NEW YORK (June 3)--The dark skies opened up and poured down on the city as the lawyers for the American Reporter v. Reno met for the final arguments in the massive federal courtroom on Pearl Street. Although the proceedings fell flat in the shadow of the high-energy finale in Philadelphia a few weeks prior, this parallel summation had its moments--some enlightening, others interesting, and others comic.
There were perhaps twenty or thirty people in the courtroom watching as Randall Boe, the lawyer for the plantiff, battled it out with government attorney William Hoffman. Boe began by stressing that since there are no real ways to comply with the safe harbor defenses, the CDA constiutes a flat ban on speech that is constitutionally protected for adults. He argued that the definition of indecency sweeps far too broadly, including works of merit such as Joyce's Ulysses and Miller's Tropic of Cancer.
Judges Cabranes and Cote both asked Boe if he would concede the statue's constitutionality with regards to commercial providers, suggesting that they might decide to uphold just a part of the statute. Boe responded that he didn't know if this was possible, saying that the intentions of the government seemed to be clear--"to eliminate all > indecent material from the Net".
Boe then pointed out that the government tried to calm fears by saying it would prosecute only those who "intend to shock or offend". This does not offer much consolation, he argued, as artists ply their trade with the explicit intention of shocking or offending--"it is a part of the creative process. That is why," he said "indecency has always been upheld by the First Amendment."
Judge Cote said that with regards to the tagging system proposed by Olsen, "the government is asking us to make a leap of faith into the future, by accepting this defense today." Boe responded that most people don't look to the possibilty of being acquitted, but the possibility of prosecution. And with no clear defense that actually works, he argued, there will be a huge chilling effect as people purge their servers. Boe continually hammered home the point that tagging pages today does nothing.
He also discussed the problem of judging indecency according to local communnity standards and declared that under this law a national standard will indeed develop--based on the lowest common denominator, the most restrictive community.
Hoffman started with an argument that was heard in Philadelphia--the plantiff is overreacting. "The number of items for which the government would prosecute which would cause a constitutional challenge is small." He argued that the context of these items is important. He also addressed Boe's assertion that the government did not have a compelling interest, saying that these indecent materials are easily accessible. "Children can get it. They can be surprised by it."
Cabranes was intent on having terms defined. He asked if "patently offensive" meant "indecent"; he wanted to know if "indecent" was the same as "harmful to minors"; he asked if "sexully explicit" was equivalent to "patently offensive." Hoffman danced around with answers that could be translated as "sort of."
Boe then got up for his final encore and raised the point that even the expensive, most effective means of determining age--credit card and Adult ID systems--are useless in the huge and largely ignored realms of the Internet such as Usenet and IRC. He then touched upon the fact that pejoratively labelling one's speech may not even be constitutional, reiterated that tagging systems do not even work today, and concluded that there is no way for an average user to avoid prosecution.
"The bottom line," he said, "is that it starts as a total ban for indecent communications between adults. Then there are no real defenses provided."
Not long after Hoffman started into his final arguments Cabranes stopped him to ask him, "With the possible exception of email, there is no way to be 100% sure that indecent material does not get to people under 18?" Hoffman added something about limited membership email lists, obliquely conceding the point.
Cabranes asked directly if the statute minus the defenses was unconstitutional. Hoffman danced around then admitted that "given the current state of technology it would be hard to argue that it's not a total ban."
Cabranes followed, "The question is whether the affirmative defenses can save the statute". Hoffman answered with something about the Supreme Court's decisions concerning telephones and how this was "not unprecedented".
Hoffman's argument was periodically distracted by a small, distincive click, echoing throughout the massive hall. On the back bench by the doors sat a large, bearded guard, slowly, deliberately trimming his nails. He clipped away and Chris Hansen, lawyer for the ACLU, finally turned his head and increduously whispered, "is he clipping his fingers or his toes?" Hoffman was not distracted, but talked about the government being compelled to action... *click* ... The guard was looking down into his hands, oblivious to the important and high-minded arguments in front of him. And then Hoffman was finished.
It was nearing 5:30, Cabranes said he had a few more questions about the "good faith" defenses, but not the time to ask them. He would present them on paper to Hoffman, who was to present a written response by Friday. The plantiff's lawyers then had a few days to respond. It was somewhat of an anticlimactic end to the final arguments, but Cabranes probably figured that he could never get a straight answer orally--particularly with regards to these vague safe harbors, on which the constitutionality of the CDA hinged.
In his deep, raspy voice Cabranes then called Fred Cherry, who had attended every day of the hearings in hopes of consolidating his case. The chief judge looked at a paper and pronounced Cherry's name again. Someone leaned over the seats and tapped Cherry. He awoke, arose, gathered his plastic bags and umbrella and, wearing his overcoat, approached the bench. He walked straight to the microphone and rested his belongings at his feet. Cherry started his hurried talk about how he "despised the ACLU" and what he was there to discuss "goes all the way back 30 years." He cited "rule 54 B--'B'as in 'Benjamin'".
Cabranes finally interrupted to determine that Cherry did in fact want to consolidate his case. He said it could be done after a decision is reached. Both parties agreed and that was that.
But Cherry was not through. "Can I give a little evidence here?" he asked. He had come prepared, with lots of arguments and stacks of evidence.
"Not a little evidence," Cabranes responded. "Just a few comments.
Cherry offered a document into the record then referred to an email message that was presented on the first day of testimony that involved his comments. It was pulled from the "alt.christnet" newsgroup and said something about "fags" and "jesus". Cherry wanted to set the record straight and said he was going way back, back to an early message posted by another that was titled, "What Size Is Christ". He then lauched into a story about Christ, appearing 900 feet tall, as compared to another one which was supposedly 500 feet tall.
The nail clipping had disappeared and all that could be heard was a strange, involved fiction, transparently suggesting Christ's penis size and lewd acts of fellatio with the Lord and Orel Roberts. Some were shaking with laughter; one lawyer at the plantiff's table turned his chair and removed his glasses, wiping tears from his eyes. Fred Cherry, the "connoi-ssewer of porn", summed up his evidence and thanked the judges for the time to speak.
It was not clear whether Cherry intended to shock or offend. All at once, it seemed all too apparent that it didn't matter--such speech would be found indecent under the CDA, even though it does have serious literary, artistic, or comedic value.