The Statutory Defenses Didn't Save the CDA

The three judges all agreed that the CDA was overbroad-- that it criminalized speech which was fully protected by the First Amendment. In order to get there, the judges first considered the question of whether the CDA's built-in defenses saved the law from overbreadth.

Many criminal laws contain built-in defenses--definitions of the circumstances under which the law will be considered not to apply. They are called "defenses" because they are the defendant's response to a charge of criminal behavior under the law. Typically, the prosecutor first attempts to prove that the defendant has committed a crime, and then the defendant has the burden of showing that his behavior is excused by a legally recognizable defense. For example, a prosecutor may introduce evidence showing that the defendant fired his gun, killing a man; the defendant then attempts to prove that he was acting to defend himself against attack.

The CDA provides a variety of defenses to those accused of distributing indecent material. First, in a provision reportedly added after intense lobbying by online services and ISP's, the law states that no-one shall be held responsible merely for providing "access or connection" to a server or network "not under that person's control". However, the defense is not available to an access provider who "is a conspirator" with the content provider or who "knowingly advertises the availability of such communications." Thus, a provider like IDT who advertises "uncensored Internet" access might conceivably be denied the use of this defense. At the time the CDA was passed, several of its proponents suggested that anyone linking from their own Web page to someone else's indecent pages might be guilty under the law; perhaps this is construed as knowing advertising of someone else's indecent work.

The CDA defense which received the most attention at trial, however, dealt with efforts to keep indecent materials away from minors. Since the Supreme Court, in Pacifica and other famous cases, has repeatedly held that Congress cannot entirely ban indecency even from tightly regulated media, the drafters of the CDA were obligated to define the circumstances under which indecent speech could be uttered on the Internet without fear of liability. They therefore included in the CDA a defense that a distributor of otherwise indecent speech has "taken, in good faith, reasonable, effective and appropriate" measures to restrict access to minors, "including any method which is feasible under available technology."

As drafted, the defense doesn't give a lot of comfort to those wondering how to distribute indecent speech in safety. The words "reasonable, effective, and appropriate" constitute a triple threat; how can you know you have ever satisfied all three of these requirements?

Since the CDA was first introduced, many Web sites containing explicit material have added a disclaimer to their top page, inviting you to log off now if you are a minor or are shocked by such material. (Some have even provided a link to an online Bible as a means of escaping from their top page.) Numerous Congressmen and other pro-CDA spokesmen have heaped contempt on such disclaimers as being little more than a teasing invitation to view indecent material. Disclaimers, in other words, are not a "reasonable, effective, and appropriate" measure.

The law goes on to define several specific measures which are acceptable: "use of a verified credit card, debit account, adult access code, or adult personal identification number." These approaches, available to commercial providers of indecent material, give little insight into appropriate measures for noncommercial sites, as the ACLU v. Reno judges found.

The CDA, committing the ultimate unpardonable sin in the eyes of free speech advocates, wraps up its discussion of defenses by inviting the FCC to issue regulations further defining "reasonable, effective and appropriate" measures. The CDA at least specifies that the FCC will not have any authority to enforce the CDA.

In their findings of fact, the judges concluded that the credit card defense was not currently practical even for commercial providers on the Net and might never be for noncommercial speakers. Testimony at trial had shown that "neither Visa or Mastercard considers the Internet to be sufficiently secure" to process transactions via the Net. Although there are commercial sites that will accept credit card numbers via the Net, apparently no accepted technology exists for verifying these credit card numbers in real time. Instead, verification is done "offline using phone lines in the traditional way." (p. 73) Although this is fine for a book or record order that will be shipped the next day, it is not an effective way of verifying the age of a user who is requesting immediate access to the inner sanctum of a site containing indecent material.

Credit card verification, the court said, "will remain economically and practically unavailable" for noncommercial sites. The uncontroverted testimony at trial--in fact, it was a government witness who said so--was that "verification agencies would decline to process a card unless it accompanied a commercial transaction." Also, novelist and publisher Patricia Nell Warren had testified that verification costs $1 per transaction--forbiddingly costly for nonprofit sites that may have many thousands of visitors per day. The court was even concerned that credit card verification would delay retrieval of information on the Net, citing Professor Donna Hoffman's testimony that "excessive delay disrupts the 'flow' on the Internet and stifles both 'hedonistic' and 'goal directed' browsing." (pp. 75-76.)

The judges similarly concluded that "adult access code screening"--approaches in which a user fills out an application form and receives a password or PIN number-- are impractical. Noncommercial sites don't have the wherewithal to implement these systems. An executive of Hotwired had testified that its registration system-- in which users enter their name, an email address, and a password--was very unpopular with the public, and that it would be prohibitive even for Hotwired to individually contact and screen each of its hundreds of thousands of users. Also, the court said, both credit card and age verification requirements would effectively discourage many users from obtaining free information, and would even harm commerce on the Net, by decreasing circulation on commercial sites and thus driving down advertising revenue.

The government had introduced a college professor from Brigham Young University, Dr. Olsen, who testified that it would be feasible to embed a tag--"-L18"--in the URL or in an HTML page. Screening software could then be developed to block minors from accessing any site bearing an L18 tag.

An inordinate amount of time was spent at trial examining the validity and practicality of tagging and blocking systems, including Surfwatch software, the PICS system, and Dr. Olsen's -L18 proposal. Actually, there was something very strange about the focus on tagging. The judges were being asked to save a federal law because of a technology which didn't exist yet.

The Government's implied argument went something like this. The CDA may be overbroad, and potentially punish all kinds of protected speech. But the CDA is not really harmful to anyone, if all that is required to escape its provisions is to embed an -L18 tag in your URL. If you hold that -L18 saves the CDA from being dangerous and unconstitutional, the industry will adopt and implement -L18 in a matter of a few weeks or months.

The trial sounded more like a legislative than a judicial hearing at such moments. Congress may decide to order the creation or the adoption of a technology, as it did with the V-chip. Courts rarely do.

The judges were concerned that adoption of -L18 would require noncommercial providers to review and tag thousands of pages of existing material. The head librarian at Carnegie had testified that it would have to hire numerous additional employees to review its online files, while Kiroshi Kuromiya, founder of the Critical Path Aids Project, testified that it would be impossible for him to do so with only one full and one part time employee. The judges didn't like the alternative--that it would be necessary to tag, and therefore block, an entire site, simply because it contained some indecent material.

Chief Judge Sloviter listed a couple of additional reasons why the panel did not buy the argument that the defenses saved the constitutionality of the statute. Tagging was not effective in itself; as a "reasonable, effective and appropriate" defense, it required third parties--browser manufacturers and others--to step up to the plate and add blocking features to their products. "I do not believe a statute is narrowly tailored when it subjects to potential criminal penalties those who must depend on third parties for the effective operation of a statutory defense." Most significantly, the government had conveniently forgotten to stipulate "that a content provider could avoid liability simply by tagging its material." (p. 114)

Sloviter called the government's argument that the industry, if pushed, would create blocking technology, "extraordinary":

I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds. (pp. 117-118)

The government's -L18 testimony appears to have been an act of desperation, a last ditch attempt to save a law it knew was overbroad.

What Did "In Context" Mean?

The CDA contains two mysterious words that the government relied on in another attempt to avoid the conclusion that the law was overbroad. It says that speech is indecent if it "in context, depicts or describes" sexually explicit material in terms which are patently offensive by community standards. The government argued that the words "in context" were sufficient to create an exception for material which has social value. In other words, no prosecutor would find socially valuable material to be patently offensive "in context".

Judge Buckwalter didn't buy it. The CDA, he said, "fails to explain which context is relevant." (p. 142) Context might refer to the nature of the communication, the time of day, the medium used, the speaker's identity, or the presence of appropriate warnings. Like Judge Sloviter, he didn't find the government's argument that we should trust prosecutorial discretion to be confidence-inspiring. "Such unfettered discretion to prosecutors, however, is precisely what due process does not allow." (p. 142)

Judge Dalzell quoted an FCC ruling that "the merit of a work is 'simply one of the many variables' that make up a work's context." (p. 172) He noted that the FCC had held a radio play about AIDS indecent, even though it had "public value" and addressed "serious problems" because it was presented in a patently offensive manner.

The government's concentration on the words "in context" were another unsuccessful attempt to save an overbroad statute by reshaping it into something else. The House-Senate conference committee, putting the CDA into its final shape, had rejected Congressman White's attempt to include an exception in the CDA for socially significant material. The government must now live with the consequences.

Finally, It All Comes Down to Parental Responsibility

There is a profound philosophical gap between the pro-CDA and free speech forces. The latter believe that in the last analysis, parents are the only ones qualified to determine what their children may see or read. The CDA proponents, on the other hand, are insistent that parents cannot possibly protect their children from the Internet. During the original CDA debate, Senator Dan Coats boasted that he didn't even know how to program the time on his VCR, while children are so technologically adept they can defeat any protection. When Senator James Exon, the CDA's sponsor, rose to begin the debate by reading a list of indecent Usenet newgroups ("erotica bestiality, hamster, duct tape") he failed to mention-- if he even knew--that almost no child gets on the Internet without a parent setting up an account and givig the child a password.

Ironically, the pro-CDA forces are largely the same people who do not think government should be involved in regulating business or in social welfare. There is an unresolved conflict in holding that big government can be effective as an enforcer of private morality, when they believe it so notoriously fails in every other department.

Senator Patrick Leahy, who led the charge against the CDA in the Senate, advised his colleagues: "Maybe we can do it the same way my parents did. They guided me when we read."

Judge Sloviter agreed:

When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools and libraries to screen such material from their end. It did not do so, and thus did not follow the example available in the print media where non-obscene but indecent and patently offensive books and magazines abound. Those responsible for minors undertake the primary obligation to prevent their exposure to such material.

Conclusion

ACLU v. Reno was not about pornography. It was about the the evolving idea of "freedom of speech"; specifically, the judges' task was to define the meaning of "freedom of speech" in the United States for the 21st century.

First Amendment law is a patchwork of provisions with little in the way of a guiding philosophy, and it is driven very heavily by the medium on which the speech is communicated. Only the print media which existed when the Constitution was written have ever received the full protection of the First Amendment, until today. Professor Zechariah Chafee, writing in 1942, observed that long familiarity with newspapers, books and pamphlets as the only means of public discourse led to the need for their protection being "generally realized." On the other hand, he said, when new communications media were introduced, "writers and judges had not got into the habit of being solicitous about guarding their freedom. And so we have tolerated censorship of the mails...the stage, the motion picture, and the radio."

In the next century, the volume of electronic text is certain to dwarf the volume of text printed on paper. (Perhaps it already does.) "The printed book," said Jay David Bolter, "seems destined to move to the margins of our literate culture... electronic technology offers us a new kind of book and new ways to write and read." Judges Sloviter, Buckwalter and Dalzell admirably decided that there is no difference, for First Amendment purposes, between electronic text and text printed on paper. Freedom of speech in the U.S. greets the dawn of the 21st century.

[Part I reviewed ACLU v. Reno's rulings on the controlling metaphor for the Internet; the correct constitutional test; the question of whether there will be more attempted regulation by Congress of Internet content; whether the government has a "compelling interest" in protecting children from Internet content; and whether the CDA was vague or overbroad.
Part II considered the ruling's impact on the Pacifica (Seven Dirty Words) case; asked whether socially valuable speech was really endangered by the CDA; and asked whether the CDA was intended to apply local community standards. Both are available from the main menu at https://www.spectacle.org/cda/cdamn.html.]

Jonathan can be reached at jw@bway.net