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DOJ files brief to defend CDA

Sticking to its guns, the Justice Department says in its final Supreme Court brief that the Communications Decency Act constitutionally protects kids from Internet smut.

The Justice Department is sticking to its guns: It said today in its final Supreme Court brief that the Communications Decency Act provides a constitutional protection for kids against smut on the Net.

Echoing many arguments from its initial filing on January 21, the government's brief refutes the American Civil Liberties Group and American Library Association's claims that the law is too broad and violates the First Amendment. Both groups represent coalitions in the legal fight against the CDA, and submitted their own final briefs February 20.

The next step is to argue the case before the high court, which will hold its historic hearing on March 19. The case may determine the future of free speech on the Net.

The government is pushing the court to uphold the CDA's provision that made sending or showing indecent material to minors over the Net punishable by two years in jail and a $250,000 fine. Overall, the government maintains that protecting children from sexually explicit material supersedes the adult right to have access to such content.

"The 'transmission' to a 'specific child' and 'display' provisions for the Communications Decency Act of 1996 are facially constitutional," the government brief states. "All three provisions constitutionally advance two overriding government interests: protecting children from harmful effects of sexually explicit, patently offensive communications, and facilitating the First Amendment interest of parents and children in using the Internet and other computer services."

The ACLU and ALA, on the other hand, argue that the CDA violates adults' free speech rights and is unenforceable to boot. The two organizations filed lawsuits against the Justice Department last February and prevailed in Philadelphia last June when a federal court ruled that the law was unconstitutional. The government appealed the ruling shortly after.

The ACLU says the term "indecent" could include any mention of sex or sexual organs and that the CDA criminalizes protected adult speech--in newsgroups, email, chat rooms, commercial online services, and the Web--about such topics as AIDS, safe sex practices, rape, gay and lesbian issues, and human rights.

The government says it's completely natural to ask Web sites to account for their accessibility to children: "In daily life, adults having sexually explicit conversation ordinarily would not think of continuing the conversation when a child walked into the room and could overhear what was being said."

David Sobel, cocounsel for the ACLU, said the government is trying to persuade the court to ignore the argument that the law is constitutionally overbroad and vague. Instead, he said, the government wants the court to bypass concerns about the scope of the law and instead focus on its intent to protect kids.

In the Philadelphia case, the government argued that Netizens would not be prosecuted if they showed a "good faith" effort to prevent minors from accessing "indecent" material contained in speech, Web sites, or emails facilitated by adults. Today's brief also pointed to theoretical technology to explain how the law can be legally enforced, noting, for example, that credit card verification could be used to check the ages of Net users.

The ACLU argues, however, that minors can have credit cards and that it's not possible to ask every Web site to verify age without violating First Amendment rights.

The ALA says that in fact, it's technology that makes the CDA unnecessary since parents can use readily available screening software to weed out undesirable sites.

The government says that the filtering software just isn't enough. Parents will have an easier time monitoring TV than Internet surfing.

"The amount of indecent material on the Internet is staggering, and many children have a strong proclivity to seek it out. Parents who check which television shows their children are watching may simply not have the time or patience to watch their children conduct extended Internet searches," it stated.

The government claims that the CDA is protecting the growth of the Internet by making it a medium that parents won't be afraid of.

"The display [of indecent material] provision is also addressed to the danger that parents will be deterred from bringing the Internet into their homes because of a concern for their children," the brief states. "That danger is one step further removed from the impact of the communication on adults, and is even more clearly a secondary effect."

The ACLU and the ALA group, known as the Citizens Internet Empowerment Coalition, said they weren't surprised by the government's rebuttal to their separate briefs.

Bruce Ennis will represent both the ACLU and the ALA in the Supreme Court. The ACLU assembly represents nonprofit groups such as the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the Planned Parenthood Federation of America. The ALA coalition represent commercial interests such as Microsoft and America Online, as well as publishers, libraries, and Net users.