From: m...@eff.org (Stanton McCandlish)
Subject: EFFector Online 09.07: CDA action: Web & court; EFF benefit concert
summary: 1) ALERT: Help Light up the Web with CDA decision links; 2)
Mike Godwin on the import of the CDA judges' questions; 3) EFF Benefit Concert
in Toronto, July 12-14
organization: Electronic Frontier Foundation
keywords: EFF,CDA,Communications Decency Act,Communications Decency Amendment,
free speech,freedom of speech,free expression,freedom of expression,
intellectual freedom,censorship,S.652,S652,S 652,S.652,ACLU v. Reno,Constitution,
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EFFector Online Volume 09 No. 07 Apr. 5 1996 edit...@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THIS ISSUE:
ACTION ALERT: Light up the Web with CDA Case Result Buttons
News - A decision in the court case is near
How to participate
How will this campaign work?
Press information on this event
Background: what is the CDA?
What the Final Arguments Tell Us About The Fate of the CDA
EFF/EFC Benefit Concert: Eden MusicFest, July 12-14 (Toronto)
Quote of the Day
What YOU Can Do
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
Subject: ACTION ALERT: Light up the Web with CDA Case Result Buttons
JOIN EFF, VTW, CDT & TENS OF THOUSANDS OF NET USERS IN SPREADING THE WORD
ABOUT THE FIRST RESULT OF THE ONLINE FREE SPEECH LAWSUIT
June 5, 1996
Redistribute (intact, please) only until June 28, 1996
Table of contents
News - A decision in the court case is near
How to participate
How will this campaign work?
Press information on this event
Background: what is the CDA?
NEWS - A DECISION IN THE COURT CASE IS NEAR
The fate of the Internet and the future of the First Amendment in the
information age hang in the balance. As early as this week, three federal
judges in Philadelphia are poised to issue a ruling in the law suit
challenging the Communications Decency Act (CDA), which restricts
constitutionally protected speech on the Internet.
Will the court rule that the CDA is unconstitutional? That the Internet is
a unique communications technology that deserves the same First Amendment
protections enjoyed by the print media? Or will the court side with Senator
Exon, conservative "pro-family" groups, and the Justice Department who have
argued that the government is the best judge of what material is
Regardless of the outcome, the decision will have a profound impact on the
future of the Internet as a medium for free expression, education, and
JOIN TENS OF THOUSANDS OF YOUR FELLOW NETIZENS IN ANNOUNCING THE DECISION
When the Communications Decency Act was signed into law by President
Clinton on February 8, 1996, the World Wide Web went black in protest.
When the decision in the historic legal challenge to the CDA is announced,
join tens of thousands of your fellow netizens in spreading the word on the
decision and its impact.
This campaign follows in the steps of the Turn the Web Black campaign,
which was a tremendous success. Believe it or not, many Internet users
had only superficial knowledge about the proposed law and the enormous
press coverage and online awareness afterwards mobilized large numbers
In addition to the online campaign, there are currently rallies planned for
New York, press conferences from the CIEC and the ACLU, and a net campaign
to raise awareness to the decision and the effects it will have on free
The result of the first CDA decision is an extremely important milestone in
the fight for free speech online. Will the net look more like print, or
more like Saturday morning television?
INSTRUCTIONS ON HOW TO PARTICIPATE:
In anticipation of the decision, you can help keep your fellow Netizens
informed on the latest news and participate in a dramatic demonstration
when the decision is announced.
1. Add the following link *TODAY* in a prominent location on your web site:
alt="Free speech court decision" align=top></a><br clear = all><br>
A decision is near in the fight to overturn the Communications Decency
Act. <br>Watch this image and follow the link for more information.
2. To let us know you have joined us, fill out the form at
with your URL. A list of participating will be displayed.
3. Attend the online press conference with lead CIEC (Citizens Internet
Empowerment Coalition) attorney Bruce Ennis on HotWired. More details
are available on the WWW page.
HOW WILL THIS CAMPAIGN WORK?
After you have added the link (above) to your page, an animated image
signifying that a decision in the case is expected soon will be
displayed on your site. By clicking on that image, visitors to your
page can jump to a site containing the latest news and information on
As soon as a decision is announced, the image will be changed
automatically (the update will happen at our server - you will not have to
do anything), and Netizens throughout the entire global Internet will
immediately be aware of the result (win or lose).
By clicking on the updated image, visitors to your page will be able
to obtain the text of the decision, analysis, and other relevant
Until the decision is announced, there will be information about upcoming
events and rallies on the VTW Free Speech page, http://www.vtw.org/speech/
PRESS INFORMATION ON THIS EVENT
For more information on this event, including press inquiries, please
Jonah Seiger, Policy Analyst, Center For Democracy and Technology (CDT)
Shabbir Safdar, Online Representative, Voters Telecommunications Watch (VTW)
BACKGROUND: WHAT IS THE CDA?
The Communications Decency Act was passed as part of the Telecommunications
Reform bill in February 1996. The law seeks to protect minors from
objectionable or sexually explicit material on the Internet by imposing
stiff criminal penalties on the "display" of "indecent" or "patently
offensive" material online.
Opponents to the new law argue that while well intentioned, the CDA fails
to account for the unique nature of the Internet, and that it will have a
far-reaching chilling effect on constitutionally protected speech online.
On a global, decentralized communications medium like the Internet, the
only effective and constitutional means of controlling access to
objectionable material is to rely on users and parents, not the government,
to decide what material is or is not appropriate.
Two lawsuits have been filed to challenge the constitutionality of the CDA
in a Philadelphia federal court. The cases have been consolidated and an
decision is expected in early June 1996.
The cases have been brought, respectively, by The Citizens Internet
Empowerment Coalition (CIEC), comprised of civil Liberties groups,
libraries, Internet Service Providers, Commercial Online Service Providers,
Newspaper, Magazine and Book Publishers, and over 45,000 individual
internet users, and a coalition of civil liberties groups, authors, and
others organized by the ACLU.
Detailed information on the legal challenges, as well as information about
the CDA, is available at the following web sites:
Legal Challenges To The CDA
* The ACLU - http://www.aclu.org/
* The Citizens Internet
Empowerment Coalition (CIEC) - http://www.cdt.org/ciec
Background Information On The CDA/Internet Censorship Issues
* American Civil Liberties Union (ACLU) - http://www.aclu.org
* Center for Democracy and Technology (CDT) - http://www.cdt.org
* Electronic Frontier Foundation (EFF) - http://www.eff.org
* Electronic Privacy Information Center (EPIC) - http://www.epic.org
* Voters Telecommunications Watch (VTW) - http://www.vtw.org
From: mnemo...@eff.org (Mike Godwin)
Subject: What the Final Arguments Tell Us About The Fate of the CDA
by Mike Godwin, EFF Staff Counsel
I was sitting there in the Philadelphia courtroom, typing quietly
away at my notes, when, suddenly, I had to look up, stop typing,
and just watch what was happening. It wasn't merely the
pointedness of the questions Judge Stewart Dalzell was asking
government attorney Tony Coppolino -- Dalzell had already
established himself that day as the most aggressive questioner of
the three-judge panel reviewing the constitutionality of the
Communications Decency Act.
No, it was the content of the questions. Holding a copy of the
_Philadelphia_Inquirer_ in his hand, and indicating an above-the-
fold, page-one photo of the battlefield execution of a soldier in,
I think, Bosnia, Judge Dalzell questioned Coppolino as to a
hypothetical "Newspaper Decency Act." Suppose that Congress is
worried about the dangers to children posed by violent newspaper
images, Dalzell said. And suppose that Congress, recognizing that
it couldn't constitutionally ban such images altogether, chose
instead to pass the "Newspaper Decency Act," which simply required
newspapers that want to print such photographs on page one to
print them *below the fold* (i.e. so that the such an image is
not visible to passersby as the paper sits on the newstand rack)?
Would such a law be constitutional?
And it was that question, and the exchange that followed it, that
convinced me, finally and completely, that the judges "got it"
about the constitutional problems with the CDA. At that moment I
was certain that the CDA would be struck down.
I have known intellectually about the value of what lawyers call
"oral argument" since I was a law student and started reading
accounts about Supreme Court cases. But I never really appreciated
its value as a crucible for legal theories until I attended the
final arguments, on May 10, of the Philadelphia cases challenging
the Communications Decency Act.
"Oral argument" is a point in a hearing or other court proceeding
where the lawyers state the issues and argue their legal points
"live" in front of the judge. When this is done at the conclusion
of the lawyers' presentation of a case, it's termed "final
argument." And if you had been there in the federal courthouse on
May 10, you'd have seen how important oral argument can be.
Now, once you know the kind of research and writing that goes into
a litigated case, you may wonder, as even some lawyers do, why
courts ever bother with oral argument, especially in the final-
argument phase. After all, that last phase is when all the
arguments, including legal citations, are laid out right there in
the opposing sides' briefs. What's the point of having the judge
(or judges, if there's a panel, as there is in each of the CDA
challenges) go through the process of quizzing the lawyers for
each side about their arguments? Shouldn't they just save
everybody time by going back into their chambers and reading the
The answer is, oral argument turns out to be the best way for
judges to test the legal theories that each side is advancing. By
putting the lawyers on the spot, by asking them tough questions
about real and hypothetical scenarios, by questioning them
directly on the steps of their reasoning, judges can test, very
efficiently, whose arguments hold up best, and whose arguments
don't hold up at all.
I had been dying to be there for the whole set of court dates, but
I live on the wrong coast. Still, the minute I realized I could
fit an appearance for the Philadelphia final argument into my
schedule, I booked a flight and a hotel room.
As a result, I stretched myself awake at 7 a.m. that Friday
morning (4 in the morning for me -- I was on San Francisco time),
dressed quickly, and joined the American Civil Liberties Union
lawyers in the lobby of the Holiday Inn, just walking distance
from the courthouse. I'm one of the "counsel of record" in this
case myself -- the Electronic Frontier Foundation is also a
plaintiff in the case -- and I had assisted ACLU's lead counsel,
Chris Hansen, in putting _ACLU,_et_al._v._Reno_ together. We'd
spent time on the phone together, and had sent a lot of e-mail to
each other. But this was only the second time I'd met Chris face-
to-face, and it would be the first time I'd get to see him in
action. I met Chris and another ACLU lawyer, Ann Beeson, in the
Our group got to the courthouse so early that the federal
marshals, who are responsible for keeping the peace, had not yet
set up that little electronic gate they use to check everyone for
firearms and other weapons. I shortly discovered that this was a
blessing -- I walked right in without fear of anyone's
confiscating or zapping my potentially lethal PowerBook. Danny
Weitzner (a director of the Center for Democracy and Technology,
which is co-sponsoring the companion lawsuit, _American_Library_
me that other attendees had had some trouble clearing their
computers with the feds. I guess that by this time the law-
enforcement guys figured the nerds and their toys were no threat.
Nor was I the only one tap-tapping away (but quietly and
respectfully -- we were in court!) when the final arguments began.
Chief Judge Dolores Sloviter instructed the attorneys that this
oral argument was "for our benefit rather than for yours," and she
warned them that "we will interrupt you with numerous questions."
Each attorney would have to make his arguments -- *and* answer
questions -- in a strictly limited period of time. Concluding her
opening remarks, Judge Sloviter, flanked by Judge Dalzell and
District Judge Ronald Buckwalter, announced that "We will hear
The attorneys for the two cases had divided up in advance the
burden of the making the final legal and constitutional arguments.
ACLU's Chris Hansen would be up at bat first, focusing on the
overbreadth and vagueness challenges to the statute, after which
the A.L.A.'s Bruce Ennis (himself a former ACLU attorney) would
focus on the least-restrictive means argument. Both attorneys
would also address the fundamental question of whether the federal
government even has the authority to regulate nonobscene, First-
Amendment-protected speech, in any medium other than broadcasting.
Hansen opened his remarks by noting that there were "two subjects
that are not in dispute in this case." The first, he said, is that
"this is a criminal statute"; the second is that "this is a
statute aimed at constitutionally protected speech." Hansen
underscored a basic legal fact about the constitutional tests of
both speech-restricting and criminal statutes: that if either kind
of statute is "vague" (you can't tell what is
prohibited/regulated) or "overbroad" (it has the effect of
"chilling" lawful conduct or speech), it's unconstitutional. The
terms of the CDA, Hansen said, are unclear as to what is
prohibited (neither the "indecent" or "patently offensive" terms
has ever been defined by Congress or the courts), so no one --
from big conferencing systems like CompuServe to newcomer Web
publishers like Time Warner and Paramount to individual Usenet and
e-mail users like you and me -- can be certain about what kinds of
speech will or won't land them in hot water. What's more, the
sheer scope of the legislation will cause lots of people to worry
about what they post to Usenet or other public digital forms -- it
will chill their expression of even constitutionally-protected content.
What adds to the uncertainty, Hansen said, is that the "defenses"
provided by the statute -- that is, the things you have to do to
avoid criminal liability -- are defined in terms of whatever
filtering or screening technologies happen to be available at any
given moment. Subsection (e) of the CDA, he pointed out,
conditions a defense on the defendant's use of "reasonable and
effective measures under current technology." As a result, Hansen
said, the defenses will change every time the "current technology"
changes. What worked last year won't necessarily work next year,
which makes it hard to know what kind of planning you have to do.
Hansen then moved into the more basic constitutional question.
"What this highlights, to me anyway, is the nature of the medium
we're talking about." In response to questioning from the bench,
Hansen distinguished computer communications from broadcasting,
which the Supreme Court held to be more regulable than print or
other, older media -- partly because broadcasting frequencies are
"scarce," and partly because, in the words of Justice John Paul
Stevens, broadcasting is "pervasive" and "uniquely accessible to
children, even those too young to read."
If the judges are going to insist that the Net is like any prior
medium, he said, it's most like print. "There are a limited number
of speakers in the context of television," Hansen argued, while
the Net is arguably "the most democratic means of speech yet
devised." Online communications, he said, potentially "makes all
of us as powerful as CBS News." And since every individual is a
potential publisher on the Internet, the CDA is "calling upon
every single American to define 'indecency'" -- a term on whose
definition no majority of the Supreme Court itself has never been
able to agree.
To impose such a burden on everyday citizens, on the pain of
criminal penalties, said Hansen, is "particularly onerous." After
all, he reminded the judges, "we're not talking about obscene
speech." Nor, he added, is anyone defending child pornography --
the other major category of illegal expression. Instead, the
challenge to the CDA is based on constitutionally protected speech
-- speech that may not violate community standards, or that has
serious social value. Such speech may not even appeal to what the
Supreme Court has called "the prurient interest" -- said Hansen:
"It's hard to say how anyone would be turned on by the George
Carlin monologue" that was at issue in Federal Communications
Commission v. Pacifica, the 1978 case that established the
government's authority to regulate so-called "indecency" in
Hansen's presentation was frequently interrupted by -- in fact,
it's fairer to say "driven by" -- questions from the bench,
primarily from Judges Dalzell and Sloviter. And when Hansen's time
was up, Bruce Ennis, speaking for the plaintiffs in the A.L.A.
lawsuit, got a similar grilling. "I'm going to speak primarily
about the subsection (e) safe-harbor defenses," Ennis told the
"Subsection (d), standing alone," he said, "would constitute a
flat ban on speech that is constitutionally protected for adults."
The infamous subsection (d) of the Communications Decency Act is
the one that prohibits any "display in a manner available to a
person under 18 years of age" of so-called "patently offensive"
material. In effect, this part of the statute turns you into a
felon if a 17-year-old college freshman obtains information from
your Web site that would be perfectly legal if he obtained it from
the Barnes & Noble bookstore at a shopping mall. No exceptions for
parents, or teachers. No discussion of whether the material is
educational or not. If you knowingly publish perfectly legal
material from your computer or Internet node, you can end up doing
two years in Club Fed.
Ennis stressed the fact that the CDA creates a criminal sanction
for people engaging in certain kinds of constitutionally protected
speech on the Net. Worse, he said, while in every other medium,
speakers have a sure and safe way of complying with prohibitions,
there's no such guarantee under the Communications Decency Act.
Asked Judge Sloviter: To whom *is* the safe-harbor defense
available? Ennis responded: While a credit-card-approval
requirement might be available under the dial-a-porn law, which
only regulates *commercial* speakers, there's no similar mechanism
available for the noncommercial speakers who make up the majority
of users of the Net.
Judge Dalzell jumped in. Even for *commercial* speakers and
publishers, using those defenses "are, at most, [merely] evidence
of compliance" with the statute, aren't they? They're not
guarantees that the speaker/publisher won't be prosecuted and
convicted anyway, are they? Ennis agreed. At most, they're merely
"substantial evidence," he said, citing a letter to that effect
from one of the DOJ's assistant attorneys general. Dalzell then
jumped in again, with a question about the leading dial-a-porn case
(Sable Communications v. FCC, in which the Supreme Court held, in 1
989, that a flat ban on "indecent" commercial phone calls was
unconstitutional). Asked Dalzell: Didn't Sable say the defenses
were what would make a regulation of indecency -- as distinct from
a ban -- constitutional?
Ennis responded by noting what makes the Internet different from
dial-a-porn services: "The vast majority of speakers on the
internet do not charge for access to their speech." Therefore,
said Ennis, the statute provides a defense, if any, only to "that
small subset of speakers" who can afford to use the credit-card
companies to screen out minors. In other words, asked Dalzell, the
people who could comply most easily are the commercial
pornographers? Ennis agreed that this is so. "Credit card
companies simply will not verify credit cards for noncommercial
speakers," he said. Referring to testimony from the A.L.A.'s
impressive array of technical witnesses, he added that "the
evidence is quite clear that ... there is no technological way to
screen for age on the Internet."
Judge Buckwalter also had a question about the defenses: With
regard to the affirmative defenses, he asked, isn't this statute
like other criminal statutes, which place the burden of proof of
guilt on the government? No, said Ennis, the statute is not
structured that way. Once the government has established its basic
case (what lawyers call a "prima facie" case) that the defendant
has knowingly made "patently offensive" material available, the
burden shifts to the *defendant* to prove that the so-called
Having been peppered by questions from the bench, Ennis saw that
he was running out of time, and commented, "We haven't spent as
much time talking about newsgroups, chat rooms, and mail
exploders" where the sort of screening prescribed by the CDA is
even more difficult to implement than it is on the Web. "Those are
huge areas of the Internet," he said.
Ennis also noted that that the government's argument seemed to be
that every user on the net would be free from criminal liability
if they "tag" or "self-label" or "register" their speech as
potentially inappropriate for minors.
Dalzell responded with some sarcasm: "Do you take that point
seriously in the light of what happened to CompuServe?" The
venerable online service had been the subject of headlines in the
days just prior to the final argument -- the Department of Justice
had announced that, in response to complaints from the American
Family Association (Donald Wildmon's organization), CompuServe's
content was being reviewed for possible violations of the CDA. Are
the government's people, asked Dalzell, really serious about these
defenses? After all, the material in question was, in fact, tagged
and in a separate directory, and screened by parental-control
device. Yet this complaint was *still* referred to the FBI. And
CompuServe was made to look in the national headlines as if it was
a scofflaw porn vendor. So what use are the defenses?
Ennis agreed that they didn't seem to be of much use. He also
noted that even if the commercial online services tag or register
their content, tagging and registering will not work unless the
parents are using software filters of some sort. But if the
parents are all using filters, which may be based on a neutral
content-classification scheme such as PICS, there's no need for
tagging and filtering.
At this point, Judge Sloviter addressed another issue: What about
the risk of a child's inadvertently coming across the
According to the available evidence, Ennis said, "the odds are
slim" that a child would come across this material by accident. In
interactive computer services, unlike broadcast or radio, the user
chooses where he wants to go.
As the clock ran down, Sloviter had even more questions: Could
Congress trump parent wishes? After all, she said, the CDA's
conference-committee report says it's the empowerment of parents
that they're aiming for. And isn't there evidence that, even if
the CDA were found to be somewhat effective, some substantial
number of children could encounter the stuff outside the home"?
Dalzell chimed in: "Internet cafes? Libraries?"
And, asked Sloviter, what about the difficulties of even smart
parents in using filtering and PICs?
Ennis attempted valiantly, if not wholly successfully, to answer
all the questions in his remaining time, noting in particular that
it's not difficult for parents to use this stuff, but if it is,
that's as much a problem for the government's arguments as it is
for the plaintiffs'.
As the clock ran out, Ennis was asked whether the statute could be
rewritten by Congress and made constitutional. He allowed as how
it could be improved -- especially by striking out the "display"
offense altogether -- but the message was clear that he didn't
think the statute could ever be made wholly constitutional. Hansen
had given a similar answer to the same question earlier.
In the short break between Ennis's presentation and the
government's, David Sobel of the Electronic Privacy Information
Center looked over at me and said, with a little worry in his
voice, that the questioning from the bench seemed a bit tougher
today than it had in earlier phases of the case. "I think it's a
good sign," I told him. "They're asking tough questions, but
they're asking *very intelligent* questions."
Then DOJ attorney Anthony Coppolino got up to give the
government's side of the case. And if the questioning seemed
lively in the first part of the oral argument, it was so fierce,
so sceptical, and so pointed during the government's argument that
it fractured the government's presentation of the case. It wasn't
that the judges' questions were any tougher for the government
than they had been for the plaintiffs. Nor was it that the
government attorneys were incompetent. The problem for the
government was basically in their case itself -- they had to
defend a statute that's not only of questionable
constitutionality, but also incoherently drafted. (One section of
the CDA, for example, seems explicitly to exclude the very
"interactive computer services" that the drafters of the statute
aimed to include, and that companies like CompuServe operate.) And
they were forced to rely heavily on statements about the statute
made in the Congressional conference-committee report about it --
a report whose statements about the relevant legal and
constitutional principles is itself inconsistent and misleading.
Coppolino first informed the judges that he and his associate,
Jason Baron would be dividing the issues up much the way Hansen
and Ennis had, although "I do expect I will cross over a bit."
Coppolino would deal with the overbreadth and indecency
challenges, and the basic constitutional issue of whether the
government can exercise this kind of authority, while the defenses
for the noncommercial providers will be dealt with by Baron.
Most of the questioning of Coppolino and Baron paralleled the
questions asked of Hansen and Ennis. Coppolino argued that the
terms "indecent" and "patently offensive as measured by
contemporary community standards, sexual or excretory activities
or organs" are not vague (they've been used by the FCC in a number
of cases, and the cases tell us what the terms mean), and that the
two terms in fact mean the same thing. In itself this is a
reasonable argument -- the term "indecent" has been defined by the
FCC, if not by Congress or the Supreme Court, to mean "patently
Judge Dalzell had a problem with this argument, though: "Doesn't
the conference report say that these terms are taken from Pacifica
and Sable?" The problem for the government was that in neither
Pacifica nor Sable had the Supreme Court adopted the "patently
offensive" definition of indecency.
Judge Sloviter then asked if the government wanted the court "to
write into" subsection (a) the "patently offensive" language?
"That's not hard," said Coppolino. The "patently offensive"
definition does have some grounding in FCC caselaw.
But what about the requirement that a criminal statute give due
notice to citizens as to what is prohibited? asked Sloviter.
Answered Coppolino: the caselaw gives notice as to the meaning of
the terms. (The legal fiction here is that everyday citizens know
FCC caselaw, but the fact that this assumption defies common sense
doesn't in itself hurt Coppolino's argument, since, as we all
know, ignorance of the law is no excuse.)
Sloviter then asked about the conference-committee report's claim
that the statute's does not penalize content with social worth:
"You want us to read the statute to have a built-in exception for
words of value?" In doing so, she was highlighting a problem with
the conference-committee report's claims about the CDA -- although
it states that "indecent" material does not include material of
artistic, scientific, or political value, the FCC has explicitly
stated that such value does not prove that material is not
"indecent" for broadcast purposes.
Hence Coppolino's response: "I don't agree with that
Furthermore, he said, "We have not asked that the term be
narrowed to pornography." (The conference report says that the
statute addresses only pornography.) Instead, he said, "We want to
use it as it has been applied by the courts." In short, Coppolino
planned to rely more on the FCC caselaw about "indecency" than on
the conference report. "Our point," he said, "is that it's not
clearly anything about sex or anything with an expletive." He
added, however, that indecency "can include pornography. It can
also including shocking or vulgar textual discussions."
Judge Dalzell questioned whether the FCC's use of the term in
broadcasting tell us anything about its meaning in the context of
Internet communications. Isn't there some risk that "indecent" or
"patently offensive" just mean what a U.S. Attorney somewhere
decides it means?
Coppolino responded: We cannot provide assurance that a U.S. Atty
won't take an absurd case. And the tough cases on the margins
should be left for an "as-applied challenge." (There are two ways
a statute can be unconstitutional. It can be "facially"
unconstitutional -- that is, its terms on their face violate
constitutional guarantees. Or it can be unconstitutional as
applied by the government, in which case the judiciary can
prohibit such applications of the law without striking down the
law altogether.) Coppolino was telling the judges that we could
rely on the court system to construe the statute so as not to be
unconstitutional. The problem with his argument here was that the
statute's very existence has already done reputational damage to
Sloviter asked about literary works that might be offensive yet
still had literary or other value. She asked about Tony Kushner's
prize-winning play about homosexuality and AIDS, _Angels_in__America_
-- would that be "indecent" on the Internet? She also asked about
Henry Miller's _Tropic_of_Cancer_.
"Unlike the plaintiffs," Coppolino said, "we don't believe that
'indecency' necessarily includes serious value or necessarily
excludes material with prurient appeal." (He misstated plaintiff's
argument here -- Hansen had simply noted that "prurient" appeal is
not necessary for something to be found "indecent." This is not
the same as saying that nothing "prurient" is indecent.)
Asked Sloviter: Under the First Amendment and the Due Process
requirement of notification, what does the statute tell citizens
about what is forbidden? Coppolino replied: "I can't give you a
categorical answer about serious value."
Responded Sloviter: If you want the court to construe the statute
as not prohibiting works of serious value,."[y]ou're asking us to
be the activist judges that some members of Congress excoriate,
and to put words into the statute that are not there."
Coppolino argued that indecency and "patently offensive" will be
judged "in the local community" where the communication is at
issue, much the way obscenity is. (In doing so, he departed from
the FCC caselaw, which says that "community" for the purposes of
defining indecency is a national standard -- it doesn't have the
same meaning it does in obscenity law, which is grounded in local
"Isn't that a problem in communications that are available all
over the United States?" asked Judge Sloviter. The only
disagreement would be at in marginal cases, asserted Coppolino,
apparently arguing that there is already a national consensus as
to what is indecent..
Judge Dalzell then asked about a web site that carried Robert
Mapplethorpe photographs. Coppolino admitted that "there a few
Judge Sloviter shot back: There are "lots of hard cases" the court
could ask about. "But we don't have all day."
Responding to a question about what the CDA added to existing
provisions in the federal criminal and communications codes,
Coppolino attempted to address the issue of overbreadth.There is
only "a very narrow category of speech" that is not obscene but is
indecent, he asserted. This statute is a solution that aims at
effectively protecting minors from this type of speech.
At this point, Coppolino seemed to be saying that "indecency"
simply means "obscene for minors" or "harmful to minors." Judge
Dalzell had problems with this: "How can we graft a harmful to
minors statute when Congress specifically rejected it?" he asked,
referring to alternative language that was proposed by Congressman
Rick White during the conference committee, but which was
Dalzell also distinguished prior indecency cases from this one.
Sable Communications, he said, was about commercial dial-a-porn
vendors -- in that case, the very subject matter was porn.
Imposing burdens upon that class of speakers is comparatively easy
to justify constitutionally. But since the Net is available,
potentially, to everyone: Isn't it an awful burden to make everyone
go to First Amendment lawyers to know what's legal?
Furthermore, asked Dalzell, isn't it true that if the issue were
merely pornography, not one of the plaintiffs in the ACLU or ALA
cases would be reachable under a statute that aimed purely at
Coppolino seemed to agree. He then returned to his argument about
whether it's appropriate for the plaintiffs to challenge the
statute on its face. Judge Dalzell would have none of this --
plaintiffs might simply be able to prove "substantial overbreadth"
of the statute he suggested. Dalzell added that the trial has seen
a lot of evidence that there's a broad class of material available
on the Net that is not porn but that nonetheless can be penalized.
Coppolino stated further that courts and citizens can be guided in
understanding indecency by looking at what the FCC has identified
as indecent in the broadcasting arena. He referred again to the
committee report language, which says that "indecent" is defined
"in context" -- which raised two problems for the government.
First, it is not clear how courts (or anyone else) will interpret
the "in context" language. Second, it's a problem to have to cite
the committee report to support your case in one part of your
argument while having to disavow its statements in other parts of
Dalzell questioned Coppolino about the Pacifica/George Carlin
case: "tremendous weight," he said, was given in the Pacifica case
to "the surprise element" inherent in radio programming. Is there
anything like that degree of "surprise" on the Net, where users
are making choices about what to see and read?
Coppolino argued that the Net was like the radio broadcasting in
Pacifica: "Clearly you've got to compare it [the Net] to
broadcast," he said. It's "pervasive" because it can be received
in the home. He noted that when it comes to radio and TV, the
Supreme Court has established and consistently upheld the "less
tolerant standard of broadcasting."
And that's when Dalzell hit him with the artfully crafted
hypothetical about the "Newspaper Decency Act" Would such a
Newspaper Decency Act, which banned violence above the fold, be
At first Coppolino misunderstood the question -- he took it be a
general question about the meaning of "indecency." In reality,
Dalzell was asking about general federal authority to regulate
nonobscene content that might be harmful. The Supreme Court,
despite the attempts by the government and others to misread the
relevant cases, has never approved of such general content-control
authority. Prudently, perhaps, Coppolino never answered this
But to me, sitting in the front row, it didn't matter what
Coppolino's answer was. Dalzell's question, and Sloviter's
followup questions signaled that they fully understood what was at
stake in the CDA cases: namely, whether the Net would partake of
the same freedoms that traditional media like newspapers have, or
else be subjected to a strict regulatory regime of the sort that
has turned broadcasting into relatively bland and uninteresting
When Coppolino did understand the question (to his credit, it
didn't take him long), he said that that the Net is more like
broadcasting because it "comes into the home." Responded Dalzell:
The _Inquirer_ comes into my home.
Coppolino: A child can't go buy _Playboy_.
Sloviter: But parents can subscribe -- _Playboy_ does, in fact, come
into many people's homes.
Coppolino attempted to recover. The issue, he said, is links to
sexually explicit sites on the Web. What about the risks of
inadvertent exposure? he asked.
That gave Sloviter an opportunity to take over the questioning.
Suppose there is minimal risk of accidental exposure -- is there a
compelling government interest (such an interest is
constitutionally required in legislation like the CDA) if there's
no inadvertence or surprise? And what if a 14-year-old child
wanted to see the material and the parents don't care? In her
questions, Sloviter was raising the issue of how the CDA would
affect the availability of "indecent" or "patently offensive"
material if parents approved of their minor child accessing it. The
point of her questions was that the CDA would have the effect of
*decreasing* the availability of that material. So the
government's claim that the CDA somehow "empowers parents" is
Coppolino returned to his theme of pervasiveness --the Net is
still closer to broadcasting than to print, he asserted, and so it
therefore merits the kind of close control that the federal
government already applies to broadcasting. Sloviter then asked
whether Henry Miller's classic novel, _Tropic_of_Cancer_, would be
indecent. Coppolino responded: "This isn't about _Catcher_in_the_Rye_."
Sloviter then commented with some amusement that _Tropic_ is a very
different sort of book than is _Catcher_.
Sloviter's final question sank any credibility that the conference
report might have when it came to interpreting the statute. What
about the committee's claim that there is an "intent to offend"
element to the crime? she asked.
Responded Coppolino: "That would be a lot to read into the
statute." In short, he had to bail on one of his own authorities.
The questioning of Tony Coppolino was so devastating to the
government's case that it took away the breath of most of the
onlookers in the courtroom. The plaintiffs had undergone tough
questioning, but the government's case seemed bullet-ridden after
Coppolino's turn at bat. DOJ attorney Jason Baron tried to recover
by claiming that the defenses built into the statute rended the
CDA constitutional, but Judge Dalzell -- seemingly personally
offended by what had happened to CompuServe in the week -- was
nothing if not sceptical. "What more could CompuServe have done
[to protect children] than what it did?" Dalzell asked, after
noting that the adult material in question had already been
rendered inaccessible to minors through a number of mechanisms.
Said Baron: "I don't think that's a very good example." Visibly
angry, Dalzell responded: "Could you answer my question?"
Baron attempted to argue that the Department of Justice may really
have been concerned about obscene rather than indecent material,
but he was forced to rely on a letter written after the fact. The
judges seemed to find his argument unconvincing. Said Baron: "The
fact is, as we stated in page 632 of our post-hearing brief ...
The answer to your hypothetical would be, I would expect, that
there would be an affirmative defense... under the available
The problem here was that the government was already on the record
as saying that use of current technology to screen out nonobscene
but "indecent" material from minors would, as most, count only as
evidence of a defense, and not establish a defense in and of
Judge Buckwalter had many questions for Baron -- which seemed
significant, since he had been relatively quiet for much of the
earlier questioning. But Buckwalter seemed to be troubled that
there was "no effective way" for a speaker on the Internet to
guarantee being able to avoid liability.
Argued Baron: "The key to the CDA is the burden on the content
provider to do something rather than nothing."
Dalzell quickly slamdunked that comment: "But CompuServe *did*
something." (And yet CompuServe still had to face an
investigation/review from the FBI.)
Dalzell later read a May 3 letter from the American Reporter case
assistant AG: "Under present technology, it is the position of the
department, ... such efforts would constitute substantial evidence
... under the circumstances."
Further, Dalzell said credit-card identification of minors is a
non-starter -- it would unfairly burden individuals and non-profit
groups by requiring them to spend money on the credit services
that noncommercial Net publishers typically don't have.
There was a some discussion of one plaintiff's insistence that his
material needs to be "indecent" in order to interest minors in AIDS
education and safe-sex information. Baron responded by saying that if
such people don't want to engage in self-rating, "the alternative
would be that PICS would block that site.
Dalzell: "But that's the parents' decision, not the government's
decision, wouldn't you admit?"
Baron was at a loss to come up with a good answer to this one.
Judge Sloviter asked about a web site called "Bianca's Smut
Shack": "How would you block it for Judge Dalzell's ten-year-old,
but make it available to Judge Dalzell if he wants to see it?"
Baron seemed to fumble his answer -- perhaps because there is no
Dalzell commented, with some heat: You ridiculed the witness who
said that all that has to happen is that somebody finds me
offensive and complains to the Department of Justice. Isn't that
just exactly what happened with CompuServe?
Although there were a few more questions, Baron's argument was
effectively over at that point.
In the rebuttal phase, Hansen and Ennis, sensing the possibility
of a clear victory, strove to give the court the strongest,
broadest arguments for striking down the statute. Said Hansen:
Even if filtering technology is constantly improving, "there are
two things that are enormously troubling". First, he said, the
nature of the speech being criminalized by the CDA is valuable
speech, and the statute even applies to libraries -- at three
separate points, the statute refers to libraries and colleges. The
second is that required self-labelling is "compelled speech,"
which is also barred by the Constitution.
Ennis summarized his case with "three brief points":
1) Everyone agrees that, regardless of what is available for the
Web, there is no technology now, and none in the pipeline, that
would screen Usenet, mailing lists, and chat rooms.
2) With regard to whether "tagging" content is a defense for
providers: ."I think it's important to recall that the government
admitted that tagging is not a defense today." At most it's
"substantial evidence." even if it's all in place.
3) Attaching a compelled label to your own speech is something
the First Amendment bars government from forcing upon you. A court
should never construe a statute in a way that would create a new
First Amendment problem, Ennis concluded. And Congress had no
intention of doing so. Congress specifically rejected compelled
labelling of broadcast when it mandated the so-called V-chip, which
is intented to enable parents to filter out violent content on TV.
Then Ennis sat down, and the final argument was over.
And I sat there, numb with the sense that we had won, that the
judges had understood the issues at stake, that the government's
defense of the CDA had been destroyed. Now, it's true that many
lawyers and law professors will tell you that you can't predict
the outcome of a case from an oral argument. But it was hard to
sit there in that windowless Philadelphia courtroom and not be
morally certain that, on one or more grounds, the singularly
offensive and unconstitutional Communications Decency Act would be
It was a good to day to be a lawyer. And a good day to renew one's
faith in the law.
* EFF Benefit Concert, Eden MusicFest, July 12-14 (Toronto)
Eden MusicFest '96
Eden MusicFest, A 3 day Modern Rock Festival and Exposition, has been
confirmed and will take place July 12-14 at Mosport Park. The 400-acre
site is located 45 minutes east of Toronto and can accomodate a
projected attendance in excess of 60,000.
Eden Interfest will pioneer the use of "Cyber Sales," whereby ticket
sales will be initially offered over the Internet, at a discount. Tickets
are available NOW.
A portion of revenues from ticket sales from the concert will benefit the
Electronic Frontier Foundation (EFF) and their Canadian counterpart,
Electronic Frontier Canada. The organizations have been chosen as
beneficiaries for their valuable contributions to civil liberties online
and their dedication to free speech and the reduction of censorship on the
The event will include a state-of-the-art "Internet Expo" featuring
exhibitors with high visibility on the World Wide Web. The festival will
also include weekend camping and a global village with arts and crafts,
a variety of vendors and merchandisers, information providers, and more.
Artists who'll be performing include:
The Tragically Hip, Bush, The Cure, Live, Love and Rockets, Everclear,
Spacehog, The Watchmen, Goo Goo Dolls, Tracy Bonham, Spirit of the
West, Seven Mary Three, Spin Doctors, Cibo Matto, and more!
More major bands will be confirmed soon.
Please attend, have a great time, and help EFF and EFC protect your civil
For full details, please see the event web site at:
This schedule lists EFF events, and those we feel might be of interest to
our members. EFF events (those sponsored by us or featuring an EFF speaker)
are marked with a "*" instead of a "-" after the date. Simlarly, government
events (such as deadlines for comments on reports or testimony submission,
or conferences at which government representatives are speaking) are marked
with "!" in place of the "-" ("!?" means a govt. speaker may appear, but
we don't know for certain yet.) And likewise, "+" in place of "-"
indicates a non-USA event. If it's a foreign EFF event with govt. people,
it'll be "*!+" instead of "-". You get the idea.
The latest version of the full EFF calendar is available from:
ftp: ftp.eff.org, /pub/EFF/calendar.eff
gopher: gopher.eff.org, 1/EFF, calendar.eff
See also our new Now-Up-to-Date HTML calendar at:
8 - Connected Classroom Conference; using the Internet in the
classroom, sponsored by National Education and Technology Alliance;
Hunt Valley Marriott Inn, Baltimore, MD.
Contact: +1 800 638 1639
Fax: +1 717 393 5752
9 + 5CYBERCONF: Fifth International Conference on Cyberspace;
Madrid, Spain. Hosted by "Fundacion Arte y Technologia de
Telefonica. Deadline for registration is May 1, 1996.
10 - Communications Law Institute, a continuing and distance
education service of the College of Communications and the
Pennsylvania Center for the First Amendment. The conference will
feature scholars, First Amendment experts and professional
journalists examining the effect of new communication technologies
on copyright, government access and libel. The Penn State Scanticon
Conference Center Hotel. To register, call 1-800-778-8632 or
send Email to conferencei...@cde.psu and include all pertinent
Contact: Robert D. Richards, +1 814 863 1900
Fax: +1 814 863 8044
13 - National Educational Computing Conference; Minneapolis
Convention Center, Minneapolis, MN.
Contact: +1 612 638 8764
Fax: +1 612 638 8769
June 15 - Open discussion of the lack of computer industry philanthropy.
$10 dollar donation includes dinner and drinks. ($5-children);
4pm - midnight, Fred and Sylvia's CyberSalon West, 630 San
Miguel Way, Berkeley, CA.
Contact: +1 510 526 5555
20 - Society and the Future of Computing; Snowbird, UT.
18 - Practicing Law Institute's 16th Annual Institute on Computer
Law: Understanding the Business and Legal Aspects of the Internet;
San Francisco, CA
Contact: +1 800 477 0300
18 * Venture Market Europe - presentation and discussion of private
technology company CEOs' international business plans and ideas;
London, England. ph: 415/865-2277 x210, fax: 415/865-0453
22 - World Conference on Educational Multimedia and Hypermedia,
ED-MEDIA 96; Boston, MA. Submission deadline: Oct. 20, 1995.
Contact: +1 804 973 3987
Fax: +1 804 978 7449
22 - ISTAS 96, International Symposium on Technology and Society;
Princeton Univeristy, Princeton, NJ. Abstract submission
deadline: Dec. 15, 1995.
Fax: +1 609 258 1985
22 - "Personal Information - Security, Engineering and Ethics,"
sponsored by the Britsish Medical Association; Isaac Newton
Institute, Cambridge, MA. Deadline for submissions: May 10.
Contact: Dr. Ross Anderson, Isaac Newton Institute, 20 Clarkson
Road, Cambridge CB3 0EH, England
26 + Australasian Conference on Information Security and Privacy;
New South Wales, Australia.
28 + INET 96, The 6th Annual Conference of the Internet Society: "The
Internet: Transforming Our Society Now"; Montreal Canada. Deadline
for abstracts: Jan. 15.
Contact: Carol Gray, International Secretariat
12020 Sunrise Valley Drive, Suite 210
Reston, VA 22091
Voice: +1 703 648 9888
Fax: +1 703 648 9887
28 - MIT seminar, "Converging Networks: Business and the
Telecommunications Act of 1996."
Subject: Quote of the Day
"Conventionality is not morality. Self-righteousness is not religion. To
attack the first is not to assail the last."
- Charlotte Bronte
Find yourself wondering if your privacy and freedom of speech are safe
when bills to censor the Internet are swimming about in a sea of of
surveillance legislation and anti-terrorism hysteria? Worried that in
the rush to make us secure from ourselves that our government
representatives may deprive us of our essential civil liberties?
Concerned that legislative efforts nominally to "protect children" will
actually censor all communications down to only content suitable for
the playground? Alarmed by commercial and religious organizations abusing
the judicial and legislative processes to stifle satire, dissent and
http://www.eff.org/EFFdocs/join_eff.html (or send any message to i...@eff.org).
Even if you don't live in the U.S., the anti-Internet hysteria will soon
be visiting a legislative body near you. If it hasn't already.
Subject: What YOU Can Do
* The Communications Decency Act & Other Censorship Legislation
The Communications Decency Act and similar legislation pose serious
threats to freedom of expression online, and to the livelihoods of system
operators. The legislation also undermines several crucial privacy
Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel. Everyone should write to their own
Representatives and Senators, letting them know that such abuses of
public trust will not be tolerated, that legislators who vote against
your free speech rights will be voted against by you in the next elections.
Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html
PARTICIPATE IN BLUE RIBBON ACTIVISM EFFORTS:
Support the EFF Cyberspace Legal Defense Fund:
For more information on what you can do to help stop this and other
dangerous legislation, see:
If you do not have full internet access (e.g. WWW), send your request
for information to a...@eff.org.
IMPORTANT! KEEP AN EYE ON YOUR LOCAL LEGISLATURE. All kinds of wacky
censorious legislation is turning up at the US state and non-US
national levels. Don't let it sneak by you - or by the online activism
community. Without locals on the look out, it's very difficult for the
Net civil liberties community to keep track of what's happening locally
as well as globally.
* New Crypto-Privacy Legislation
Urge your Represenatitives to support the Pro-CODE crypto export bill
(and to fix the few remaining bugs in it).
For years US export controls on encryption have hampered the development
of secure communications online. This technology is vital for online
commerce, for national security, and for YOUR electronic privacy.
The new Pro-CODE legislation will go a long way to rectifying the situation.
Join in the Golden Key Campaign - see http://www.eff.org/goldkey.html
PARTICIPATE IN GOLDEN KEY ACTIVISM EFFORTS:
Support the EFF Cyberspace Legal Defense Fund:
for more info.
* Digital Telephony/Comms. Assistance to Law Enforcement Act
The FBI has been seeking both funding for the DT/CALEA wiretapping
provisions, and preparing to require that staggering numbers of citizens be
To oppose the funding, write to your own Senators and Representatives
urging them to vote against any appropriations for wiretapping.
We are aware of no major action on this threat at present, but keep your
eyes peeled. It will be back.
See http://www.eff.org/pub/Privacy/Surveillance/ for more info.
* Anti-Terrorism Bills
Several bills threatening your privacy and free speech have been introduced
recently. One passed, but none of the rest of them are close to passage at
this very moment - however, this status may change. Urge your
Congresspersons to oppose these unconstitutional and Big-Brotherish
bills, which threaten freedom of association, free press, free speech,
and privacy. One such bill passed a few weeks ago, stripped of some of the
more onerous provisions. It could have been worse, and could yet still
Keep up the pressure. Write to your legislators: No
secret trials and deportations, no expansion of wiretapping scope or
authority, no national or "smart-card" ID systems!
For more information on some of this legislation, see
* The Anti-Electronic Racketeering Act
This bill is unlikely to pass in any form, being very poorly drafted, and
without much support. However, the CDA is just as bad and passed with
flying colors [the jolly roger?] in Congress. It's better to be safe
than sorry. If you have a few moments to spare, writing to, faxing, or
calling your Congresspersons to urge opposition to this bill is a good
* Medical Privacy Legislation
Several bills relating to medical privacy issues are floating in Congress
right now. Urge your legislators to support only proposals that *truly*
enhance the medical privacy of citizens.
More information on this legislation will be available at
http://www.eff.org/pub/Privacy/Medical/ soon. Bug m...@eff.org to make
it appear there faster. :)
* Child Privacy Legislation
A new bill to protect children from unethical marketing practices (e.g.
tricking kids into revealing personal information by offering prizes or
games) has been introduced. EFF and other civil liberties organizations
like, and dislike, various points in this bill. The legislators
sponsoring the bill appear interested in resolving the problems in the
statutory language they have proposed. More information on this will be
* Find Out Who Your Congresspersons Are
Writing letters to, faxing, and phoning your representatives in Congress
is one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.
EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. These lists are available at:
The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies. EFF will be happy to archive any such
information provided to us, so pass it on!
If you are having difficulty determining who your US legislators are,
try contacting your local League of Women Voters, who maintain a great
deal of legislator information, or consult the free ZIPPER service
that matches Zip Codes to Congressional districts with about 85%
Computer Currents Interactive has provided Congress contact info, sorted
by who voted for and against the Communcations Decency Act:
* Join EFF!
You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums. Have you become a member of EFF yet? The best way to
protect your online rights is to be fully informed and to make your
opinions heard. EFF members are informed and are making a difference. Join
For EFF membership info, send queries to members...@eff.org, or send any
message to i...@eff.org for basic EFF info, and a membership form.
EFFector Online is published by:
The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Membership & donations: members...@eff.org
Legal services: sste...@eff.org
General EFF, legal, policy or online resources queries: a...@eff.org
Editor: Stanton McCandlish, Online Activist, Webmaster (m...@eff.org)
This newsletter is printed on 100% recycled electrons.
Reproduction of this publication in electronic media is encouraged. Signed
articles do not necessarily represent the views of EFF. To reproduce
signed articles individually, please contact the authors for their express
permission. Press releases and EFF announcements may be reproduced individ-
ually at will.
To subscribe to EFFector via email, send message body of "subscribe
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you to a subscription list for EFFector.
Back issues are available at:
To get the latest issue, send any message to effector-reflec...@eff.org (or
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