Supreme Court likely to affirm ruling

If it takes the case of ACLU vs. Janet Reno on appeal, the U.S. Supreme Court is likely to agree that the Communications Decency Act is unconstitutional.

Mike Yamamoto Staff Writer, CNET News.com
Mike Yamamoto is an executive editor for CNET News.com.
Mike Yamamoto
5 min read
If it agrees to hear ACLU vs. Janet Reno on appeal, the U.S. Supreme Court would likely affirm today's ruling and reject the Communications Decency Act as unconstitutional, according to several legal analysts and First Amendment scholars.

Many experts believe that the high court would find the CDA impossible to enforce without draconian measures that would unconstitutionally impede the right to free speech. Moreover, they say, the justices on this particular court have demonstrated a decidedly libertarian bent in recent cases involving First Amendment issues.

"If the effect is to restrict access that one is constitutionally entitled to see, then I think government has to work harder on finding a way to limit children's access while not restricting adult access," said David Post, co-director of the Cyberspace Law Institute and visiting associate professor at Georgetown University Law Center. "You can't burn down the house to roast the pig."

Other experts say the justices may not accept the case at all, particularly if they find the special three-judge panel's ruling in Philadelphia lucid and compelling. In addition, although supporters of the CDA promised to press for an appeal, Justice Department attorneys today did not indicate what their next step would be.

The Communications Decency Act makes it illegal to make indecent or patently offensive material accessible to minors online. The law was enacted in February as part of the Telecommunications Act of 1996, but the Justice Deparment agreed not to prosecute anyone under the statute until the ACLU vs. Reno was decided.

If the case does reach the Supreme Court, analysts say the CDA's constitutionality on grounds of indecency would not be called into question; that standard, they say, has been upheld repeatedly for nearly three decades ever since the landmark case of Ginsburg vs. the State of New York in 1968, which defined the term indecent as "patently offensive under contemporary community standards." What would be examined, however, is whether that standard can be applied with the least restrictive means to ensure the rights of the First Amendment.

The only way to achieve the conflicting goals of absolute free speech and protection from offensive material, Post and others say, is to devise technology sophisticated and accessible enough to be used by the estimated millions of people who use the Internet. According to several expert witnesses who have testified to date, such technology does not exist.

Proponents of the decency law argue that adequate filtering software is indeed possible--but that it is not being pursued vigorously because it does not coincide with the commercial interests of Silicon Valley and the liberal politics of university researchers. That point was underscored repeatedly during proceedings in Philadelphia federal court, CDA supporters say.

"The government was at a disadvantage because the industry ganged up and sided with the plaintiffs," said Bruce Taylor, president and chief counsel of the National Law Center for Children and Families. "They said, 'You can't do it because we didn't want to program the Internet that way. And if we can't do it, you can't do it.'"

The court, however, offered a different explanation. The three proposed means of blocking children's access--credit card identification, password verification, and HTML "tagging"--were a "burden one should not have to bear in order to transmit information protected under the Constitution," Judge Dolores Sloviter wrote in her portion of the decision.

Software aside, there remains yet another obstacle standing in the way of the law's survival: the high court's increasingly libertarian inclination on matters regarding the First Amendment. In recent years, the court has consistently ruled against any possible infringements on free speech in a number of diverse cases:

--In the 1995 case of Capitol Square Review and Advisory Board vs. Pinette, the court ruled that the Ku Klux Klan's First Amendment rights had been abridged when the state of Ohio turned down a request to display an unattended cross in a square near the state Capitol building. The state argued that the proximity of the display to the Capitol constituted an endorsement of the Klan's message and denied the permit. But the court ruled that the state could not ban private religious speech based on "misperception of official endorsement."

--Also in 1995, the justices overturned a lower-court ruling in Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which organizers of the annual St. Patrick's Day Parade tried to prevent a certain individuals from marching in the event because of their sexual orientation. The justices ruled that the organizers "clearly decided to exclude a message it did not like" and that participants in the public event therefore are protected by the First Amendment.

--In Sable Communications vs. FCC in 1989, the court addressed questions involving the regulation of speech in phone sex services. The justices held that "sexual expression which is indecent...is protected by the First Amendment" and stipulated that the government may regulate such speech only when there is a compelling state interest and if it uses the least restrictive means to enforce those regulations.

"As the court has become more conservative politically, it also has developed something of a libertarian streak. So you have a conservative court still protective of First Amendment values--Justices [Antonin] Scalia and [Anthony] Kennedy, in particular," said William Banks, professor of law at Syracuse University. "This is a great case for libertarians. I don't think any of them are likely to uphold this."

Yet the legal uncertainty over the relatively unexplored territory of cyberspace precludes any definitive predictions. More than a few legal scholars point to another case as a roadmap for the CDA proceedings, Turner Broadcasting System vs. FCC, because it involves a broadcast medium--perhaps the closest thing to the Internet that the Supreme Court has seen.

Even there, however, the justices appeared to be on unfamiliar ground in supporting so-called "public access" cable television channels. Roger Pilon, director of the Center for Constitutional Studies at the conservative Cato Institute, said the resulting decision was an utter "hodgepodge" of legal opinion.

Others note that, even in the best of circumstances, forecasting high court decisions is a dangerous game--and it gets exponentially more complicated when the Internet comes into play. "Nobody can predict what the Supreme Court will do," Post said, "because they have not dealt with this medium."

Related stories:
Browsers to help parents monitor Net
Censoring cybersmut: what happens now?
Second take on Net content control
Indecent is in, obscene is out
Will you be censored?

[C|NET SPECIAL REPORT: Internet begins self-regulation | Communications Decency Act rejected | Decision may not be appealed | CDA supporters vow fight | Netizens rejoice on newsgroups | Timeline tracks law's path | Attorneys interviewed on CNET radio]

The full text of the Communications Decency Act ruling is available on the Electronic Privacy Information Center and the ACLU Web sites. A complete listing of recent First Amendment and other cases decided by the Supreme Court is available through a searchable index maintained by Case Western Reserve. An archive of RealAudio files of Supreme Court oral arguments and opinions can be heard at Northwestern University's Academic Technologies Department.