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It's decision time on Net free speech

The trial that could determine the definition of free speech on the Internet is drawing to a close. Now it's decision time.

PHILADELPHIA--The trial that could determine the definition of free speech on the Internet drew to a close today in a federal district courtroom here. Now it's decision time.

A three-judge panel--Chief Judge Dolores Sloviter, Judge Stewart Dalzell, and Judge Ronald Buckwalter--heard final oral arguments from the plaintiffs this morning in the case of ACLU vs. Janet Reno, a suit filed in February in an effort to overturn the Communications Decency Act, which criminalizes the posting of material deemed indecent or patently offensive on the Internet. If the CDA stands, violators will face up to two years in prison and $250,000 in fines.

It was not known when the panel will render its decision. Sloviter would say only that "you will hear from us in due course."

Regardless of the ruling, observers have speculated that the decision is likely to be appealed to the Supreme Court. But Sloviter said today that "we are not sure the Supreme Court will take this."

Jason Baron gave oral arguments for the government but didn't offer an extensive presentation. He mostly answered questions.

"Doesn't the record show we don't need a CDA for parental control access?" asked Dalzell, the parent of a 10-year-old, saying that he would use some kind of parental control software regardless of the law.

"The two sides are not clashing on facts that there are parental controls," Baron replied. "But we have shown that the third-party software mechanisms just can't keep up, and there is a tremendous amount of material that will seep through."

The government has on its own behalf proposed three different ways to block access that it said would be superior to the existing technology: requiring sites to ask for credit card numbers before releasing content to confirm age and identification; requiring sites ask visitors their age before letting them log on; and requiring sites to include tags in their Web addresses if they contain possibly objectionable content.

The plaintiffs argued that all three solutions were technologically unfeasible, saying: lots of sites offer free content; anyone could lie about their age; and tags wouldn't stop a 12-year-old from looking.

The judges seemed to agree. Sloviter said to Baron: "You're asking us to sustain a bill on technologies that don't exist. Until it exists it isn't working, and until it works we won't know how well it will work."

Earlier, lawyers for the plaintiff, Chris Hansen representing the American Civil Liberties Union (ACLU) and Bruce Ennis for the American Library Association (ALA), hammered home their final points this morning: that the Internet is its own medium, different from both print and broadcast; that any such government regulations are unconstitutional because they violate free speech protections; that technology exists to let parents control Net access themselves and makes such regulations unnecessary; and that governing Internet content is technologically impossible.

"We take the position that interactive computer services, unlike broadcast, radio, or print, allow the listener to choose and select where they are going to go," Ennis said.

Hansen also stressed that the definition of what constitutes indecent or patently offensive material is unclear and hard to regulate for a medium that is both interstate and international. The point seemed to capture the attention of the judges, who quizzed Justice Department lawyer Tony Coppolino extensively about how community standards can be applied to material that is available everywhere in the United States at the same time.

For example, one judge cited Angels in America, a play about the AIDS epidemic, which is enormously popular on Broadway but might be found offensive in Lancaster, Pennsylania.

"If someone took an excerpt from that play and emailed it to someone else, could that be indecent?" one judge asked.

"It might be," Coppolino replied. "This is possible that something that is serious can also be indecent."

Although the government will make its final arguments this afternoon, Coppolino alluded to the government's main argument that the Internet is more analogous to broadcast media than print media and that its content should be regulated as a broadcast medium.

When pressed about his definition of indecent, however, Coppolino replied that it covers a narrow category of speech, "communication which describes sexual activity or excretory organs in a patently offensive way." This definition was already rejected as too vague in an earlier ruling by Buckwalter.

Coppolino did say in response to questions that the "F word" and nude photos would not be considered indecent, nor would information about contraception. "It's very difficult to explain," replied Coppolino to repeated requests for a more specific definition. "It is a very narrow category of speech."

The plaintiffs also focused on the issue of deciding who would have jurisdiction over Internet content. They claimed that 50 percent of sexual content on the Web is posted overseas in countries not subject to American laws. Even within the United States, the judges asked Coppolino, who would have jurisdiction over deciding what is indecent material?

"Indecency will be judged on a community basis where indecency is an issue," Coppolino said. But when asked who would decide that question, Coppolino replied: "There is no indication that you're subject to prosecution where your site is."

The plaintiffs also reminded the judges of testimony about new parental control software and other filtering technology like the PICS standard approved this week by the World Wide Web Consortium. The ALA's Ennis argued that such technology is not only sufficient to let parents police Net content themselves, but also will still be necessary if the law remains in effect.

"This law gives the wrong signal to parents. The law says parents don't need to worry, but in fact parents do need to worry. They will learn that they have effective devices, but they have to use them. This act does nothing, or at most a marginal amount, to protect children from indecent speech, and that marginal benefit comes at the expense of taking away constitutional rights from adults," Ennis said.

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