Quietly and without much fanfare, the battle between Internet free-speech advocates and the US government resumed this week as Justice Department lawyers filed their first Supreme Court brief - part of their appeal of a lower court ruling that declared the Communications Decency Act unconstitutional.
The 14,000-word brief - a dry, legal document which reads with all the passion of a coroner's report - offered several insights into the strategy the government plans to pursue in defending the provisions of the 1996 legislation, which criminalized online display of "indecent" material in a manner available to Net users under age 18.
A coalition of plaintiffs, including the American Civil Liberties Union, the Citizens Internet Empowerment Coalition, and Wired Ventures has joined to oppose the Justice Department's appeal of the lower court's ruling on the CDA.
The government's defense of the CDA begins with a strangely paradoxical argument that Internet censorship represents an effective way to uphold the free-speech ideals enshrined in the First Amendment.
"Parents and their children have a First Amendment right to receive information and acquire knowledge, and the Internet has unmatched potential to facilitate that interest," the government's brief states. "Much of the Internet's potential as an educational and informational resource will be wasted, however, if people are unwilling to avail themselves of its benefits because they do not want their children harmed by exposure to patently offensive sexually explicit material."
Citing a 1968 court ruling to justify the CDA's prohibitions on the display of "indecent" material, the government's brief also argues that "those provisions are essentially no different from the prohibition on the sale of indecent material to minors upheld in Ginsberg v. New York. Like that prohibition, the transmission and specific child provisions directly prevent the dissemination of indecent material to children without prohibiting adult access to that material. Because there is no First Amendment right to disseminate indecent material to children, the transmission and specific child provisions must be upheld."
Plaintiffs have long argued that no economically viable systems currently exist that enable noncommercial or free subscription Internet publishers to verify the age of individuals who may receive potentially "indecent" online materials.
In their brief, Justice Department lawyers address these concerns, although they offer few insights as to how the problem of age verification for could be resolved.
"Those who post indecent material on Web sites for commercial purposes can ensure that only adults have access to their material by requiring a credit card number or an adult ID," the brief states. "Similarly, operators of noncommercial Web sites can use adult verification services for that purpose ... As technology evolves, the opportunities for adult-to-adult communication of indecent material will expand even further."
In an effort to counter a lower court ruling that the CDA's speech restrictions are unconstitutionally vague, the Justice Department's brief states that "the historical meaning of the CDA's indecency definition and the CDA's legislative history indicate that the kind of graphic pictures that appear in soft-porn and hard-core porn magazines almost always would be covered, while material having scientific, educational, or news value almost always would not be covered."
Chris Hansen, an ACLU attorney and member of the legal team opposing the CDA, expressed dismay the government's arguments.
"It is supremely ironic that the government now says it is protecting the First Amendment rights of Americans by threatening people," Hansen said. "The government is now arguing for broader powers to suppress speech than they sought in the [lower] court. These arguments are unsupported by existing law and the facts are unsupported by the record."
The CDA defines restricted speech as material that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."
The Supreme Court plans to hear oral arguments in the case, Reno v. ACLU, on 19 March.
