IN THE SUPREME COURT OF THE UNITED STATES
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., Appellants
v.
AMERICAN CIVIL LIBERTIES UNION, ET AL.
No. 96-511
Washington, D.C.
Wednesday, March 19, 1997
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:06 a.m.
APPEARANCES:
SETH P. WAXMAN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Appellants.
BRUCE J. ENNIS, ESQ., Washington, D.C.; on behalf of the Appellees.
C O N T E N T S
ORAL ARGUMENT OF SETH P. WAXMAN, ESQ., On behalf of the Appellants
ORAL ARGUMENT OF BRUCE J. ENNIS, ESQ., On behalf of the Appellees
REBUTTAL ARGUMENT OF SETH P. WAXMAN, ESQ., On behalf of the Appellants
P R O C E E D I N G S
(10:06 a.m.)
CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 96-511, Janet Reno v. The American Civil Liberties Union.
Mr. Waxman and Mr. Ennis, I would like to tell both of you before you start your argument that each counsel will be allowed 35 minutes instead of the usual 30 in this case.
You may proceed.
ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE APPELLANTS
MR. WAXMAN: Thank you. Mr. Chief Justice and may it please the Court:
The Internet is a revolutionary advance in information technology. It also provides a revolutionary means for displaying patently offensive, sexually explicit material to children in the privacy of their homes.
With as many as 8,000 sexually explicit sites on the World Wide Web alone at the time of the hearing, and the number estimated to double every 9 months, the Internet threatens to render irrelevant all prior efforts to protect children from indecent material.
All of the laws regulating the display of indecent materials in theaters and book stores, on radio, TV, cable, and telephone, all of these approach insignificance when the Internet threatens to give every child with access to a connected computer a free pass into the equivalent of every adult bookstore and video store in the country.
Congress debated for a year-and-a-half before enacting the Communications Decency Act which, as we explain in our brief, contains three distinct provisions.
Let me go right to the broadest one, which prohibits the display of patently offensive material "in a manner available to a person under 18 years of age."
When read together with the statutory --
QUESTION: That is (d)(1)(A)?
MR. WAXMAN: That is (d)(1)(B).
QUESTION: (d)(1)(B). Thank you.
MR. WAXMAN: When read together with the statutory defenses, this provision permits persons to post indecent material on the Internet so long as they take reasonably effective steps not to expose it to children.
The district court found that on the World Wide Web, where most of the material that concerned Congress is posted, it is technologically feasible for speakers to screen for age, and on commercial sites that is commonly done.
Even as to noncommercial sites, the evidence showed that the technology exists, and is operating, to provide adults with a verification code that allows them to access adult-only sites at no cost to those who post information on those sites.
QUESTION: Mr. Waxman, does that technology require use of something called CGI --
MR. WAXMAN: It does --
QUESTION: -- in order to screen it out, in effect? Is that the mechanism by which that can be done?
MR. WAXMAN: The -- Justice O'Connor, the mechanism by which a Web site can screen for age, or a particular page, or indecent material on a Web site could screen for age is, or at least at the time of the hearing was by the use of something called CGI script.
But the obtaining of an adult ID is something that the unrebutted evidence showed was a service that even at the time of the hearing, without the benefit of the Communications Decency Act in effect, an adult, somebody over 18 who wanted to view patently offensive material on a screen site could, for $5 a year, obtain an adult identification that would give that person access to any and all adult sites, and --
QUESTION: Of course, the problem is not at that end. It is at the other end. How can a person putting material out in the system assure that it's only going to be accessible by somebody with that code?
MR. WAXMAN: Exactly, and what the record -- what the district court found as fact was that on the World Wide Web it is technologically feasible and economically feasible, either by use of a credit card, which is more expensive, or by requiring the punching in of an adult ID code that is available from a third party for as little as $5 a year, to get access, but the technology on the World Wide Web exists to display this.
QUESTION: Well, how does that fit in with use of Web sites by noncommercial users, or just private individuals or libraries, or something of that kind?
MR. WAXMAN: Do you mean use, that is that they want to view material, or use that they want to post indecent material?
QUESTION: Both.
MR. WAXMAN: Okay.
QUESTION: I mean, the library wants to have material on its Web site which might be viewed as indecent, I guess. We're not talking about obscene material --
MR. WAXMAN: That's right.
QUESTION: -- are we?
MR. WAXMAN: That's right. Let --
QUESTION: We're talking about some other category of material.
MR. WAXMAN: Let me address the example of the library.
QUESTION: And while you're at it, I want you to tell me how -- what percentage of Web sites are incapable of using this CGI script, do you think?
MR. WAXMAN: Okay. Let me --
QUESTION: Not all of them can use it, and so I --
MR. WAXMAN: Well, let me answer your second question first and then go to your library example, but the testimony in the record before the district court was that on -- for certain third party access providers like America Online and CompuServe, which allow customers to create their own Web sites for free, they do not currently have CGI software, so for example I, I am a member of America Online. If I want to create my own Web page I have to go to somebody else.
There are hundreds, if not thousands of servers that you can go to to create a Web page. I would have to write my own Web page on something other than America Online, or of course America Online could simply adopt CGI script, which at the time of the hearing at least it had chosen not to do.
Now, as to the library, the Carnegie Library is an appellee in this case, and it is a very good example of what we think represents the overblown nature of the challenge to this act.
The library wants to do two things. It wants to put its card catalogue on line so that anybody anywhere in the country can see what it is that the Carnegie Library has, and it also wants to put on line journals and abstracts that it in turn receives on line in an electric form.
Now, the definition, the accepted definition of what is patently offensive, that is a term of art. It is very narrow, and it is exceedingly difficult to see how it would apply to more than a handful of cards in a card catalogue, but to the extent that it does, you can simply run it through some sort of word processor or computer program to screen -- it's only text, after all, on cards, and if you find a card that --
QUESTION: Mr. Waxman, may I ask you to go back to the first point that you were answering, because I'm puzzled. I thought the district court found as a fact -- and this is at 929 F.Supp. 846 to 847 -- found as a fact that noncommercial organizations particularly would find age verification prohibitively expensive and that indeed, in the Shea case, that same fact-finding was made.
MR. WAXMAN: That is correct, and we do not think that that finding, as we read it, Justice Ginsburg, is either clearly in error or in error at all.
What the court found, though, was that for noncommercial Web sites -- that is, people who aren't businesses that want to post speech on the World Wide Web -- it would be prohibitively expensive to create their own adult validation system. That is the finding that the court made on page 55a of the Joint Appendix. I do not have the F.2d site, but that was not the only -- or F.Supp. site. Sorry.
That was not the only other alternative. We put on -- in response to their claim that the Communications Decency Act acts as a ban, we put on evidence showing that even prior -- even before the CBA came into effect there were third party entities that on line would provide any adult with an adult number for a fee of between $5 and $9.95 a year, at no cost to the person who wants to create their own Web site and put indecent material on it, which would allow you to go to any of those Web sites, or any of those pages, punch in your number and get access to it, and there was -- that evidence is unrebutted on the record.
So while we don't challenge the court's findings that if people like you or I wanted to post our -- or nonprofit organizations wanted to create their own adult verification system it would be unduly expensive, we do challenge the adequacy of that finding to support the conclusion that this statute is unconstitutional on its face.
QUESTION: May I ask you just for a little more clarification about your specific example of the Carnegie --
MR. WAXMAN: Yes.
QUESTION: -- the library posting a card that they know would violate the statute if it is read by an -- 17-year-old. Now, what does this software do exactly, that you are describing? It identifies all the adult people who have access to adult material. That means that anybody who does not have that cannot see it?
MR. WAXMAN: What the -- Justice Stevens, what the -- if the library found that there were any library cards that contained material that could be deemed patently offensive, they would take the --
QUESTION: Let's assume they know something would be, so it --
MR. WAXMAN: Okay. Let's assume there's that. If they had that, what they would do is, with respect to those cards, or those journals that they know to be patently offensive, they would put them in a little section of their Web site in which to get access to it. If you want to see -- we have certain other cards --
QUESTION: So that everyone who does not have the adult identification equipment, whatever it is, those people just don't see it.
MR. WAXMAN: That's right.
QUESTION: So that in order to get access to that if you're a viewer, you have to do whatever's necessary to become an identified adult.
MR. WAXMAN: That's right. It's the exact analogy to what may very well happen to the Carnegie Library itself in Pittsburgh.
QUESTION: What if --
MR. WAXMAN: Pittsburgh may have an ordinance that requires that patently offensive material be kept --
QUESTION: What if an identified --
MR. WAXMAN: -- in a different room and supervised.
QUESTION: What if an identified adult wrote the library a letter and said, I have the adult stuff, but I have a 17-year-old son that I'm going to have watch this with me. What should they do?
MR. WAXMAN: Well, the act does not make illegal the provision to adults of this material. If a father or mother --
QUESTION: They would know there's a 17-year- old the audience.
MR. WAXMAN: If -- well, I think here it depends a little on the mode of communication. If I -- if you ask me to send you an indecent E-mail, and you tell me that your son is sitting right next to you and is going to read it --
QUESTION: No, but my motive is that I'm Anthony Comstock, and I don't want this stuff to go out, so I'm telling you I've got a 17-year-old son who's going to help me police the airwaves.
MR. WAXMAN: Then I -- then under the specific child and transmission provisions as well as the display provision, you could not send it, but there is nothing to -- there is nothing in this act that in any way gets in the way of adult-to-adult communication.
I may very well find that my 16-year-old son in my judgment, in my responsibilities rearing my child, should be able to see material that a jury would find patently offensive, and I can certainly do that.
QUESTION: You're saying that any adult has a heckler's veto on the whole operation by simply saying I'm going to let my child watch it?
MR. WAXMAN: Oh, no. No, no. Absolutely not.
QUESTION: Well --
MR. WAXMAN: The only thing that is prohibited under -- if I can separate out the provisions, under the two more specific provisions, what we call the transmission and specific child provision, they only apply to transmissions where you know that the recipient, or a recipient is a child. If you don't know that, actually know it, it doesn't apply.
Now, on the display provision --
QUESTION: It's more than knowing it, isn't it? You have to send it to a specific person under 18.
MR. WAXMAN: Yes. Knowing --
QUESTION: And it seems to me if you're sending it to the adult and he says, by the way, I'm going to have a child watching, you're not sending it to the child.
MR. WAXMAN: That is --
QUESTION: You're sending it to the adult.
MR. WAXMAN: That is absolutely right. Now, the -- what becomes more problematic is the display provision, because it is broader.
QUESTION: Yes. Those two other provisions, as you interpret knowing, are virtually worthless as I understand it. I mean, they're not going to accomplish much.
MR. WAXMAN: They are actually very, very important to us in terms of our prosecutions of sexual predators.
QUESTION: Which two provisions are you talking about?
MR. WAXMAN: This is -- I think it's (a)(1)(D), the --
QUESTION: Transmission --
MR. WAXMAN: -- transmission provision, and (d)(1)(A), the specific transmission, the specific child provision. They are really designed, Justice O'Connor, to get at the determined sexual predator.
QUESTION: Well, is it the case under those provisions that -- suppose a group of high school students decide to communicate across the Internet, and they want to tell each other about their sexual experiences, whether those are real or imagined. They're all -- every high school student who would do this is then guilty of a Federal crime, and subject to 2 years in prison?
MR. WAXMAN: If high school -- I mean, when you say they want to talk about their sexual experiences --
QUESTION: That's been known to happen in high school.
(Laughter.)
MR. WAXMAN: I'm shocked to learn that there is gambling in this establishment.
(Laughter.)
MR. WAXMAN: There is a big difference, Justice Breyer, between discussing sexual experiences and communications and speech that is patently offensive as that term of art has come to be understood.
QUESTION: Well, I mean, I even imagine high school students might read from, let's say, books or magazines that have what people might think of as patently offensive ways of describing those experiences. If you get seven high school students on a telephone call, I bet that same thing happens from time to time.
MR. WAXMAN: It may.
QUESTION: And so my concern is whether, analogizing this to the telephone, it would suddenly make large numbers of high school students across the country guilty of Federal crimes as they try to communicate to each other either singly or in groups. That's one concern I have.
MR. WAXMAN: If high school students, like anybody else, communicates what a jury would find and what this Court would establish, given its responsibility to create a constitutional floor to be patently offensive within the meaning of this statute, they would violate it, because the alternative --
QUESTION: There's no high school student exemption?
(Laughter.)
MR. WAXMAN: Justice Scalia, you may find it in the legislative history, but it is not apparent on the face of the statute.
(Laughter.)
QUESTION: Wouldn't there then be a --
MR. WAXMAN: My point, if I could just finish, Justice Breyer, there is something that is -- there is a deadly serious point here, and that is that when the alternative is that every child in this country who has access to a computer and can click a mouse has access in his or her own bedroom or home or library to Hustler Magazine and Penthouse Magazine, and the kind of indecent speech that people sitting in the anonymity of their own bedrooms anywhere in the world or anywhere in the country wants to make available to them, we think that this is a small price to pay, and Congress could legitimately say that this is a narrowly tailored alternative.
QUESTION: That's the --
QUESTION: I take it then that you would also defend the constitutionality of a statute which, tracking the words we have here, prohibited indecent conversations on a public street with minors present --
MR. WAXMAN: I think that --
QUESTION: -- or between minors.
MR. WAXMAN: Well, I think that a municipality certainly could. I think it is a harder case, but I think a municipality could make it a crime for an -- for two adults to engage in patently offensive, sexually explicit communications in the presence of a minor child.
QUESTION: Why is that a harder case? It seems to me easier. It's easier to verify.
MR. WAXMAN: Oh, it's a harder --
QUESTION: The presence of that minor.
MR. WAXMAN: It's a harder case because a public park is a -- it's a free space. It's an area where, unlike the Internet, speech is free, which --
QUESTION: You're asking us to say that the Internet is not a public forum.
MR. WAXMAN: The Internet is -- we don't think it is, but if it is, in any event it certainly is, like other public forums, subject to reasonable time, place, and manner restrictions.
QUESTION: A public forum is something created by the Government, isn't it?
MR. WAXMAN: Right. Right. We don't think it's a public forum, whereas a park would be, but let me -- if I can just --
QUESTION: Well, it's a pretty public place, though, because anyone with a computer can get on line --
MR. WAXMAN: Right, and -- yes, and that is one --
QUESTION: -- and convey information and images, so it is much like --
MR. WAXMAN: It's one of the --
QUESTION: -- a street corner or a park, in a sense.
MR. WAXMAN: It's one of the wonderful things about it, and if I can just finish answering Justice Kennedy's question, you know, if a theater company wanted to put on a production at the Sylvan Theater on the National Mall that contained material that was patently offensive -- I don't know what a current production would be, but assume that they did. It would not be at all unreasonable or unlawful for the Park Service to say, you have got to screen for age. You have got to require people to show adult ID. You have got to cover the --
QUESTION: But that's in the commercial context, and Justice Breyer's question and my following question pertained to people that don't have counsel, that aren't broadcasters or regular Net users which understand what the concepts of decency or indecency are in any institutional sense, and conversations between two minors, between a minor and an adult, between two adults on public streets and public places would all be prohibited, it seems to me, under your analysis in this case.
MR. WAXMAN: It's -- I think the analogy here really is to Renton and Young. This is really a zoning issue.
Let me give you an example. Let's assume on the Mall --
QUESTION: May I suggest -- before -- it seems to me that the case that Justice Kennedy poses is a more difficult case, but isn't the reason that -- I don't think people throughout the country are worried about their kids hanging around conversations going on on the public street.
Isn't the scope of the risk involved very much related to what the Government can do by way of avoiding that risk?
MR. WAXMAN: I don't think there's any question about it. I mean, what Congress was faced with, and what the record below shows, if you look at the testimony of Mr. Schmidt, our expert, and the exhibit that he produced of the sites that he visited on one visit, the problem is very, very serious.
But even looking to the National Mall example, Justice Kennedy, if a park policeman finds somebody sitting on one of the benches on the National Mall making a speech with a bull horn or speaking in such a loud voice that it can be heard by others, and using patently offensive language, I don't think there's anything constitutionally impermissible with saying, sir, if you want to do that, there's a specific place on the Mall for that, or for $3 you can buy a cone of silence, and we'll put you in this little cone and you can talk to yourself.
QUESTION: The point of my --
MR. WAXMAN: And that's what this is about.
QUESTION: Mr. Waxman, you know, there was once prevalent throughout this country a kind of ordinance that went like this. It made it a misdemeanor to use offensive language in the presence of women and children.
I was wondering while you were speaking whether you were saying the assumption that those laws are no longer tenable would flunk the First Amendment, that that's not a correct assumption.
MR. WAXMAN: Those laws, Justice Ginsburg, are distinguishable in two very fundamental ways, and it's critical, I think, to this case.
One, this Court has recognized that, as opposed to minors, there is a constitutional right to make indecent, patently offensive speech to adults, and insofar as this was trying to protect women from hearing such speech, that would be unconstitutional.
Secondly, the notion --
QUESTION: Well, let's take out women. Just children.
MR. WAXMAN: Okay. The notion in those laws -- this is my second point -- of what is offensive was I think subject to a very serious vagueness challenge.
What we have here is a definition of patently offensive material that is not vague, that has been held by this Court and the FCC and the lower courts not to be constitutionally vague, and we have set out at page 17 of our reply brief pretty much in haec verba what a jury would have to be instructed in determining whether something was patently offensive under their prevailing community standards.
And added onto that we also have now, in light of Miller, and Jenkins, and Hamling, and Ferber, this Court's unequivocal statement that in the area of patently offensive, where First -- where there is a First Amendment implication on where the floor is drawn, the Court will and must draw a constitutional floor below which juries and legislatures can't go, so we have a standard here that has been accepted, and can be refined by this or other courts.
QUESTION: Mr. Waxman, let me ask you another question more or less along the lines, I guess, of Justice Breyer's, who spoke of the high school students who might go to prison. If we combine the display section and the knowingly permit section, I take it that a parent who allowed his computer, the computer that the parent owned, to be used by his child in viewing offensive material, indecent material, the parent would also go to prison, I take it.
MR. WAXMAN: I don't see why that would -- maybe I'm missing something --
QUESTION: Well --
MR. WAXMAN: -- in the language, but it prohibits a transmission.
QUESTION: -- it's an offense to display the material, as I understand it under the display section, where minors will obtain it, and if a parent says I'm going to allow, knowingly allow my computer to be used by my child to observe these displays, isn't the parent therefore guilty of the knowing, under the knowingly permit section?
MR. WAXMAN: I don't think so. This is a statute that is self-consciously directed solely at the content provider, the person who is putting --
QUESTION: No, but this isn't a content provider.
MR. WAXMAN: -- information on the World Wide Web.