Countering many portrayals in mainstream media, fierce defenders of the Communications Decency Act say they are not all antiporn zealots.
That is the crux of the case that the Justice Department took before the Supreme Court today. The government wants the court to overturn a decision by a three-judge federal panel in Philadelphia last June, which blocked enforcement of the law on grounds that it was unconstitutional.
Deputy Solicitor General Seth Waxman holds that the CDA is constitutional because the First Amendment does not protect the right to distribute "indecent" material to minors. The Clinton administration supports the growth of the medium, government attorneys say, but without regulation most parents will reject the Net as unsafe entity.
"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 to be harmed by exposure to patently offensive sexually explicit material," the government's court brief states.
The American Civil Liberties Union and a coalition led by the American Library Association are fighting the law on behalf of free-speech advocates, civil rights groups, Internet companies, publishers, and Net users. Disputing their charges, the government contends that the CDA imposes only a small burden on adult communication online.
"Material that is legal for adults would not be taken off the Net. Adults would still have access to that if the CDA is upheld," said Dee Jepsen, president of Enough is Enough, an antiporn group that filed a supporting brief on behalf of the government.
"The issue here is not one of technology or any of the other group's issues. The issue here is protecting children, and their health and safety," she said. "In the past, the court has judged the government does have a compelling interest in protecting children, and I believe they will say that again."
Now that the CDA is facing the high court, some supporters acknowledge that a controversial provision of the law, which made it illegal to "display" indecent material to any person under 18, will likely be dismissed as too broad.
As written, opponents say the "display" provision could apply to conversations in chat rooms, material on Web sites, or postings in Usenet newsgroups on such topics as rape, safe sex, or gay and lesbian issues, all of which could fall under the definition of "indecency."
The CDA also made it felony to knowingly send indecent material to a "specific" minor.
"The 'transmission' to a 'specific child' and 'display' provisions for the Communications Decency Act of 1996 are facially constitutional," the Justice Department stated in its final brief filed March 7. "Even if the 'display' provision were unconstitutional in some of its applications, the CDA is governed by a clause that makes it clear if the application of a particular provision is invalid, the CDA should otherwise remain intact."
That argument appeared to leave the door open for the court to uphold only part of the law.
Indeed, this is not the only change in the government's position since the lower-court ruling in Philadelphia. In that case, the government's main defense of the CDA was that it was feasible and technologically possible to comply with the law--and, therefore, the law was not an unconstitutional burden on adults.
Adults can avoid prosecution by showing a good-faith effort to verify the age of people they communicate with online before displaying or sending "indecent" material, the government stated. According to the CDA, other defenses to prosecution include restricting access to material through credit card verification, adult-access accounts, or identification number systems.
Although government lawyers still say technology can protect adults from wrongful prosecution, its briefs to the Supreme Court have emphasized that "all three provisions constitutionally advance two overriding government interests--protecting children from the harmful effects of sexually explicit patently offensive communications and facilitating the First Amendment interest of parents with children in using the Internet and other interactive computer services."
Furthermore, the law's proponents say regulating indecency on the Net is no different from confining TV smut to late-night hours or checking the age of phone-sex customers.
"The CDA allows indecency to be available to adults 24 hours a day. It's most like dial-a-porn regulations, which say when children seek a dial-a-porn services, those services must verify age. The court upheld that law," said Cathy Cleaver, the director of legal policy for the Family Research Council. She wrote a brief supporting the government on behalf of pro-CDA members of Congress.
But the court didn't uphold the first version that law. In fact, Congress rewrote it several times before it was deemed constitutional. That's what most expect will happen with the CDA.
"We believe we're coming to the point that something will be done about indecency on the Net, " Jepsen said. "If the CDA isn't upheld, you can look for more legislation because parents are concerned and Congress is going to respond--the CDA was the first response."