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Government fires shot on CDA

The Justice Department files its first brief in an effort to convince the Supreme Court that the Communications Decency Act is constitutional.

The Justice Department today made its first move in a legal battle to convince the Supreme Court that the Communications Decency Act is constitutionally valid.

The government filed a 60-page brief, its first since the high court decided December 9 to hear the case. The Supreme Court hearings are expected to start March 19.

Today's brief, delivered by Acting Solicitor General Walter Dellinger, established the government's basic argument: that the CDA is constitional because the First Amendment does not protect a right to distribute pornography to minors. Not only that, but the CDA protects the First Amendment because without it many users will turn away from the Net as a communications medium.

"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 brief stated.

The government's appeal is being challenged by the American Civil Liberties Union and the Citizens Internet Empowerment Coalition, which represents Internet users industry groups.

The fight between the ACLU and the government over the CDA case has been viewed by many as the definitive case to determine the future of free speech on the Internet.

Both groups filed suits against the CDA in Philadelphia immediately after the law was enacted last February. The ACLU and other civil-rights groups will deliver their responding brief on February 20.

The CDA opponents charge that law's language is overly broad and violates First Amendment free speech protections. Moreover, they argue, the Internet is so large and complex that the law is unenforceable.

In June, a panel of three judges in a Philadelphia federal court ruled that the CDA is unconstitutional and granted a preliminary injunction against enforcement of the law. The Justice Department quickly appealed the decision to the Supreme Court.

In the brief, the Justice Department posed the following arguments:

  • Children generally can't make informed choices about whether to view indecent material. Because such speech may have harmful effects on children, it should not be protected by the First Amendment.

  • The government has the right to censor certain indecent material because the interest of protecting children supersedes the adult right to have access to such content. The law does not ban the dissemination of all indecent material to adults.

  • People can post indecent material on the Internet as long as they control access to it. One option is requiring proof of identification through a credit card.

    "Because there is no First Amendment right to disseminate indecent material to children, the transmission and specific child provisions must be upheld," the filing said.

    The CDA came into being as Section 507 of sweeping telecommunications reform legislation. It makes it illegal to knowingly transmit "indecent" material using forums accessible to minors such as the Internet. Violators risk a sentence of up to two years in prison and a $250,000 fine.