NEW YORK --Wrapping up five days of courtroom testimony before a three-judge panel in federal district court in Philadelphia , the ACLU will present closing arguments this Friday, May 10, in the trial that will determine the future of free speech in cyberspace.
Plaintiffs and defendants will have two hours each to make their case and answer questions from the judges. The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge provisions of the Communications Decency Act that criminalize making available to minors "indecent" or "patently offensive" speech.
During the five scheduled days of trial, which took place during March and April, the court heard from 15 witnesses for the plaintiffs, who testified about the technological and sociological nature of the Internet and how the censorship law would effectively ban most "indecent" speech in cyberspace. Lawyers for the Department of Justice presented two witnesses in support of its case.
"The government's case, if anything, has highlighted further the intolerable vagueness of the Communications Decency Act," said Christopher Hansen, who will present oral arguments for the ACLU on Friday. "The government witnesses' responses to the Court's questions illustrated just how freewheeling the subjective, discretionary judgments of government prosecutors would be under the CDA."
Under questioning from the judges, both of the government witnesses testified that they understood "indecent" or "patently offensive" to include such politically inspired expressions as "Fuck the CDA," and such relatively tame partial nudes as the Demi Moore photo on the cover of Vanity Fair.
Plaintiff and defendant lawyers will appear before the court beginning at 9:30 a.m. on Friday morning. The ACLU and ALA coalitions will divide the two hours: Christopher Hansen of the ACLU will appear before the judges first, and Bruce Ennis for the ALA coalition will appear next.
Much of the presentation is expected to be taken up with responding to questions from the judges. At the discretion of the court, and depending on the amount of time used in arguments, plaintiffs may be given an opportunity for rebuttal following the government's oral arguments.
In its post-trial brief filed last week, the ACLU called the Communications Decency Act "the most restrictive speech ban in any medium," and said that it would "radically restrict and restructure cyberspace."
The ACLU's brief contends that the government, in an attempt to defend the law, is recasting the ban on "indecent" and "patently offensive" speech as a ban on "pornography." In doing so, the ACLU argued, the government is trying to narrow the CDA to a statute that might be more constitutionally defensible.
But, the ACLU brief said, online pornography is already subject to criminal prosecution under existing obscenity law, and the "indecency" and "patently offensive" terms do not contain exceptions for material with "serious value and without prurient appeal."
The ACLU also asserts in its brief that the government has not met its burden of showing that the CDA is the least restrictive means available of protecting minors, and that it has a "compelling state interest" in criminalizing all "indecent" or "patently offensive" Internet communications that might be accessed by minors.
Despite the heavy burden of proof necessary where free speech is infringed, the government presented no evidence at the hearing as to why it had a "compelling interest" in protecting minors from so-called indecency online. In contrast, ACLU plaintiffs presented substantial evidence that the categories of "indecent" and "patently offensive" speech include a vast quantity of material that is valuable to minors, especially older minors.
ACLU plaintiffs Critical Path AIDS Project, Wildcat Press and Stop Prisoner Rape and ALA witness Robert Croneberger of the Carnegie Library all testified about the value to minors of their online information on safer sex, gay and lesbian issues, prison rape, and other frank discussions relating to sex.
In fact, the government's only witness to address this point, Special Agent Howard Schmidt, testified that he believed his own son, by the time he is 17, "will have a sufficient basis of input from [me] and from his life experiences that he would not be harmed even if he were exposed to even exploitative sexually explicit material online."
The government's argument that the CDA satisfies the "least restrictive means" test is also unpersuasive, the ACLU brief said. The defense that online speakers can keep minors from viewing their communications by using a verified credit card or access code ignores the massive economic costs involved. It would also be technologically impossible, as the government's witness Dan Olsen conceded, to identify and screen out minors in many areas of cyberspace, such as Usenet newsgroups.
Olsen's own proposal for self-labeling or "tagging" so-called indecent material is equally burdensome and unworkable, the ACLU brief asserted. Using his "-L18" system, Olsen testified that the best way to comply with the new censorship law would be to block all possibly "indecent" words and images until "questionable" material could be reviewed and tagged for adult consumption. This process could take weeks or months, he told the court.
"Dr. Olsen's proposal betrays an insensitivity to free speech that is simply staggering," said Marjorie Heins of the ACLU, who also appeared before the court in ACLU v. Reno. Forced labeling also violates the First Amendment, Heins said, because it compels speakers to say things they don't want to say, and inhibits the listener's right to access constitutionally protected material anonymously.
In contrast, parental control mechanisms such as SurfWatch, Net Nanny and Cyberpatrol are already commercially available, and others are being developed, that would be more effective than any of the government's proposals. These user-based technologies enable parents to block whatever content they feel is inappropriate -- whether it be sexual, violent or religious in nature.
Olsen's tagging scheme, on the other hand, because it relies on self-censorship, would not block material originating from foreign sites not subject to the CDA, and may not be feasible on the large commercial online services such as America Online, Compuserve and Prodigy.
"Ultimately," said the ACLU's Hansen, "we hope the Court will recognize that the Internet is a uniquely democratic medium of expression that allows all of us -- rich or poor, powerful or weak -- to speak widely and to read widely. This statute has the potential to quash a medium with a vast potential to foster communication, promote democracy and make the marketplace of ideas' a reality in the 21st century."
The judges are expected to issue a ruling on the Plaintiff's preliminary injunction motion this spring or summer. Under expedited provisions, any appeal on rulings regarding the new censorship law will be made directly to the U.S. Supreme Court.
Lawyers for the ACLU appearing before the judges are Christopher Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of Pennsylvania.