Part II: No Assurance
by Mark Mangan
From the onset of the DoJ's final arguments the panel of judges interrupted with questions. They were curious to know the real extent of the law and the intentions of the government: who was going to be prosecuted, for what, and how could people protect themselves? At one point Judge Sloviter said, "People have the right to know what they might be prosecuted for and not have to keep running to lawyers to ask about a statute which doesn't say how it's going to be construed?"
Coppolino replied, "Construe it in the manner that Congress has construed it before."
In response to the same direct question again, "How is it applied?" he gave the same evasive answer: "It will apply in the way that Congress intends to apply it."
I was stirring in my seat. I wanted to stand up and demand that he actually answer the question. It soon became even more clear to me that this game centered around a law which was nothing more than a half-baked concoction of broadcast regulations. The government lawyers didn't understand the medium, just as they didn't understand the extent of First Amendment. Unfortunately for them, the judges did all too well.
A few words into Coppolino's argument Judge Sloviter tried to hammer down the slippery, elusive terms which formed the heart of the statute: "patently offensive" and "indecent." Coppolino responded with something about sexual or excretory functions or actions. The judge asked him, "You want us to read it as having built in exceptions to works having value?"
He then went on about dial-a-porn and cable and said "the parameters are quite specific, including pornography or shocking, vulgar language."
Judge Dalzell pointed out that there are 94 U.S. District Attorneys. Anyone of them could look at something offensive, look at the CDA, and say, "let's convene a grand jury. Even if acquitted, that's not a lot of assurance."
Coppolino returned again with the refrain that "the indecency standard covers a fairly narrow category of speech." Judge Sloviter responded with skepticism, citing certain works of art and literature. "Leave aside Chaucer, Shakespeare, and Catcher in the Rye." She wanted to talk about a contemporary play such as "Angels in America" which deals with some serious themes that some find objectionable, such as AIDS. "If this were printed on the Internet," she asked "would it be found indecent?"
"Indecency would sometimes cover work with value," Coppolino responded. "It doesn't necesserily include material of value. What the plantiffs presented ought not and should not be found indecent."
Sloviter then asked if someone were to send a 17 year old a passage from "Angels in America" and if that would be covered. Coppolino danced and Sloviter became a bit frustrated as she searched for the meaning of the slippery fish called "indecency." "You're asking us to rewrite the statute. What words do you want us to put in?"
In classic mambo style, Coppellino replied: "We don't have to rewrite the statute...'indecency' means what the other cases have said it means."
Coppolino had explicitly said that the plantiffs would not be prosecuted, and when he said that "the target has been material with very little value," Dalzell asked, almost rhetorically, "Who determines that--94 U.S. attorneys?"
As Dalzell pointed out the government's assurance wasn't very comforting. Just because a DoJ lawyer assures the ACLU that he's not after the plantiffs they represent, who's to say that one of the 94 U.S.Attorney's wouldn't get an itch in his pants: "that material's indecent and I'm gonna raise a goddam grand jury--put those perverts behind bars."
Dalzell spelled it out with a Mapplethorpe example: the artist's work was "a hit" in Philadelphia, "subject to prosecution in Cincinnatti" and now resides on a server at the University of California at Riverside. Could U.S. Attorneys from Memphis or Cincinnatti prosecute?
Absurdly built into the CDA was the already outmoded language found in Miller, which sets the standard of judging this material at the level of the local community. (The Supreme Court ruling of Miller v. California, 1973, defined the test for obscenity--the material must 1. turn you on (prurient) 2. gross you out (patently offensive) and 3. have no value--all according to local community standards.) By including this language into a law covering national computer networks, the government leaves wide the door for any district attorney to prosecute any user in any other district.
In response to direct questions regarding this issue--whether in fact any content provider is subject to each and every other community's local standards--Coppolino said something noncommital and evasive that came out in my notes as "blah, blah, blah." When the judges asked again if this university risked being prosecuted and what steps it should take if any, Coppolino said something about it being a "tough case."
Judge Sloviter said "I imagine we can give you lots of tough cases."
I stirred in my seat. "Give it to him again," I wanted to stand up and say. "With all due respect to the court, please ask him that again, and again, and again--until he gives a straight answer." If I were on the panel I would just keep repeating the question. Actually, the guy was arguing for a half-baked statute, drawn up by half-wit superiors who wanted it to be vague in the first place. If I ever woke up and found myself in his shoes, I'd probably be working out some new dance as well.
Coppolino argued that the law was trying to reach pornographi material that was not covered by obscenity law, such as what is found in Playboy and Penthouse. "They can't buy it in a store. They can't go to an adult theatre. But they can get it easily from the Internet." The problem with his argument and the law he was defending was that they gave no clear real assurance that a whole category of other material--from safe sex pages to holocaust material--would not be pulled in as well. Or, that this material was not also being specifically targeted under the law.
Sloviter returned to the example of contemporary Broadway plays, asking again if they wouldn't all be covered under the CDA. Coppolino answered by sidestepping and arguing that the Internet is in fact like TV, so we can apply the same regulations: "This is a highly pervasive medium that compares more to broadcast. This is a medium to which others are converging--piped through to the house."
At this point Dalzell offered another intelligent example that adeptly revealed how pervasive the print medium can be and called into question Coppolino's assertions of pervasiveness and the analogy to broadcast. Dalzell described his 10 yr old son as a "rabid Phillies fan" who runs down every morning to check the Philadelphia Inquirer for scores. Just the other day as he picked up the paper he saw a gruesome picture of a man being murdered--"Liberian prisoner faces death. Unarmed man shot to death with others laughing." His boy was looking for scores and he found this...
Judge Dalzell concluded, "Let's pass the Newspaper Decency Act." This law would require that all such violent and indecent material will be printed below the fold. "No cost. Minimal intrusion." It went without saying that this would be unconstitutional. "What makes the Internet so different?" he asked.
"It allows for a tremendously broad array to come right into the home." Coppolino replied. "It is becoming like television."
"This came instantly to my son. Surprise!" Dalzell said. "What is it about this medium--as they elaborated, the most democratic of media? What makes it different in terms of constitutional protection as compared to print?
...pause..."I'm not sure I understand the question..."
Dalzell wanted to know if the government was, in fact, drawing the direct analogy to broadcast media. Receiving a somewhat affirmative response, he raised the question of email and chat rooms--"they bear no resemblence to the broadcast medium." Coppolino then talked about the laws constitutionally applied to dial-a-porn. Dalzell returned, "But that deals with porn... it doesn't cover conversations I have with Judge Sloviter."
Coppolino most likely came to court with a prepared speech, but found his argument skewered by questions. Before stepping down, he stated "the government's compelling interest: to protect minors from material that is not obscene, but nontheless harmful to minors." "Harmful to minors" is a legal phrase that has been used before and one that Congress intentionally left out. Sloviter asked, "they didn't put harmful to minors' in. Do we have to read that in?"
Coppolino looked through his notes; he spent a couple minutes criticizing the effectiveness of Surfwatch, and sat down.
A New Book on Free Speech in Cyberspace