he decision was instantaneous and unanimous: The Communications Decency Act is unconstitutional.
But though the judges wore robes and the proceedings began with cries of "Oyez! Oyez!" the outcome offered little cheer for the assembled audience of activists, lawyers, cypherpunks and "cybercops" at the Seventh Computers, Freedom and Privacy Conference in a hotel outside San Francisco airport: The decision wasn't real.
This was a "moot court," a kind of Sim-Supreme Court sponsored by the American Bar Association in which legal scholars rehearse a case's proceedings. The actual arguments in the CDA case take place Wednesday at the U.S. Supreme Court -- where the robes will be more confidently worn and the stakes will be unmistakably high.
The case, Reno vs. ACLU, is the Justice Department's appeal to overturn the landmark ruling by a three-judge panel in Philadelphia last June that declared the CDA unconstitutional. The CDA's provisions make it a felony to use electronic devices for the transmission or display of "indecent" or "patently offensive" material to minors.
The moot court proceedings, held last Thursday, followed the model of Supreme Court argument, in which lawyers begin with their prepared texts and are quickly derailed by interruptions from justices with tough questions about language, precedents, jurisdiction and consistency.
As a potential preview of the kinds of constitutional issues likely to arise at Wednesday's arguments, some of the tougher questions raised were:
- What if parents send indecent material to their own child as part of an educational process to teach the kid how to recognize different kinds of content online?
- If a particular expression is indecent but also involves political content, would that be outlawed by the CDA?
- One of the problems cited by opponents of the act is the undue burden it places on publishers to ascertain the age of recipients of their material. Would the availability of a free, easily accessible Web site that offered certification that a user was an adult make the CDA more constitutionally defensible?
- Are the standards of indecency the CDA enforces uniform nationally or do "local community standards" apply?
- Suppose there's a chat room for teenage rape victims in which the participants use indecent language. Could a very conservative person get into such a place and haul in a local prosecutor to shut it down under the CDA?
- Before Congress approved the CDA, didn't the Justice Department state that it believed existing laws were sufficient to protect minors on the Net?
The moot-court version of the government case to uphold the CDA argued that the act could be interpreted as aimed exclusively at commercial pornography vendors and could be legally defended as a form of zoning ordinance. The pro-CDA brief suggested that the act -- denounced by civil rights activists as an overly broad censorship law that would have a "chilling effect" on free speech online -- actually promotes freedom of speech on the Net by making parents and children feel safer in the new medium.
The real-world Supreme Court takes its time in issuing rulings after it hears arguments, but the moot judges offered an instant thumbs-down for the CDA. They called the "commercial-only" interpretation "highly creative" but rejected it; they cited the vagueness of the CDA's reference to indecency "in context," and its lack of provision for standards of "merit" in distinguishing protected forms of expression from outlawed speech.
In an introductory speech, Barry Steinhardt, associate director of the American Civil Liberties Union, predicted that the real court will also decide against the CDA: "It should be a slam-dunk next Wednesday." But, he added, nothing's guaranteed: "It's going to be a game of pick your paradigm. If the Supreme Court finds that the Net is like broadcasting, then we will probably lose." If, on the other hand, it agrees with the lower court that the Net is a powerful new medium with its own unique traits, "then we will almost certainly win."
Earlier at the Computers, Freedom and Privacy conference, Ira Magaziner, senior policy advisor to President Clinton, said that the document on Federal Internet policy he is drafting, due for release next month, will recommend against extensive regulation of the Net and will encourage private ratings initiatives rather than further "government censorship."
Answering hostile questions from the audience about the inconsistency of that statement with the Justice Department's pursuit of the CDA appeal, Magaziner repeated previous Clinton administration explanations that it must "uphold the law of the land." But he said if Congress passed another, similar law he would recommend that Clinton veto it: "I don't think it's a good act."
The annual Computers, Freedom and Privacy conference has become an unusual meeting ground where normally adversarial groups like hackers and FBI agents, cryptography experts and government officials mingle and exchange perspectives. This year's event took place in the shadow of the forthcoming CDA decision, but it also had its happier moments.
The Electronic Frontier Foundation gave its annual Pioneer Awards to Electronic Privacy Information Center founder Marc Rotenberg and to Julf Helsingius, Finnish provider of the well-known (and recently shut down) anonymous re-mailer service anon.penet.fi.
The EFF also gave a special award to actress Hedy Lamarr -- who, in addition to her career as Hollywood bombshell, turns out to have been a formidable inventor. The little-known chapter in communications history came to light thanks to a campaign on Lamarr's behalf by wireless activist Dave Hughes and others. During World War II, Lamarr and composer George Antheil registered a patent for a frequency-hopping approach to broadcasting that would become the basis for the "spread-spectrum" approach to wireless and satellite transmission. This technique is more and more widely used today to provide digital links in remote or undeveloped areas.
Lamarr, still alive in Florida, taped a message of thanks that was delivered by her son, Anthony Loder. Though she didn't weigh in on Net censorship, it's worth noting that some of her steamiest films -- like the 1933 "Ecstasy" -- would probably be outlawed on the Net under the CDA.