Reno v. ACLU

96-97 Term
Reno v. ACLU 96-511

Oral Argument Highlights
By Tony Mauro
The Supreme Court on Feb. 19 heard a lively and historic debate on indecency on the Internet that left many observers thinking that the vote in the case will be closer than many First Amendment advocates had hoped for.

During arguments in ACLU v. Reno, No. 96-511, justices showed considerable skepticisim toward the Communications Decency Act, the 1996 law that makes it a crime to display indecent material to children on the Internet. But they also seemed skeptical of arguments that massive self- ceonsorship, in violation of the First Amendment, was the only way the Internet could possibly comply with the law.

The argument began with a surprise announcement from Chief Justice William Rehnquist that lawyers for both sides would have five extra minutes to argue -- 35 minutes each, instead of the usual 30. Rehnquist did not announce why the time was added, but it was a sure sign that the justices were curious about the case, and they wanted as much time as they could get to have their questions answered.

For the next 70 minutes, the court heard informative and well-executed arguments by both deputy solicitor general Seth Waxman, defending the law, and Bruce Ennis of Jenner & Block, attacking it.

Waxman performed well with a difficult assignment. Not a single judge who has looked at the CDA thus far has found it constitutional, and the government was not relishing prospect of defending it before the Supreme Court. But by the end of the hour it seemed that Waxman may have convinced at least some justices -- maybe not a majority, though -- to look favorably on it, or at least parts of it.

At one point during the argument, Justice Stephen Breyer lamented that the law would make criminals out of high school students who share their sexual experiences or fantasies in an online chat. Waxman quickly replied with the mocking line from the movie Casablanca, "I'm shocked, shocked, that gambling goes on in this establishment," but acknowledged that Breyer's hypothetical high school students would have broken the law.

Scalia asked facetiously whether the CDA law contains an exemption for high school students. Without a pause, Waxman shot back that Scalia might find one in the legislative history of the law -- a nod to Scalia's disdain for legislative history, which brought a broad smile to Scalia's face.

Waxman was at his best when he argued that blocking indecent material at the source is technically possible, and when he painted a picture of the Internet as a uniquely pervasive medium that amounts, for minors, to a "free pass into the equivalent of every adult bookstore and theater in the country."

He also did well countering the efforts by justices to fit the new wine of the Internet into old First Amendment bottles. Sandra Day O'Connor, Anthony Kennedy and Ruth Bader Ginsburg saw analogies to a public sidewalk where indecent conversations could scarcely be criminalized, and Stephen Breyer saw parallels with telephone conversations, a sort of common carrier analogy where content has also not been criminalized. Waxman said the omnipresent, always viewable nature of the Internet was far more dangerous to children than transient conversations on a sidewalk or phone.

For all his forcefulness, though, Waxman still seemed to know he had the more difficult side in the case. During Waxman's 35 minutes, Justice David Souter latched onto the word "display" in the law, which he asserted could apply to a parent receiving indecent material just as easily as to the person transmitting it. In other words, Souter said that under the law as written, a parent could be prosecuted for allowing a child to see indecent material on a computer screen over his or her shoulder.

Waxman quickly jettisoned that part of the law, at first telling Souter that the court could write in an exemption for parents, then saying the court could write Souter's interpretation right out of the law. Souter said that would put the court in the position of creating a new provision of the law "out of thin air." Justice Ruth Bader Ginsburg added, "That kind of tinkering, courts don't do."

As if anticipating that he might get to that point, Waxman then cited all the court precedents that would permit the court to narrow the scope of the law in order to rescue its constitutionality.

For his part, Ennis did an able job of focusing the court on the unconstitutional nature of the law as written. By defining its target more broadly than obscenity -- which has no First Amendment protection -- the law affects all kinds of speech that is traditionally protected by the Constitution. And Ennis was able to get in a few effective plugs for the uniquely democratic and freewheeling nature of the Internet which would change forever if costly or cumbersome gates are thrown up to block indeceny. "Average citizens can speak to the world for free," Ennis said.

But Ennis ran into trouble because his bottom-line argument -- that the law works a ban on indecent speech -- is so dependent on ever-changing computer technology. The law constiututes a ban on speech, Ennis asserted, because it is either impossible or prohibitively expensive -- depending on whether you are talking about listservs, newsgroups or the World Wide Web -- for an Internet speaker to be certain that no children are listening or watching. Faced with that uncertainty, many will simply choose not to speak, hence the ban.

Several justices seemed skeptical of that argument. They seemed savvy enough about the technology -- Scalia revealed "I throw my computer out ever five years" -- to suspect that if the computer industry had to, it could come up with effective and less costly ways of tagging adult content or adult users.

Ennis correctly insisted those methods will never work for some segments of the Internet, like newsgroups. And he also wisely stressed that the lower court record -- which should be the court's only source for making technological judgments -- concludes that blocking at the source is impossible.

Justices also seemed surprisingly hostile to another strong argument that Ennis made -- that as much as half of indecent material on hte Internet originates abroad, beyond hte effective reach of whatever Congress wants to do.

Rehnquist and Scalia both said that's no reason for Congress not to act, and they suggested that keeping children out of half of the adult bookstores, so to speak, is better than doing nothing.

Ennis salvaged the international discussion, however, when Ginsburg asked him what other countries regulate speech on the Internet. Wihtout any judgmental tone in his voice, Ennis said China and probably Iran screen for unwanted messages. Hopefully, the court got the point that upholding the CDA would put the United States in frreedom-unfriendly company.

On the question of whether the court could rewrite the law to save it, as Waxman was urging, Ennis also may have carried the day by insisting that the court had to take the law as it comes to them and that Congress explicitly intended all the vague and overbroad aspects of the law that Waxman encouraged them to jettison.

In the end, most who watched the arguments think Ennis will win, but not by a 9-0 vote. Even Bruce Taylor of the National Law Center for Children and Families, one of the government's few amicus allies in the case, seemed to be hoping afterward for a remand, rather than predicting victory. Taylor thinks the court was so dubious about the technology issues that it might want more fact-finding about the latest relevant developments in the industry.

But it now no longer appears that it will be a 9-0 ruling against the law. A more likely lineup would have Rehnquist, Scalia and Thomas supporting the law, and Ginsburg, Souter and Breyer voting to strike it down. The unknowns: Kennedy, O'Connor and Stevens.