Plaintiff's Additional Remarks
May 10, 1996
13 MR. HANSEN: Well, your Honor, I'm sorry, we weren't
14 able to restrain ourselves completely from any rebuttal
15 argument, but I think we've managed to make it quite -- both
16 Mr. Ennis and I will be quite brief.
17 JUDGE SLOVITER: How brief?
18 MR. HANSEN: I will take less than -- if I got no
19 questions I would use less than five minutes.
20 JUDGE DALZELL: Okay.
21 MR. HANSEN: If I get questions, I can't --
22 JUDGE SLOVITER: You don't want equality?
23 MR. HANSEN: Certainly I can't speak, nor can I
24 speak for Mr. Ennis as to how much time he's going to need.
25 I'd like to pick up on the discussion that the Court
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1 was having with Mr. Baron at the end in the nature of the
2 changes in technology that may or may not occur over the next
3 six months. And I'd like to talk about how even if
4 technology does in fact change over the next six months and
5 even if we are back at a -- at the final injunction stage six
6 months from now and PICs has come into place or PICs hasn't
7 come into place, I think there are still two things that are
8 enormously troubling about this statute and which I think the
9 Court must necessarily wrestle with.
10 The first is the nature of the speech that is
11 criminalized under this statute. And if we had any doubt at
12 all about the intent of Congress to reach valuable speech
13 under this act, all we have to do is look at the statute. At
14 three separate occasions in the statute Congress reached out
15 to say we intend the statute to apply to libraries and we
16 intend the statute to apply to institutions of higher
17 education.
18 Congress, I think, was making it unmistakably clear
19 that they intended to reach out and criminalize --
20 JUDGE SLOVITER: Is that in 223?
21 MR. HANSEN: It's at three separate occasions in the
22 statute, your Honor.
23 JUDGE SLOVITER: Yeah, but it's a big statute, do
24 you mean the two sections that --
25 MR. HANSEN: Yes.
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1 JUDGE SLOVITER: -- you are challenging?
2 MR. HANSEN: Yes, yes, it is in the sections we're
3 challenging. The first place it appears is in the 223(F) in
4 the definitional section. You know, 223(H) in the
5 definitional section where it talks about the term "library"
6 means library -- means --
7 (Laughter.
8 MR. HANSEN: -- means library is defined in another
9 statute. Earlier in -- and that's H. Earlier in F there is
10 a preemption clause which says "No state or local government
11 may impose liability for commercial activities or actions by
12 commercial entities, non-profit libraries or institutions of
13 higher education that are different. And then finally later
14 there's another definition section defining interactive
15 computer device which specifically also includes libraries
16 and institutions of higher education.
17 Now, in addition to that, the Government's
18 proposal--
19 JUDGE SLOVITER: Excuse me.
20 MR. HANSEN: Yes.
21 JUDGE SLOVITER: It says that but where does it-- I
22 just want to know for my own benefit because we finally got
23 it, you know, through the computer, I think. Because up
24 until now it's been a relatively new statute.
25 Where is the prior reference in those two sections
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1 to institutions of higher education and library?
2 MR. HANSEN: Well, the -- the term interactive
3 computer device is defined to include interactive computer
4 devices used by libraries and institutions of higher
5 education.
6 JUDGE SLOVITER: I see.
7 MR. HANSEN: So the prior -- the cross-reference--
8 JUDGE SLOVITER: That refers to A.
9 MR. HANSEN: That's -- you're correct.
10 JUDGE SLOVITER: That would then refer to Subsection
11 A where they use interactive computer things. D?
12 JUDGE DALZELL: D.
13 JUDGE SLOVITER: Okay.
14 MR. HANSEN: D, right, it refers to Subsection D,
15 that's right.
16 JUDGE SLOVITER: Go ahead.
17 MR. HANSEN: The second and final point I'd like to
18 make concerning the nature of the speech here is that the
19 Government's ultimate proposal is that technology will
20 develop to appoint where they think it will be possible for
21 speakers to label themselves as indecent speakers or not as
22 indecent speakers.
23 They think it will become possible at a time when
24 the Government can compel people to issue a label before they
25 speak describing their speech as indecent or not indecent.
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1 Even if that is to come to pass, the notion that the
2 Government can impose upon all of us, upon the millions of
3 people who use the Internet in the context of the Web, in the
4 context of the news groups and chat rooms, the requirement
5 that before we speak we label our speech as decent or
6 indecent, in our view, represents a serious constitutional
7 problem, one that is sufficient to justify this Court in
8 declaring this statute unconstitutional, even in the event
9 the technology comes about as the Government predicts.
10 Thank you, your Honors.
11 JUDGE DALZELL: Thank you, Mr. Hansen.
12 MR. ENNIS: I'd like to make three brief points,
13 your Honors. The first is, is that with respect to news
14 groups, chat rooms and lists or mail exploders, everyone
15 agrees, including the Government's expert, that there is no
16 technology available now, there is none in the pipeline,
17 there is not going to be any here in July that makes it
18 possible to speak in those forums by getting a credit card,
19 an adult ID number, anything like that. And I simply refer t
20 he Court to our proposed findings of fact, 862, 883, 884,
21 894, and 901 where that evidence is summarized.
22 Second, with respect to tagging, I think it's
23 important to recall that the Government admitted here tagging
24 is not a defense today because the browsers are not set to
25 read those signals today. But even if today all the browsers
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1 in the world were in place and set to read those tags, it's
2 still not a defense. At most, it's substantial evidence,
3 it's not a defense. It's not a truly safe harbor. So we're
4 not going to be in any different position in July from the
5 position we're in right now.
6 Third, I think it would be strange indeed for this
7 court to construe this statute to make tagging a defense
8 because, as Mr. Hansen pointed out, any requirement that
9 speakers self-label their own speech as a condition of
10 speaking would violate the doctrine against compelled speech
11 which was Meese v. King, Wooley v. Maynard, the Riley case.
12 Attaching a pejorative label to your own speech is something
13 the First Amendment forbids the Government to require you to
14 do.
15 And I think it's also not even necessary to reach
16 that difficult constitutional question because as the NTEU
17 case makes clear, you should never construe a statute in a
18 way that would simply create a new First Amendment problem
19 which requiring speaker self-tagging would do.
20 Furthermore, there's no reason to construe this
21 statute that way because there's no reason to believe
22 Congress had any intent whatsoever to require speaker self-
23 labeling or tagging.
24 In fact, if you look at the Communications Decency
25 Act, in the very next section of the same act passed by the
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1 same Congress on the same day, Congress specifically rejected
2 speaker labeling of indecent or sexual speech by broadcast
3 speakers, the medium that is the most amenable to
4 Governmental regulation, precisely because Congress had
5 serious concern whether they could constitutionally require
6 broadcast speakers to self-label their own speech.
7 It's incredible in that context to think this
8 Congress intended speaker self-labeling in the Internet
9 context.
10 Thank you very much.
11 (Discussion off the record.)
12 JUDGE SLOVITER: All right, thank you all very much.
13 We will close the -- adjourn the hearing and you will hear
14 from us. The press seems to think it knows when we will
15 decide this case, to my amazement. It makes that -- those
16 hypothetical, well, it makes that judgment without any
17 communication with us and you will hear. We know that there
18 are some motions pending, but you will hear from us on all
19 those matters in due course.
20 Thank you very much.
21 I want to thank counsel very much. I find that
22 having come to the District Court level for this type of --
23 counsel has been exceedingly cooperative, all counsel, and
24 very helpful throughout and I do thank you all.
25 And you can show this part of the transcript to your
197
1 superiors.
2 (Laughter.)
3 COUNSEL: Thank you, your Honor.
4 (Court adjourned at 3:05 o'clock p.m.)
5 * * *
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