Supreme Court Debates Internet Indecency Law

During a highly interactive, if old-fashioned courtroom argument Wednesday, the Supreme Court justices debated how to uphold some or all of a new federal law that makes it a crime to send pornography over the Internet.

Until now, a free-speech coalition of computer users and online carriers has succeeded in convincing lower courts that the government has no business in cyberspace. Last year, a three-judge panel in Philadelphia struck down the Communications Decency Act as unconstitutional, describing the Internet as a “never-ending worldwide conversation [that] deserves the highest protection from government intrusion.”

But in the Supreme Court on Wednesday, the attitude was quite different. Rather than focus on the wonders of the new medium, the justices homed in on a long-standing and familiar problem: how to keep adult pornography away from children. And most of them sounded inclined to uphold at least part of the law, passed in early 1996.

A Justice Department attorney set the tone for the discussion from the beginning.

The Internet “is a revolutionary advance in information technology,” said Deputy Solicitor General Seth P. Waxman, but it also “threatens to give every child a free pass into the equivalent of every adult bookstore and every adult video store in the country.”

Waxman urged the justices to uphold the law and put the burden on those who transmit pornography to find the means to screen it from children. “We think this is a small price to pay” to protect children from graphic pornography, he said.

Arguing the other side, Bruce J. Ennis, a respected 1st Amendment specialist, said that the law should be thrown out because those who put sexually explicit material on the Internet cannot easily prevent minors from seeing it.

For this reason, the new law “completely bans a vast amount of speech from the Web,” Ennis said. “The government cannot reduce the adult population to reading or viewing only what is appropriate for children.”

Chief Justice William H. Rehnquist and Justice Antonin Scalia, the court’s conservative leaders, repeatedly challenged Ennis.

For example, the lawyer argued that it would be “prohibitively expensive” for those who want to send material on the Internet to devise a coding system that would exclude minors.

“That’s a value-laden [description]. What is meant by prohibitively expensive?” Rehnquist asked.

The attorney explained that a large library would have to cull through its collection and code material that would be inappropriate for children. This would cost an estimated $3 million, he said.

“And that would be prohibitively expensive” for such a library? Rehnquist asked, obviously skeptical.

Ennis argued that it would be easier and more effective for parents to purchase software that costs about $30 to screen out sexually explicit material.

“Doesn’t the government have any interest [in also protecting] the kids who don’t have any parent there to watch over them?” asked Justice Anthony M. Kennedy.

Scalia picked up that theme, noting that the court often has upheld laws applying to radio, TV, magazines and--most recently--news racks that involve efforts to keep pornography away from children.

“We have said you can’t put this material into news racks where minors can get access to it. And [to the publishers] we say, ‘Tough luck! You have to sell it in stores,’ ” Scalia said.

But other members of the court made clear that they were troubled by the law and its potentially broad sweep.

Justice Stephen G. Breyer compared the Internet to a telephone. High school kids often talk about sex on the phone. Suppose they did the same over the Internet. “My concern is this would make large numbers of high school kids subject to a federal crime,” he said.

Kennedy wondered about a conversation on a street corner. If Congress can make it a crime to talk about sex via a computer when a minor is listening, “What about an indecent conversation on a public street where a minor is present?” he asked.

Waxman dodged the question, saying that it raised a much harder issue.

Justice David H. Souter noted that the law makes it a crime to “display” pornography on a computer that is seen by a minor. “Could the parent go to prison,” he asked, if a father or mother negligently allows a child to see sexually explicit material?

That is not the intent of the law, Waxman replied. “It is directed at the content provider,” he said.

The Justice Department attorney advised the court to write an opinion that makes clear it is not to be used for prosecuting parents.

That answer did not satisfy Justice Ruth Bader Ginsburg. She wondered whether the court should be “tinkering” with laws and rewriting them to make them constitutional.

They will meet privately to discuss the case (Reno vs. American Civil Liberties Union, 96-511) Friday. After that, they have about three months to write an opinion.