Part III: No Defense
by Mark Mangan
A couple of times during the proceedings Judge Sloviter self-consciously admitted that the panel did not want to appear to be "activist" judges. But the government's shoddy law and its evasive lawyers gave them no choice: the federal judges came across as true free speech supporters.
After Coppolino sat down, next came relief pitcher Jason Baron, in to save a hurting game for the government. He was scheduled to talk about the "safe harbor" defenses and Sloviter immediately asked him, "Has any Supreme Court case ever held that a criminal statute that has defenses in it saved it from overbreadth?"
Baron didn't answer the question, but instead said that the "statute represents a forward looking approach for what is a powerful, flexible medium. Congress has expected it to change. It is not a static snapshot of defenses." He then said that if the hearing were held in July, "virtually all of the browsers would have incorporated" tagging systems.
The response on the mind of most in the court: "So what?" The judges themselves would point out several times that if the law goes into effect now, a tagging system is not a valid defense, because there is no tagging system now. Simple concept, really. But the government seemed to have a difficult time with it. Dalzell also pointed out that he wouldn't expect the -L18 scheme to be implemented so quickly. He reminded Baron, "It was just invented by Olsen."
Dalzell then began on a line that would eventually get him a bit heated. "What more could Compuserve have done than it did if the CDA applied?" (Compuserve was recently investigated by the FBI for offering a relatively tame adult oriented section, located in a separate directory and available only to adults. They seemed to take reasonable, appropriate, and effective steps, but the government came in anyway, citing the CDA. The service suffered in the press as a purveyor of porn to youths.)
"The answer would be, I would expect that there would be an affirmative defense." Baron replied. When the judges inquired about these defenses, Baron was as vague as the law, suggesting that "tagging is the most elegant" solution. One can also "register the sites," he said, "make them known to the world."
Buckwalter then chimed in with a rare but useful comment: "That doesn't work. "'Effective' means that it has to have something more than 'no effect.'"
"Making known is far more effective than nothing," Baron replied. "We're not asking for 100% effective. The key is to put the burden on the content provider to do something." These words summed up the government's position: put the burden on the content provider to keep indecent material from children, but don't provide him with any sure means of doing so. In other words, bring in the deep freeze with the threat of prosecution--94 districts strong and varied.
In response to Baron's position that the content provider must do "something," Dalzell shot back, "What does this something get you? What did this something get Compuserve? If you're wrong, your company is going to be headlined as peddling smut."
Dalzell raised the subject of the Keeney letter, which was submitted in the American Repoter v. Reno case and outlined the kinds of defenses available to providers. "It doesn't say we won't prosecute you. Surely the chilling effect of prosecution is something we have to consider."
Referring to the law in the context of these outlined defenses, Buckwalter chimed in again, "It seems impossible to compy with."
Sloviter then cut straight through Baron's nonsense: "It seems that we are arguing there will be a way, in due course, that one could comply with the statute. The market will rise to the occasion. Why doesn't the government concede that a preliminary injunction would be appropriate and wait for the trial...the -L18 scheme is a product of Olsen's creative imagination. It may work, it may not work. We haven't seen anything that works without barring speech from adults." Baron did the jig and Sloviter continued: "How can we sustain that chill based on what is not there now?"
Baron looked at the judge: "Well, if there is no defense, one answer is to suspend," ...adding then that he was "not willing to concede that."
So the judges went over the other available defenses. Dalzell referred to credit card verification, made up some conservative numbers and showed how someone like Mr. Kuromya (a plantiffs who hosts a safe sex page and testified on the first day of the hearing) would clearly not be able to afford the many thousands necessary to implement such a scheme.
"I am not willing to concede these hypotheticals," Baron stated. "Credit card defenses may not be available to everyone."
Dalzell leaned forward in his chair. "He doesn't want to block minors. He's going to do it in a titilating and pandering way. Should we give him a guide book to federal correctional institutions?"
"He has an obligation to block out that portion of his site," Baron replied.
"He wants to entice them to learn about safe sex. He doesn't want them to die of AIDS," Dalzell continued.
"It would be blocked out under PICS," Baron offered.
"But that's because of parents. That's a big difference from the government blocking it." Dalzell kept hitting at the same point, knowing full well that the government's position that NONE of the plantiffs would be prosecuted was a farce. It seems apparent that they would come after Kuromya, who would never consent to tagging his material as unsuitable for minors. When Baron replied with something about how PICS is not effective, DalZell asked, "So it's better for Kuromya to bear the risk of going to a federal corrections insitution?"
"If he doesn't want to avail himself to any of the measures, he can take the consequences" (i.e. There are no measures available to him today. If the -L18 defense becomes the legally available defense tomorrow, Kuromya will abstain out of principle. Baron will then have his ass thrown in jail.)
Sloviter returned to the theme of a criminal statute hinging on nonexistent defenses. "I'm looking for specific examples of functional systems which work. Except for Surfwatch, which you point out is minuscule, there is nothing that you can point to that will work."
Baron broke out into a nice jig about Compuserve and Prodigy that distracted the question. But the mention of Compuserve heated Dalzell's blood, who clearly wasn't in the mood for dancing. He reiterated how it took good faith steps and was still investigated and humiliated. He wanted Baron to just admit the government's true position: "Just say you want to BAN this kind of speech!"
Baron responded by saying that not everyone who goes over 55 is prosecuted.
"Thank heavens," said Sloviter, breaking the courtroom's tension into laughter.
The judges then returned to the government's beloved -L18 scheme-- recognizing that it is nothing more than an idea and backing Baron into his corner--with Sloviter stating "this tagging scheme is something that he thought of after you hired him."
Dalzell asked, "if Bianca's Smut Shack were to tag -L18, that wouldn't do anything until a scheme is implemented."
Baron then tried to say that this particular site has made some good faith efforts: "she has given notice, in some sense, to the world."
"How does that keep minors from accessing it?" Sloviter asked. The -L18 was trash. After saying that he had "no more questions,... er, remarks," the crowd laughed the defense to a close and Baron sat down.
The ACLU had reserved a few minutes for some final statements, but considering the tide in favor of their side, Hansen asked the judges for a few minutes to discuss with Ennis if they in fact wanted to use that time.
Five minutes later they wisely returned for their 10 minute rebuttal and gave the final blows to a reeling statute, stressing that even if tagging did work, this compulsion to tag one's own speech as decent or indecent may be unconstitutional in itself.
The judges should hand down a decision soon.
A New Book on Free Speech in Cyberspace