context which only regulates
22 commercial dial-a-porn, all commercial providers of dial-a-
23 porn can use a credit card which is a complete defense, all
24 speakers in the commercial dial-a-porn context have a sure
25 and safe and completely effective safe harbor. That is
38
1 emphatically not the case with respect to this act.
2 So it does raise the question you've asked, is there
3 ever an example in which you can ban speech and then put the
4 affirmative burden on the speaker to show with evidence and
5 an affirmative defense to a prosecution that their speech
6 somehow comes within a safe harbor and the answer is no.
7 JUDGE SLOVITER: Okay. And then in -- and of course
8 if the Government disagrees though we expect it will tell us,
9 but to whom is the safe harbor provision, the defense
10 provision available? Is it available for all of the persons
11 who might, individuals who might be held liable under A and D
12 or only some of them?
13 MR. ENNIS: Your Honor, the defense on its face is
14 available and in fact must be raised as an affirmative
15 defense by all of the millions of speakers who use the
16 Internet.
17 In reality, as I hope to show this morning, the
18 defense is not available to any speakers who use the Internet
19 except for commercial speakers who charge for access to their
20 speech. With that sole exception, not one of the so-called
21 safe harbor defenses can with any reasonable --
22 JUDGE DALZELL: Well, apparently those defenses are
23 merely evidence, as I understand Mr. Keeney's letter to our
24 colleagues in New York, right?
25 MR. ENNIS: That's at most what they are.
39
1 JUDGE DALZELL: At most evidence.
2 MR. ENNIS: Well, that's right, the Keeney letter--
3 JUDGE DALZELL: But it's still going to be up to a
4 jury to determine whether that carries today, right?
5 MR. ENNIS: That's correct, Judge Dalzell. The
6 Keeney letter says that at most, if a defendant takes the
7 steps the Government suggests, a speaker takes the steps the
8 Government suggests, at most that would be, quote,
9 "substantial evidence" which that defendant in a criminal
10 prosecution could then argue to a jury would qualify for the
11 safe harbor defense.
12 But it would be up to disparate juries throughout
13 the country.
14 JUDGE BUCKWALTER: But in a criminal setting the
15 burden would always be on the Government to prove that it was
16 not a good faith defense, it would never be upon the --
17 MR. ENNIS: You would think so, Judge Buckwalter,
18 but--
19 JUDGE BUCKWALTER: Or even in insanity.
20 MR. ENNIS: But that is not the way this statute is
21 set up, which was Judge Sloviter's question. This statute,
22 Subsection -- let me try and break it out.
23 JUDGE SLOVITER: Go ahead.
24 MR. ENNIS: If you start with Subsection D,
25 Subsection D flatly prohibits the display of patently
40
1 offensive speech in a manner that would be, quote, "available
2 to minors."
3 JUDGE DALZELL: Right.
4 MR. ENNIS: As we've shown in our proposed findings
5 of fact 855, we've collected all the evidence, there's no
6 dispute on it, you cannot display speech on the Internet in a
7 way that's broadly available to adults without that speech
8 necessarily also being broadly available to minors.
9 So what that means is if you just look at Subsection
10 D by itself, Subsection D criminalizes the display of speech
11 on the Internet that would be broadly available to adults
12 because it necessarily would be broadly available to minors
13 as well.
14 Thus unless the Subsection E safe harbor defenses
15 narrow the sweep of Subsection D, Subsection D would quite
16 clearly be unconstitutional under Bolger, under Sable and
17 under Butler, all of which unanimously hold that Government
18 cannot constitutionally ban speech to adults even for the
19 purpose of protecting minors.
20 JUDGE DALZELL: Sure. And what did the trick in
21 Sable was the defense.
22 MR. ENNIS: It was the defense.
23 JUDGE DALZELL: And that's what Congress did, at
24 least what Congress thought they were doing. Isn't it fair
25 to say what Congress thought they were doing in this statute
41
1 was they reached into Pacifica and they reached into Sable
2 and they threw it in to the CDA and they said it's got to be
3 constitutional because the Supreme Court says so.
4 MR. ENNIS: Exactly right, Judge Dalzell.
5 JUDGE DALZELL: Isn't that a fair characterization?
6 MR. ENNIS: That is completely fair. The
7 legislative history bears that out. Congress thought --
8 JUDGE SLOVITER: What about the use of the word
9 "knowingly?" Throughout this long proceeding I haven't heard
10 anybody focus on the fact that Subsection D to which you
11 refer specifically makes criminal only that which is
12 knowingly sent to persons under 18 and knowingly permits
13 under Subsection 2. Wouldn't that be part of the
14 Government's required case in chief and what does it mean?
15 MR. ENNIS: I'm not sure, the Government would have
16 to tell you what that means. It's unclear to me what it
17 means.
18 JUDGE SLOVITER: But it's in there.
19 MR. ENNIS: It is in there and -- but and also is in
20 there for Subsection D, but for Subsection D --
21 JUDGE SLOVITER: It is D I'm talking about.
22 MR. ENNIS: On its face it would simply mean knowing
23 that you have displayed speech. If --
24 JUDGE SLOVITER: Don't you have to also know that
25 it's a person under 18?
42
1 MR. ENNIS: No, under D you only have to know that
2 you have displayed speech in a manner that is, quote,
3 "available" to a person under 18, whether anyone under 18
4 ever had access to the speech or not.
5 JUDGE SLOVITER: Well, then that's not A, you're not
6 talking about D(1)(A), you're talking about D(1)(B). And one
7 says knowingly. In other words, whoever in interstate or
8 foreign communications knowingly uses any interactive
9 computer service to display in a manner available to a person
10 under 18 is part of the Government's burden to show that you,
11 that the speaker or sender knew that there were people under
12 18 receiving it?
13 MR. ENNIS: I think that the fair inference from the
14 statute would be that that would be so, but I don't know what
15 the Government's position on that is.
16 JUDGE SLOVITER: Well, lots of times we have been
17 advised to construe a statute to construe the knowingly
18 language in such a way as to make the statute constitutional.
19 That's a construction that is consistent with the language of
20 the statute itself, we don't have to cut out any -- any
21 provision.
22 MR. ENNIS: Yes.
23 JUDGE DALZELL: Isn't your point that America On
24 Line, for example, or Compuserve has to know, they have to
25 know because they'd be stupid not to know that it is
43
1 available to people under 18 because there's no way of not
2 making it available to people under 18?
3 MR. ENNIS: That is the whole point, Judge Dalzell.
4 And if you make the speech broadly available to adults on the
5 Internet, if you wish to speak to the world, this speech will
6 necessarily be available to minors as well and you will know
7 that it is available to minors as well and therefore --
8 JUDGE DALZELL: And you won't be heard to say I
9 didn't know.
10 MR. ENNIS: Right.
11 JUDGE DALZELL: Mr. Burrington could not appear in a
12 courtroom in the District of Ohio where he's from AOL,
13 whoever Compuserve is, and say oh, I didn't know there were
14 people under 18. He'd be cut to shreds by Mr. Coppolino and
15 his friends on cross-examination, wouldn't he?
16 MR. ENNIS: That's correct. That's why Subsection D
17 bans display of speech in a manner that's available to minors
18 on the Internet. And your question was didn't Congress
19 simply think this is okay, we'll borrow the dial-a-porn
20 analogy? Unfortunately, Congress did not hold hearings on
21 the nature of the Internet and it did not focus on this
22 question. It thought that the dial-a-porn analogy would
23 work, it doesn't because the vast majority of speakers on the
24 Internet do not charge for access to their speech.
25 There is a small subset of speakers on the Internet
44
1 who do charge for access to their speech and those speakers
2 can, with the dial-a-porn analogy, require the presentation
3 of a credit card before they allow access to their speech.
4 It is a defense for that small subset of speakers.
5 JUDGE DALZELL: Therefore your argument goes
6 perversely the CDA if it were upheld, the people who could
7 easiest, who could comply with it the easiest are precisely
8 the pornographers.
9 MR. ENNIS: It's even more than that, your Honor.
10 That's correct but it's even more than that. The
11 pornographers, the commercial pornographers who are charging
12 for access to their speech were requiring credit cards before
13 this act was passed. They would continue to require credit
14 cards if this act were enjoined, they would continue to
15 require credit cards if the act were repealed. This act does
16 nothing to protect minors from the commercial speech by
17 commercial purveyors of sexually explicit speech because they
18 already require credit cards.
19 What the act does instead is to burden the huge
20 range of non-commercial speakers on the Internet and say to
21 them you cannot make your speech available for free to the
22 world unless you carry the affirmative burden of coming
23 within the safe harbors.
24 There are only three possible types of safe harbors
25 the Government has suggested and none of them can be used by
45
1 non-commercial speakers. The three categories I think can
2 usefully be thought of as falling into three groups. One is
3 called charging, another would be called screening and a
4 third would be called warning. I think that's a fair way to
5 think of these.
6 We just talked a little bit about the charging. You
7 can charge for your speech on the Internet but the evidence
8 is undisputed that the only speakers who can use, require a
9 credit card before giving access to their speech are
10 commercial speakers who are actually charging for their
11 speech.
12 Credit card companies simply will not verify credit
13 cards for non-commercial transactions, they don't do it.
14 Therefore if I have a Webpage and I want to make my speech
15 available for free, I don't have the option of using the
16 verified credit card defense. No credit card company will
17 verify it. And that's true for the vast majority of speakers
18 on the Internet.
19 So we can forget charging as a safe harbor defense
20 for most speakers. That brings us to screening. Screening
21 requires two things: screening the content of the material
22 to decide which material would be inappropriate for minors
23 and therefore would have to be segregated into a different
24 area and then would require screening for age, so that when
25 people attempt to access the material that is the adults only
46
1 material, you would be able to determine whether the person
2 attempting to access the adult material was an adult or a
3 minor.
4 The evidence is quite clear on that that you cannot,
5 there's no technological way to screen for age based on
6 current available technology, it simply can't be done. And
7 in huge areas of the Internet News Groups, IRC Chat, lists or
8 mail exploders, it is technologically impossible for the
9 speaker to get an adult ID number or a credit card number, it
10 can't be done.
11 And I want to emphasize something here because we've
12 spent most of the time in this case talking about Webpages
13 and the World Wide Web because that's a popular way of
14 speaking on the Internet. We haven't spent as much time
15 talking about News Groups, Chat Rooms and mail exploders for
16 the very good reason that there's no dispute that the safe
17 harbor defenses can't be used in those areas, credit card and
18 adult access codes can't be used on those areas.
19 But the important point is those are huge areas of t
20 he Internet. There are hundreds of thousands of messages a
21 day that are posted to News Groups. So we've concentrated a
22 lot on the World Wide Web, but when we realized that this law
23 bans speech in all those areas of the Internet, we're talking
24 about substantial number of applications.
25 The third possible way of coming within a safe
47
1 harbor is the Government has suggested there are really two
2 ways to --
3 JUDGE SLOVITER: Can you go back to the one before
4 for a minute?
5 MR. ENNIS: Sure.
6 JUDGE SLOVITER: You argue that screening becomes
7 ineffective or unusable because of the need for a common
8 gateway interface? Could you -- I think you argued that in
9 your brief?
10 MR. ENNIS: Well --
11 JUDGE SLOVITER: Would you just bring us into that,
12 explain why that is?
13 MR. ENNIS: The reason that is in news groups, chat
14 rooms and list services is there is no simultaneous
15 communication between the speaker and the listener and the
16 listener has no way of communicating directly with the
17 speaker. So it's not possible to transmit the adult ID code
18 or the credit card number in those mediums of communication.
19 On Web sites it is possible, it is theoretically and
20 technologically possible for the speaker and the listener to
21 communicate interactively.
22 JUDGE SLOVITER: The big companies don't use comment
23 room except common gateway interface. Am I misreading the
24 testimony?
25 MR. ENNIS: No, you're -- you're completely correct,
48
1 Judge Sloviter. I was just trying to explain that in Web
2 sites in general it is possible to have that kind of two-way
3 exchange of information to send adult ID codes and credit
4 card numbers back and forth, but for all of the Web sites
5 that are offered by the major on-line service providers,
6 those Web sites do not have the CGI common gateway
7 interference script capacity that is needed to have that
8 dialogue, so those Web sites can't do it.
9 The only Web sites really that can do it are
10 separate commercial Web sites that are set up by commercial
11 providers of sexually explicit material. And they do it and
12 they require credit card payment.
13 JUDGE SLOVITER: Okay, you were going to your third,
14 the warning.
15 MR. ENNIS: The third is give warning. The
16 Government suggested there are basically two ways of coming
17 within this safe harbor defense and that is to tag your
18 speech, to self label your speech in some way as
19 inappropriate for minors or to register your speech with the
20 Internet Yellow Pages or with one or ten or fifty of the 200
21 and so additional directories of Internet listings.
22 JUDGE DALZELL: Are we to take that point seriously
23 in light of what's happened to Compuserve? Because they did
24 take it and with that service that's in question that you
25 brought to us, to our attention, it is, it says it's adult,
49
1 it's tagged. But it didn't prevent the headlines to
2 Compuserve in the Ohio newspapers and I'm sure that ruined
3 their day, don't you think?
4 MR. ENNIS: I think it --
5 (Laughter.)
6 MR. ENNIS: I think it -- I think it more than
7 ruined their day, your Honor. If you're a commercial on-line
8 provider and there are headlines around the country saying
9 you're being investigated or reviewed or whatever the word is
10 for being a purveyor of pornography to children, you're not
11 going to sign up a whole lot of new subscribers that day or
12 for many days to come. It more than ruined their day.
13 The -- I think you're right. We can't take --
14 JUDGE DALZELL: I mean that suggests to me, and of
15 course I'm going to ask our friends on the other side about
16 this, are they really serious about these defenses? Because
17 that material was tagged, it had a warning.
18 MR. ENNIS: It had a warning and it not only had a
19 warning, it was within the proprietary service and it said
20 you can click this button and that material is not available
21 to any minors in your household.
22 So not only was it tagged, not only was it in a
23 separate directory, it also came packaged with a completely
24 effective parental control device. Even so, that matter was
25 referred on to the FBI.
50
1 Now, the Government can't seriously argue that
2 tagging or putting your name in a registry would constitute a
3 safe harbor defense. The most they've ever argued in their
4 brief is that it, quote, "might qualify."
5 And the Keeney letter says at most it's substantial
6 evidence and it's only substantial evidence if the evidence
7 of tagging is coupled with, quote, "evidence that the
8 marketplace of browsers are actually screening for that
9 particular tag."
10 There was testimony at trial that that is
11 technologically impossible today. It is not technologically
12 impossible today for speakers to know, to have evidence
13 whether the marketplace of browsers are actually screening,
14 so it's an evidence that's totally impossible to provide.
15 JUDGE SLOVITER: Well, what -- I find both your
16 position and the Government's position somewhat inconsistent
17 internally. You say you should, you have a better
18 alternative and that is to have parents do it via Surfwatch
19 and groups like that and yet you argue that the Government's
20 tagging system is not effective, nobody said it's really
21 working yet. The Government says its tagging system is the
22 one that we should use but yours is not working and
23 effective.
24 Now, either there is a potential tagging system for,
25 workable tagging system for both parties or there isn't. The
51
1 evidence shows that there was some success by Surfwatch but
2 minuscule really in the totality of the Internet.
3 What is your position as to why your position is not
4 inconsistent?
5 MR. ENNIS: I understand your question, your Honor.
6 It is a complicated question, let me try to explain that. In
7 order to explain it, I have to back up a half step.
8 JUDGE SLOVITER: Go ahead.
9 MR. ENNIS: And indicate that even if a speaker tags
10 or puts their -- registers with a registry, all it does is
11 warn listeners, give them notice of the nature of the speech
12 so that if they wanted to block the speech and had the
13 software capacity, they could do so.
14 But the Government's experts agree that without the
15 cooperation of the end user with people down the
16 communication chain, merely tagging speech or registering it
17 in a registry does nothing whatsoever to prevent access to
18 that speech by minors. In fact, using search engines minors
19 can more easily gain access to that speech.
20 JUDGE SLOVITER: Then why do you rely on Surfwatch
21 and groups like that to say that is a least restrictive
22 alternative?
23 MR. ENNIS: Well, let me explain that, your Honor.
24 What's wrong with the Government's tagging proposal is it is
25 completely dependent on end users, parental responsibility,
52
1 or it won't shield a single minor from anything.
2 JUDGE DALZELL: But so is PICs.
3 MR. ENNIS: Yes, yes, it is, but there's a diff--
4 here's the difference, your Honor. If the parent is going to
5 be a responsible parent and is going to take steps to protect
6 their children, with PICs, the parent can set the PICs
7 browser so that it will not allow access to any speech on the
8 Internet unless the speech has been rated as appropriate by a
9 third-party bureau the parent knows and trusts.
10 That would completely protect minors from
11 inappropriate material without requiring speakers to self-
12 label or tag their speech at all.
13 JUDGE BUCKWALTER: And that's the essential
14 difference --
15 MR. ENNIS: And that's the essential --
16 JUDGE BUCKWALTER: -- in a nutshell.
17 MR. ENNIS: It is.
18 JUDGE BUCKWALTER: You don't want the speaker to
19 have to do anything and the Government wants the speaker to
20 have to make some judgment.
21 MR. ENNIS: That's the point, your Honor.
22 JUDGE BUCKWALTER: Okay.
23 MR. ENNIS: That is exactly the point because the
24 Government --
25 JUDGE SLOVITER: Are PICs currently working?
53
1 MR. ENNIS: Actually, the press reports yesterday
2 indicated that two days ago the final PIC standards are out,
3 it will be working in July.
4 JUDGE SLOVITER: All right. We don't have any, I
5 think we have to rely on the evidence that was before us. We
6 don't have any evidence that PICs is currently working.
7 JUDGE BUCKWALTER: Well, we --
8 JUDGE SLOVITER: Well, wait a minute, could he
9 answer my question first?
10 JUDGE BUCKWALTER: Right.
11 JUDGE SLOVITER: You can -- go ahead. And, yeah,
12 it's directed to him.
13 MR. ENNIS: Well, that's right and that's evidence,
14 what that means is that PICs isn't working to block the
15 Government's tags either, so that there's no safe harbor
16 today, even if speakers use the Government's L-18 pack.
17 JUDGE DALZELL: But didn't Mr. Vesser who's from the
18 Worldwide Web consortium, didn't he tell us that PICs would
19 be operational in three to six months?
20 MR. ENNIS: Yes, it will be.
21 JUDGE DALZELL: But that is in the record.
22 MR. ENNIS: Yes. Probably in June or July it will
23 be operational. There are -- there are --
24 JUDGE BUCKWALTER: Mr. Ennis, let me get back to the
25 point here, at this point, and then -- it might be the right
54
1 time to get back to it. You gave a little bit of short
2 shrift and I'm sure not intentionally to my talking about
3 burden of proof here. Burden of proof may not be important,
4 I'm not sure yet, but isn't the burden of proof always going
5 to be on the Government in a case like this to prove that the
6 defendant has not -- the burden's not going to be on the
7 defendant to prove his safe harbor is effective, it's going
8 to be on the Government to prove that it's not effective.
9 MR. ENNIS: I'm afraid not, your Honor.
10 JUDGE BUCKWALTER: Because it's like a defense of
11 insanity. I mean you can arrange a defense of insanity but
12 the Government has to prove you were sane, you don't have to
13 prove you were insane.
14 MR. ENNIS: Well --
15 JUDGE BUCKWALTER: And isn't that the same analogy
16 here?
17 MR. ENNIS: It's been a long time since I looked at
18 the insanity defense but my recollection is the Government
19 has to prove you had the mental intent to commit the crime
20 but you bear the burden of establishing insanity defense.
21 JUDGE BUCKWALTER: No, no, well, I don't -- that's
22 a -- that isn't really what you and I have here. I think the
23 same is true in a consensual defense to rape, for example.
24 You may raise that defense but the Government has the burden
25 of proving it was non-consensual. You don't have any burden
55
1 to --
2 MR. ENNIS: Well --
3 JUDGE BUCKWALTER: -- to prove it was consensual.
4 So I mean in this, so in this --
5 MR. ENNIS: Your Honor --
6 JUDGE BUCKWALTER: -- context of criminal law --
7 MR. ENNIS: Let me say that --
8 JUDGE SLOVITER: Why don't you wait till the rest of
9 the question, the rest of Judge Buckwalter's question came
10 out.
11 JUDGE BUCKWALTER: Yeah, I was going to say in the
12 context of criminal law isn't the burden going to be on the
13 Government here? Once the defendant raises the fact of well,
14 I tried to do this and this is what I did, he doesn't have to
15 prove that was effective, the Government has to prove that it
16 was not.
17 MR. ENNIS: Your Honor, I would hope so. That's not
18 my understanding of the Government's position, but it doesn't
19 matter.
20 JUDGE BUCKWALTER: I'll talk to them about that.
21 MR. ENNIS: It doesn't matter because even if the
22 burden is on the Government, still the speaker can have no
23 assurance whatsoever that if they take the steps the
24 Government suggests they will surely and safely have a safe
25 harbor, even if the burden is on the Government to prove that
56
1 the steps were not effective rather on them to prove that the
2 steps were effective, they are still at risk of losing that
3 battle in front of a jury. And it could be any jury in any
4 community in America.
5 Therefore, no prudent speaker --
6 JUDGE BUCKWALTER: Yeah, well, now I'm not exactly
7 sure I know where this burden of proof argument goes in this
8 whole scheme of things but I did want to discuss it.
9 MR. ENNIS: Well, I think it's a very important
10 point and the way I would say it is the statute is
11 unconstitutional, whether the burden is on the Government to
12 deal with the safe harbor defenses or the burden is on the
13 speaker. The unconstitutionality is compounded if the burden
14 is on the speaker.
15 But backing up to Judge Sloviter's question, there
16 are right now today through all of the major on-line service
17 providers ways to block access through Compuserve or Prodigy,
18 for example, to all speech on the Internet that the parents
19 don't want to come in or on America On Line to block access
20 to all areas of the Internet except the small areas that
21 America On Line has prescreened and put in their Kids Only
22 room as appropriate for children.
23 So there are end user capacities for everyone who
24 uses the on-line service providers to block access to the
25 Internet today.
57
1 The point I'm trying to make with this -- the
2 difference between the Government's proposal and ours is the
3 act, tagging and registering cannot possibly protect minors
4 unless parents acquire software that will read the tags and
5 then turn it on and use it.
6 If the parents do that, there is no need for the act
7 because they can block access to all inappropriate speech
8 even if no speaker ever self-labeled or rated their speech
9 and even if there had never been any act at all.
10 JUDGE DALZELL: Doesn't Dr. Olsen's proposal, the
11 minus L-18 proposal have at least one advantage over PICs, as
12 I understand the testimony? And that is with his tagging
13 proposal you could tag the four-letter words in the
14 Canterbury Tales, let's say, and expurgate the Canterbury
15 Tales by tagging those words, whereas as I understand PICs,
16 the best you could do would be to give each page a URL and
17 delete the whole page that has a four-letter word on it. Do
18 I understand the testimony correctly?
19 MR. ENNIS: The testimony was to my mind somewhat
20 confusing on that point but I think that may be an accurate
21 recollection of the testimony. There are some advantages to
22 the L-18 over PICs and some -- and many advantages to PICs
23 over L-18. The principal advantage of L-18 is it's typing in
24 four key strokes, that's it. The principal disadvantage of
25 L-18 is it's a blockbuster, all-or-nothing approach.
58
1 Everything is either patently offensive or it's okay.
2 Whereas with PICs you can say well, this has some
3 nudity but it's in the context of a serious piece of
4 literature or --
5 JUDGE DALZELL: Even under PICs, for example, we
6 heard from Mr. Kuromiya and his group. When PICs becomes
7 operational doesn't Mr. Kuromiya have a tough call to make
8 about the critical path information? Because as I understand
9 his testimony, he said we want to reach those sexually active
10 teenagers who are under 18. So far from having a good faith
11 defense that I did what I could to prevent it, he's going to
12 come in and tell the jury: I want to reach them. In fact, I
13 want to pander and titillate them because I need to get their
14 attention to help save lives.
15 So what's he going to do with PICs?
16 MR. ENNIS: I think that your question illustrates
17 another difference between PICs and the Government's proposal
18 which is quite important to understand. PICs primarily
19 relies upon ratings by third parties that the parent can no
20 or trust. In that example perhaps Planned Parenthood would
21 rate Web sites of material that's sexually explicit but
22 appropriate for minors. The parent might trust Planned
23 Parenthood. They go to Planned Parenthood and Planned
24 Parenthood says yes, you can let your child access Kuromiya's
25 Web site, that's okay, it's good, it's valuable information.
59
1 The Government's proposal, the parent would have to
2 know and trust each of the individual millions of speakers on
3 the Internet. Why would a parent do that? Why would a
4 parent have any reason whatsoever to trust that some
5 individual speaker they know nothing about is accurately and
6 appropriately labeling their speech or is inappropriately
7 labeling their speech?
8 JUDGE SLOVITER: Why would a parent trust anyone to
9 do that? Isn't that a similar indictment of the Surf Watch
10 et al. argument?
11 MR. ENNIS: Well, a parent certainly could come to
12 rely upon third-party rating bureaus that the parent has some
13 knowledge of, for example, the Christian Coalition could have
14 a rating service that many parents might turn to, the ACLU
15 might have one, Planned Parenthood might have one.
16 JUDGE SLOVITER: How feasible are any of these in
17 light of the evidence in this case of the millions of
18 communications that go on all the time on the Internet? And
19 that's both for the Government's proposal and your proposal.
20 MR. ENNIS: Well, what that comes down to, Judge
21 Sloviter, is the amount of risk that individual parents are
22 willing to tolerate with respect to their own children.
23 And the advantage of PICs and Surf Watch Manager and
24 all of the other products we've talked about is they give
25 parents total control, all the way from zero access to the
60
1 Internet to unrestricted access to the Internet or anything
2 in between, based upon the parents' judgment of the balance
3 that's appropriate for their children.
4 That's why -- that's another reason why our proposal
5 is better than the Government's but the most important reason
6 why it's better, let me get right to that, is that the
7 Government's proposal, the Government's tagging and
8 registration proposal will be completely ineffective at
9 blocking or deterring any of the substantial amount of
10 sexually explicit speech that is posted abroad.
11 By definition the criminal laws of this United --
12 United States are not going to deter the posting of indecent
13 or patently offensive material abroad.
14 So the Government's tagging system won't work, it
15 just can't, can't work at all.
16 There was testimony by Ann Duvall that at least 30
17 percent of the sites blocked by Surf Watch are foreign sites.
18 There was testimony by Donna Hoffman that at least 40 percent
19 of all the host computers connected to the Internet are
20 located abroad and that the percentage of foreign computers,
21 as a percentage of the total, is rapidly approaching 50
22 percent.
23 There's no reason to think that there's any less
24 percentage of sexually explicit material posted on foreign
25 computers than on domestic computers, so it's probable that
61
1 about 50 percent of the sexually explicit material available
2 on the Internet is posted abroad.
3 JUDGE DALZELL: Didn't Dr. Olsen or Mr. Schmidt, I
4 forget who, say well, that's all true, but if we have the
5 tagging we can concentrate all of our energy on the offshore
6 content and so we've reduced our problem by, to take your
7 figures, half.
8 MR. ENNIS: But it just doesn't, it makes no sense
9 at all. If they have the tagging but parents are not using
10 the blocking software, the tagging does nothing. If the
11 parents are using the blocking software you don't need the
12 tagging to keep all of that speech away from children. In
13 fact, it's only with the use of the end user software that
14 you can block access to the foreign material as well.
15 JUDGE DALZELL: But on the PICs proposal there was a
16 lot of discussion in the testimony and in your questions and
17 in the briefing about differing communities and differing
18 communities having different standards of indecency, let's
19 say. I don't see how PICs deals with that because PICs is
20 still an all or -- or tagging for that matter, they're still
21 all or nothing.
22 The example I gave of Brainerd, Minnesota versus New
23 York City, okay, which I think most people would agree are
24 rather different communities, PICs would either block both
25 places or not block both places, same thing with tagging,
62
1 right? So you don't deal with the community issue with PICs.
2 MR. ENNIS: That raises the fundamental question
3 with this law because the law makes it a crime to make speech
4 available in a way that's available to minors. And if a
5 parent isn't using PICs or Surf Watch, that speech will be
6 available in all those communities you talked about. That's
7 the fundamental problem with the law.
8 If Congress had thought about this, they might have
9 tried to come up with a much more sensible law that could
10 have done many things. For example, it could have encouraged
11 the development of these end-user software products.
12 One of the real problems with this law, in my
13 opinion, is that it gives the wrong signal to parents. I
14 think it gives a signal to parents that the Federal
15 Government has stepped in and taken care of the problem of
16 inappropriate material on the Internet, so parents don't need
17 to worry.
18 In fact, parents do need to worry. Even with the
19 Government's tagging proposal, if parents don't go to the
20 trouble of acquiring and using parental software devices, all
21 of that material will be available to their children despite
22 this act. That's one thing I hope can come out of the
23 publicity surrounding this case is that parents will learn
24 that they do have available to them very effective parental
25 control devices, but they have to use them.
63
1 This act has not taken care of the problem and if
2 the parents don't use those devices, all the sexually
3 explicit speech on the Internet will be available in every
4 home in America that's connected to the Internet, despite the
5 act.
6 Let me briefly say, there were some questions about
7 facial challenge, in earlier briefs the Government seemed to
8 take the position that we could not bring a facial challenge.
9 But if you look at Pages 14 through 17 of the Government's
10 post hearing brief, the Government acknowledges that we can
11 bring a facial challenge in at least two ways. We're
12 bringing a vagueness challenge and we're alleging that the
13 act is vague in all applications, so that's appropriate as a
14 facial challenge.
15 More to this point, the Government now acknowledges
16 that we can bring a substantial over-breadth facial challenge
17 and we have standing to do that, all we have to show is that
18 the law is substantially over-broad.
19 And in answer to the question from your Honors, the
20 two cases that discuss that are Shomburg and City of Houston,
21 both of which say that a law is over-broad if a substantial
22 number of its applications would be unconstitutional.
23 What I think we have shown is that Subsection D is
24 substantially over-broad because in every one of its
25 applications except for commercial speakers, it bans speech
64
1 that is constitutionally protected for adults.
2 JUDGE SLOVITER: Why do you keep ignoring Subsection
3 A which I think you also challenge?
4 MR. ENNIS: Well, we do challenge it, your Honor.
5 We're not ignoring it, it's just that the --
6 JUDGE SLOVITER: Well, you keep focusing on
7 Subsection D.
8 MR. ENNIS: That's right. That's because Subsection
9 D is the section that will affect most Internet speakers,
10 those who want to make their speech broadly available to the
11 world.
12 Subsection A is a more focused law about speakers
13 who want to make their speech available to a much more tiny
14 segment of the world. We do challenge both, but the truly
15 draconian and sweeping provision of this law is Subsection D.
16 JUDGE DALZELL: If the Government though -- and I
17 intend to ask Mr. Coppolino about this -- the Government does
18 say in Footnote 46 of their brief, Page 37, I think, that
19 they have, quote, "concerns," close quote, about your
20 standing because they argue that your worries are so far
21 fetched, so hyperbolic as to raise these, quote, "concerns,"
22 close quote, about your standing. Do you want to address
23 that?
24 MR. ENNIS: Well, first of all, I think the
25 Government is simply wrong about that, I think our concerns
65
1 about our standing are not at all hyperbolic or far-fetched
2 as the Compuserve incident from just two days ago would make
3 painfully clear.
4 This is a law which, if you look at the text and at
5 the conference report, makes clear it criminalizes the
6 display of patently offensive speech that is not obscene and
7 the law makes clear that that speech is criminalized even if
8 it has serious value.
9 Therefore, all of our speakers who engage in speech
10 that does have serious value are at risk of prosecution under
11 this law.
12 Also, under the over-breadth doctrine, pure over-
13 breadth doctrine, we would have standing under Fox to bring
14 this challenge on behalf of those speakers whose speech did
15 not have serious value. So either way you look at it, I
16 think there's no standing issue in this case.
17 JUDGE DALZELL: Well, it's certainly true that the
18 Government has said consistently that -- and of course it
19 never filed a motion as to standing and it was assured to me
20 when we were talking about the stipulations that the
21 Government had no standing concerns, but that Footnote 46
22 raised my eyebrows a little bit and that's why I raised it
23 with you.
24 MR. ENNIS: Well, let me make a footnote point to
25 that is that not only have we brought an extraordinarily
66
1 broad coalition of plaintiff groups representing truly
2 virtually all of the mainstream media publication and
3 computer entities in America. Those groups have sued also on
4 behalf of their patrons, their subscribers and their users.
5 The librarians are also suing on behalf of their patrons and
6 members. America On Line is suing on behalf of its
7 subscribers.
8 So we're suing on behalf of millions of speakers on
9 the Internet. Many of those speakers speak to news groups,
10 list serves, IRC chat rooms, and it's quite likely that some
11 of the speech they engage in would not have serious value
12 under the Government's definition.
13 So we're also speaking on behalf, we're bringing
14 this suit on behalf of speech that does not have serious
15 value. Accordingly, we have standing for that third reason
16 as well.
17 I'd like, if I could, to make one final point and
18 then reserve the balance of my time for rebuttal.
19 JUDGE SLOVITER: I think you've used most of your
20 time, but go ahead.
21 JUDGE DALZELL: Yes, you've reserved 15 minutes for
22 rebuttal.
23 JUDGE SLOVITER: But we'll see -- we'll hear you on
24 rebuttal.
25 JUDGE DALZELL: And you ten, right.
67
1 MR. ENNIS: Do I still have some time left?
2 JUDGE DALZELL: Yes, you have five minutes.
3 MR. ENNIS: Let me make one brief point.
4 JUDGE SLOVITER: And a substantial amount of your
5 initial time.
6 MR. ENNIS: Yes. The Government suggests that the
7 act should not be struck down because the act in combination
8 with user blocking software would be more effective than
9 either alone. There are several problems with that argument.
10 First, as I think we have shown, this act does nothing,
11 literally nothing or at most only a marginal amount to
12 protect children from inappropriate speech that would not
13 already be done as a result of market forces and end user
14 software even in the absence of the act. And that marginal
15 benefit comes at the expense of suppressing constitutionally
16 protected speech for adults. So the act violates --
17 JUDGE SLOVITER: That implicates a factual issue as
18 to how frequently one might -- well, a child is likely to
19 inadvertently find speech that was intended to be suppressed
20 by this statute.
21 What is your understanding of, given all the
22 evidence that we saw here, of the frequency of what the facts
23 show as to the frequency of an inadvertent coming across
24 that--
25 MR. ENNIS: I think the evidence on that is clear
68
1 and I think Congress agreed. The Government's expert, Howard
2 Schmidt, testified in court that, quote, "The odds are slim
3 that someone would come across a sexually explicit site by
4 accident."
5 Congress in fact found in the act in one of its
6 findings that the interactive computer services, as the name
7 suggests, the word interactive, "offer users a great deal of
8 control over the information that they receive as well as the
9 potential for even greater control in the future as
10 technology develops."
11 JUDGE SLOVITER: Well, now we saw a few examples
12 presented by the Government's witnesses where that was
13 likely. What I have yet to see is somebody testify as to
14 how, beside the very slim, how frequently that could occur
15 because obviously it can occur.
16 MR. ENNIS: It obviously can occur and --
17 JUDGE DALZELL: We saw it in the Jasmine example.
18 MR. ENNIS: Yeah, it obviously can occur. We don't
19 take the position that it is impossible to be surprised by
20 what comes up on your computer screen.
21 We do take the position and have all testified to
22 this effect, Bill Burrington testified to this effect, that
23 in interactive computer services, unlike broadcast TV or
24 radio, the speaker, I mean the listener makes an affirmative
25 choice of where they are going to go and they have to select
69
1 where they're going to go.
2 You don't turn on your computer and sexually
3 explicit images pop on your screen. You turn on your
4 computer and you have to select where you want to go to get
5 there.
6 JUDGE SLOVITER: Is the Government entitled to
7 prevent a child who wants to go into sexually active material
8 from being able to do so?
9 MR. ENNIS: Regardless of the parents' wishes?
10 JUDGE SLOVITER: Mm-hmm.
11 MR. ENNIS: I think that's a very difficult
12 question, your Honor. I think as a constitutional matter if
13 Congress wanted to have as an interest and to exercise a
14 parents' patri interest in protecting child-- minors from
15 access to material, even if their parents thought it was
16 appropriate for their children, it could conceivably have
17 such an interest. It would raise very serious constitutional
18 questions in my mind, some of which are noted in the fabulous
19 opinion by your Honor.
20 But the important point here is, is that Congress
21 has given us no reason whatsoever to think that that is the
22 interest underlying this act. To the contrary, in this act
23 Congress found as a fact that its objective in the text of
24 the act was, quote, "To empower parents to restrict their
25 children's access to objectionable or inappropriate on-line
70
1 material" and the conference report is even clearer.
2 The conference report confirms, quote, "The
3 important Federal policy of empowering parents to determine
4 the content of communications their children receive."
5 JUDGE SLOVITER: Isn't there evidence on the record
6 that there are a great number of possibilities for people
7 under 18 to access the Internet outside of the home? There
8 are lots -- there's lots of evidence --
9 JUDGE DALZELL: Internet cafes.
10 JUDGE SLOVITER: Well, but even if little children
11 don't go to cafes --
12 JUDGE DALZELL: Libraries.
13 JUDGE SLOVITER: -- at libraries, et cetera,
14 schools.
15 MR. ENNIS: Schools.
16 JUDGE SLOVITER: Yeah, and where -- and you also
17 assume in your argument and in your brief very knowledgeable
18 parents, parents who know how to, assuming they have a
19 computer in the house, who will know how to contact the
20 entities that will be able to help them in putting things
21 like Surfwatch on.
22 And I'm not sure how realistic that is in today's
23 world. I mean we have children who don't know about birth
24 control, who aren't told by their parents about AIDS, because
25 we have a whole substrata of our society in which parents are
71
1 unwilling or unable to give this information. So how can you
2 make the assumption that we can rely on parents for this kind
3 of protection?
4 MR. ENNIS: Well --
5 JUDGE SLOVITER: And do we have to?
6 MR. ENNIS: Two responses, your Honor. Your final
7 question is yes, we do have to. If parents do not act
8 responsibly, if parents don't do what they can do, nothing in
9 this act will protect children from inappropriate material,
10 nothing.
11 But the two answers I'd like to give are first, I
12 respectfully disagree with your Honor. I think the testimony
13 by Ann Duvall, the testimony by Bill Burrington was clear
14 that it is very easy for parents to use the parental control
15 devices like Surfwatch, Surfwatch Manager, the America On
16 Line Compuserve Project Parental Control devices, it's really
17 quite easy. Any parent that has a computer can almost
18 certainly use those devices.
19 Second, if parents can't figure out how to use those
20 devices then that is a problem for the Government as well
21 because the Government's whole idea about tagging or
22 registering speech can't work unless the parents have the
23 capacity to use that end-user software. So if it's a
24 problem, it's a problem for the act, not a problem for our
25 case.
72
1 JUDGE DALZELL: Last question, the same question I
2 asked Mr. Hansen. Senator Exon and Senator Coates give you
3 the pen to write child of CDA, do you give it back to them or
4 do you write something?
5 MR. ENNIS: Well, my first answer would be exactly
6 what Mr. Hansen answered, wait a decent interval, let the
7 marketplace work, especially since Congress made findings of
8 fact that it wanted to preserve a vibrant, free market in the
9 Internet, quote, "unfettered by Government regulation." Let
10 the market work for a while and see if you even need any
11 governmental intervention of this nature whatsoever.
12 But if I were pushed to try to come up with a
13 different law I think there are many things Congress could
14 have considered that would have narrowed the scope of the
15 law, in answer to Judge Sloviter's question, without even
16 thinking about the affirmative safe harbor defenses.
17 If Congress was truly concerned about commercial
18 pornography it could have written a much narrower law that
19 only criminalized the display to minors of truly sexually
20 explicit material.
21 JUDGE DALZELL: But those laws already exist.
22 MR. ENNIS: Well, for obscenity it does, but they
23 could have gone down one notch and tried that. They could
24 have made clear that speech with serious value is not
25 criminalized, they could have done that.
73
1 JUDGE DALZELL: So you disagree with what Mr. Hansen
2 said about the medium specific aspect here?
3 MR. ENNIS: Oh, no, no, no, not at all. The reason
4 that this very broad coalition of plaintiff groups is before
5 the Court today is precisely to emphasize the point that this
6 medium of communication truly is unlike any other that has
7 ever gone before it and that the appropriate First Amendment
8 standards of review that this Court must develop to govern
9 regulation of this new medium of communication have to take
10 those characteristics into consideration.
11 One of the principal characteristics is it is a
12 truly global medium, which Congress forgot about it. It is
13 not as if patently offensive speech that's posted abroad has
14 to come through a Customs Office checkpoint before it reaches
15 American homes where it can be physically screened by Customs
16 officers. Everything that's posted abroad is instantly
17 available in every home in America, this is a global
18 communications medium.
19 I can suggest a few other ways of narrowing the
20 statute that Congress could have considered. For example,
21 the Government has made much in its evidence about the so-
22 called teaser ads by commercial providers of sexually
23 explicit speech who have teaser ads and then charge with
24 credit cards to actually get into their Web sites.
25 If that was really Congress' concern, Congress could
74
1 have crafted a much different statute designed to regulate
2 advertising. Now, in my opinion there would be very, very
3 serious constitutional problems with regulation of
4 advertising on the Internet, but they would be of a different
5 order of magnitude because they would be judged under the
6 intermediate standard of review, not under strict scrutiny
7 because commercial speech is judged on an intermediate
8 standard of review. That's another narrower thing Congress
9 could have done.
10 There are many ways Congress could have narrowed
11 this law, the most important of which would be to take out
12 the word speech available to minors. That basically bans all
13 speech. Congress could have said, passed a law that said
14 before you engage in patently offensive speech on the
15 Internet you should give fair warning that your speech is
16 patently offensive. Then all these tagging defenses would
17 make some sense because you would be giving fair warning.
18 That's a different scheme that Congress, I think probably
19 would be an unconstitutional scheme, but it would certainly
20 be a narrower scheme than the one Congress adopted.
21 JUDGE SLOVITER: It doesn't help to suggest what you
22 think is unconstitutional now, does it?
23 (Laughter.)
24 MR. ENNIS: I was just trying to respond to Judge
25 Dalzell's question. If I were --
75
1 JUDGE SLOVITER: The answer may be -- I mean if you
2 really think it -- that there's nothing that Congress could
3 have done constitutionally.
4 JUDGE DALZELL: It's okay to say that, Mr. Ennis.
5 JUDGE SLOVITER: I mean I'm not sure that's right --
6 (Laughter.)
7 JUDGE SLOVITER: -- but I can't see how it helps us
8 to suggest statutes that you would later challenge.
9 JUDGE DALZELL: Because for sure you wouldn't want
10 to repeat what's happened with dial-a-porn, would you? That
11 is to say where you have ten years of litigation over the
12 subject?
13 MR. ENNIS: No, I think that's right and I think
14 that's precisely why Congress specifically authorized a
15 facial challenge in this case because there's allegedly
16 history makes clear that Congress did not want to wait for
17 ten years to find out whether they've got a valid law or not.
18 And if it's limited to an as-applied challenge, then
19 you're into years of litigation about the constitutional
20 scope of the law. That's why I think Congress invited a
21 broad facial challenge to this law.
22 Let me finish the point I said was the final point I
23 was going to make about this combination. The Government's
24 argument that the less drastic alternative of end-user
25 software coupled with the act would be more effective than
76
1 either alone. That argument is flatly inconsistent with
2 current law and would basically wipe out the less restrictive
3 alternative requirement of strict scrutiny because it is
4 almost always the case that a combination of the Government
5 prohibition and the less restrictive alternative together
6 would be more effective than either alone.
7 In the Bolger case, for example, the combination of
8 the Government prohibition on unsolicited mailings when
9 combined with the less drastic alternative of parental
10 supervision of incoming mails would surely be more effective
11 than either alone, but the Supreme Court struck down that
12 governmental prohibition and relied exclusively and solely on
13 parental supervision of what their children would receive in
14 the mail. That's the appropriate response for this case as
15 well.
16 Thank you.
17 JUDGE DALZELL: All right, we will -- go ahead.
18 JUDGE SLOVITER: We will recess for 15 minutes,
19 please.
20 (Court in recess; 11:07 to 11:28 o'clock a.m.)