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The CDA question is moot

A panel of judges renders a decision on the Communications Decency Act: It's unconstitutional. The ruling, however, doesn't count.

SAN FRANCISCO--Cloaked in distinguished-looking black robes, a panel of judges stared down at attorneys arguing the Communications Decency Act today and issued their unequivocal decision: The law is unconstitutional.

The ruling, however, doesn't count. The judges were only acting as part of a "moot court" held by the American Bar Association at the seventh Computers, Freedom and Privacy Conference.

The real proceedings will take place Wednesday in Washington when the Supreme Court will hear the landmark case. But today's drill touched on many of the constitutional issues facing the high court while giving insight into how the justices may eventually rule on the CDA.

The controversial law was signed by President Clinton on February 8 last year and made it a felony to knowingly transmit or display indecent material to minors over the Net.

Sticking to the fantasy, the judges grilled real-life attorneys, who were impersonating counsel for the Justice Department and the challengers of the law, a coalition led by the American Civil Liberties Union and the American Library Association.

Today's counsel used actual Supreme Court briefs to make their cases. However, the judges returned a ruling moments after the arguments, which is rare in actuality. The Honorable Marvin Baxter abstained, as he is really a justice for the California Supreme Court. The other four "justices" teach law at universities across the nation.

Three of the four ruling justices said the CDA is unconstitutional because it contains no clear test for "indecency" and is overly broad, infringing on the speech of educational groups and nonprofits. Although University of Miami law professor Michael Froomkin said the "transmission" provision was narrow enough to be upheld, overall the majority opinion was that law was too great a burden on First Amendment rights.

"What is indecency?" asked Pamela Samuelson, a professor at Boalt Hall School of Law of the University of California at Berkeley, in her opinion to throw out the CDA. "A 'lack of merit' [test for material] is not named. This is unconstitutional because 'indecency' is too broad."

Another panelist, Lawrence Lessig, a professor at the University of Chicago Law School, said although he hated the law, he thought the court could find it constitutional if it were narrowly tailored to only affect commercial pornography, a promise the government made in the moot court.

Tom Guidoboni, an attorney for Michaels, Wishner & Bonner, played the government lawyer. After being quizzed by justices, he said the CDA only would apply to commercial pornography. Such a provision is not laid out in the statute but is a tactic the government could take next week in an effort to sway the Supreme Court's interpretation of the law as constitutional.

Margaret Jane Radin, a professor at Stanford Law School, who also ruled against the CDA, said in her decision that the court wouldn't go that far. "The court would have to be too creative to apply it only in the commercial context."

As will happen with the actual hearing, the mock trial was an hour long, splitting the time between both sides. Before the landmark case, however, justices will review the lower court's decision and briefs from the government, ACLU, and ALA before the hearing.

The government admitted that the "display" provision infringed on adults the most. For example, an adult who put "indecent" material on his Web page would have to verify visitors' ages or risk prosecution.

The lead lawyer for the challenging side was Mark Rasch, who is the director of law and policy the Science Applications International Corporation. Rasch went after the display provision early on, as well as the broadness of the term "indecency."

"Indecent speech is protected. Obscenity is not always protected," he said. "The idea of artistic value and or educational merit are not held in indecency, like it is the obscenity test."