In the latest chapter of the saga that is the Communications Decency Act, the ACLU, the American Library Association, and the Citizens Internet Empowerment Coalition filed briefs Thursday with the Supreme Court arguing that the high court should uphold a lower court's decision that the CDA is ineffective, vague, and unconstitutional.
"The 'indecent' and 'patently offensive' provisions of the CDA are unquestionably content-based bans on protected speech and thus are presumptively unconstitutional," the ACLU argues in its brief.
The challengers to the CDA maintain that there are far more efficient methods for parents to monitor indecent material on the Internet - such as blocking software - than a sweeping ban on free speech as prescribed by Congress in the CDA, which became law last February.
"User-based screening technologies and public education are far more narrowly tailored means of addressing any parental concern over sexually oriented content on the Internet than a criminal ban which prohibits adults from gaining access to constitutionally protected speech," the ACLU brief says.
The CDA criminalizes the act of engaging in speech that is "indecent" or "patently offensive" on computer networks if the speech can be viewed by a minor. Offenders can face up to two years in jail and fines of US$250,000.
"Everything from online sex education, medical information, literature, art, music, and politics to everyday discourse may contain content of sexual or 'vulgar' nature," argues the ALA and CIEC in their brief. CIEC is an informal coalition of plaintiffs, including AOL, the Center for Democracy and Technology, and Wired magazine.
Last spring, a US district court in Philadelphia found the CDA unconstitutional, concluding that the law "would necessarily reduce the speech available to adults on the medium." The government quickly appealed the decision, and the Supreme Court in November agreed to hear the case.
"Unlike the Philadelphia case, we are not going to have an opportunity to give the court an online demonstration," said David Sobel of the Electronic Privacy Information Center, which co-submitted the ACLU brief. "One of the challenges is passing on knowledge of this complicated technology in limited pages and just a half-hour of oral arguments."
Characterizing chat room and newsgroup banter as just "as fleeting as conversations on a street corner," the ACLU argues that the CDA puts millions of Net users at risk of prosecution for merely engaging in online conversation, and that the law would cause adult Net users to self-censor their speech and thus stunt the growth of the online world.
But the Justice Department, in its brief to the high court filed in January, maintains that the CDA upholds First Amendment rights. The government's brief states that "much of the Internet's potential as an educational and informational resource will be wasted ... because [people] do not want their children harmed by exposure to patently offensive sexually explicit material."
The challengers' briefs slam the government's argument that age verification is a viable means of restricting kids from accessing indecent material online. They argue that there currently exists no clear technology for age verification, and that the idea of verifying someone's age underscores a lack of understanding of what the Internet - and Net communities - are.
"The centerpiece of our argument is that the Net is different from broadcasting," said Jonah Seiger of the Center for Democracy and Technology. "Online users have more control over the content they receive than in any other medium."
The government will likely file a reply brief with the court on 7 March. Oral arguments are scheduled for 19 March.
