Anthony Coppolino and Jason Baron representing Janet Reno and the Department of Justice
21 THE COURT CLERK: Court is now in session, please be
22 seated.
23 MR. COPPOLINO: Good morning, your Honors.
24 JUDGE DALZELL: Good morning, Mr. Coppolino.
25 MR. COPPOLINO: Your Honors, just first by way of a
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1 couple of procedural points, whatever the Court's wishes are
2 in terms of our having rebuttal time, if you would permit us
3 I would reserve ten minutes if you could --
4 JUDGE SLOVITER: Why would you have rebuttal time?
5 MR. COPPOLINO: Well, that's -- if you want them to
6 have the last word then that's fine with me.
7 JUDGE SLOVITER: No, that's not the question as to
8 whether we want them to have the last word, you didn't call
9 it, this is not an appeal, you didn't cross-appeal.
10 MR. COPPOLINO: I understand.
11 JUDGE SLOVITER: And I didn't understand the whole
12 thing about surrebuttal.
13 JUDGE DALZELL: There's no counterclaim, at least
14 that I've seen.
15 MR. COPPOLINO: Okay, then forget that then. I
16 think --
17 JUDGE SLOVITER: Good try.
18 (Laughter.)
19 MR. COPPOLINO: I had to try.
20 That being the case, Mr. Baron and I will divide the
21 argument essentially along the lines that Mr. Hansen and Mr.
22 Ennis divided it. I do expect that I will cross over a bit
23 into Mr. Ennis' area to talk about the safe harbor defense
24 concerning credit cards and access codes and the parental
25 control software is the least restrictive alternative with
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1 respect to that.
2 Given the amount of time we have, you know, I would
3 expect to go for about an hour on my time and then Mr. Baron
4 would have about an hour thereafter.
5 JUDGE SLOVITER: You will forgive us if we don't
6 keep in our minds what the break of the -- of you both is and
7 if we ask you questions that -- I'd rather you not say well,
8 Mr. Baron's going to handle that. It's the frustration of
9 having two arguers rather than having one that you can do
10 unless it's something that really Mr. Baron promises to get
11 to.
12 MR. COPPOLINO: Yes. Well, the only area, I think
13 it's a very discrete area having to do with the defenses for
14 the non-commercial providers concerning tagging, labeling--
15 JUDGE SLOVITER: Yes.
16 MR. COPPOLINO: -- registering, Dr. Olsen's areas,
17 there's some crossover. And I'll, if I feel like he could
18 have the better handle on it, I'll just --
19 JUDGE SLOVITER: Okay.
20 MR. COPPOLINO: -- so indicate.
21 JUDGE SLOVITER: Are you finished the procedure?
22 MR. COPPOLINO: Yes, I am, your Honor.
23 JUDGE SLOVITER: Good. Mr. Coppolino, I would like
24 to know because I'm not satisfied that I fully understand at
25 this point what is the Government's position as to what the
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1 statute, A and D, let's leave aside C, what the statute
2 covers.
3 MR. COPPOLINO: I take it by your question, your
4 Honor, you are specifically asking about the indecency
5 standard, what types of speech it covers.
6 JUDGE SLOVITER: No, I'm asking about -- that's my
7 second question which is whether they really are the same
8 thing, but what do you understand -- I read your brief very
9 carefully, I even indexed it all myself, no law clerks, what
10 do you --
11 (Laughter.)
12 JUDGE SLOVITER: -- what is your position as to what
13 is covered by the statute?
14 MR. COPPOLINO: The statute, I -- I would say on its
15 face covers indecent, that is patently offensive
16 communications over a telecommunications device in 223(A) and
17 an interactive computer service in 223(D). And therefore it
18 could cover communications across various media, Web sites,
19 Usenet groups and so on that might be within that standard of
20 patently offensive. So --
21 JUDGE SLOVITER: And is that the way we have to read
22 the statute?
23 MR. COPPOLINO: I don't think that's the way you
24 necessarily have to construe it and I think as you may
25 discern from our brief an important point we would make to
80
1 the Court, principally in connection with the substantial
2 over-breadth argument is that if there are some applications
3 that give the cause concern that the Court would have to look
4 to whether the plainly legitimate sweep of the statute is
5 substantial or whether the applications that you consider
6 might be unconstitutional are substantial in comparison to
7 the plainly legitimate sweep.
8 I'm jumping ahead a bit, but --
9 JUDGE SLOVITER: No, well, but I think we have to
10 get, because everything else will follow, I assume everything
11 else follows from what you claim is covered.
12 Now, do you claim -- I'm going to ask you a series
13 of questions if my colleagues will permit because -- do you
14 claim that A and D, the patently offensive and the indecent
15 provisions are the same?
16 MR. COPPOLINO: Yes, I do, your Honor.
17 JUDGE SLOVITER: Now, then I want to know if that's
18 so, I mean how can you do that in light of the language? For
19 example, D talks in terms of communications that describe
20 sexual or excretory activities or organs. Is that anywhere
21 in A?
22 MR. COPPOLINO: It is not specifically defined in A.
23 Here is my position on that --
24 JUDGE SLOVITER: Yes.
25 MR. COPPOLINO: -- point, your Honor. Our position
81
1 is that as the courts have construed the term indecent or
2 indecency, that the meaning for that term, the standard, if
3 you will, has been communications which in context describe
4 sexual or excretory activities or organs in a patently
5 offensive way.
6 In Pacifica case, for example, the standard, the
7 statute at issue specifically used the word "indecent."
8 That's all that it had. And the FCC interpreted the standard
9 to mean patently offensive communications of sexual or
10 excretory activities in every other case that has interpreted
11 the decency standard has interpreted it to mean that. So
12 that's our position.
13 JUDGE SLOVITER: Yeah, but --
14 JUDGE BUCKWALTER: Okay, you have the same -- I know
15 you have the same question, I guess.
16 JUDGE SLOVITER: Go ahead, you go ahead.
17 JUDGE BUCKWALTER: There's -- there's no other act
18 though quite like this one, is there, where you have in the
19 one section the indecent and in another totally different
20 section dealing with a totally different subject because
21 you're not dealing with telecommunications in D, you're
22 dealing with interactive computer. You have a totally
23 different prohibition, okay? So there's nothing quite like
24 this before, has there?
25 MR. COPPOLINO: No, there's nothing quite like this
82
1 statute before, no, your Honor.
2 There is -- there is --
3 JUDGE BUCKWALTER: I guess that's a --
4 MR. COPPOLINO: I don't think it's totally different
5 though, Judge. I would say that, as we had a separate brief
6 on this issue of what is the difference between
7 telecommunica-- telecommunications device and interactive
8 computer service and I --
9 JUDGE BUCKWALTER: But the statute itself says
10 something, doesn't it, or did I misread that, that the
11 interactive computer is not telecommunications?
12 MR. COPPOLINO: It's not, it's not
13 telecommunications device, but the point I was going to make
14 is that a transmission of a communication all through the use
15 of a modem, say, over a computer system would be covered by
16 A, and therefore we don't think it's that different.
17 I recognize there are some -- there are some
18 legislative craftsmanship problem here in that they didn't,
19 didn't have a separate section which says definition indecent
20 or so on, but I think there is so much case law --
21 JUDGE BUCKWALTER: You might not even have to have
22 that if you didn't have two different, plain different words
23 there.
24 JUDGE DALZELL: But doesn't the conference report
25 make it clear that they do have the same meaning?
83
1 MR. COPPOLINO: I think so, your Honor. I think--
2 JUDGE DALZELL: Because the conference report makes
3 it absolutely clear that these terms are taken from Pacifica
4 and Sable, doesn't it?
5 MR. COPPOLINO: Well, I think it does, it referred
6 to the definition of indecency as its been con-- as its been
7 construed in Pacifica and Sable.
8 JUDGE SLOVITER: Well, I want the Government's
9 position. I mean we'll get each other's, yeah, afterward.
10 MR. COPPOLINO: That is our position. That is our
11 position, that when we are talking about the indecency
12 standard in 223(A), the word "indecent" or the patently
13 offensive provision in 223(D), we are talking about the
14 indecency standard as it has been construed and understood by
15 the Courts from Pacifica, Sable, the Dial-A-Porn cases and so
16 on.
17 JUDGE SLOVITER: So you want us to write into A the
18 words describing sexual or excretory activities or organs?
19 MR. COPPOLINO: Well, yes, your Honor.
20 THE COURT: But they're not in there.
21 MR. COPPOLINO: Yeah, I -- I don't think that is an
22 enormous task of statutory construction based on our
23 representation as well as the legislative history but yes --
24 JUDGE SLOVITER: Well --
25 MR. COPPOLINO: -- I think you should interpret
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1 indecent in A as patently offensive descriptions of sexual or
2 excretory activities. I don't know how else it would be --
3 JUDGE SLOVITER: Does that give notice to the
4 required notice in a criminal statute to all the people who
5 may be subject to this?
6 MR. COPPOLINO: I think it -- I think it certainly
7 would give substantial notice because obviously as part of
8 the process we have a legislative process and we have a
9 process whereby the Federal Courts undertake a constitutional
10 interpretation of it and I think that that interpretation
11 just on that point would be fully consistent with a broad
12 array of case law discussing the indecency standard and what
13 that standard specifically means, particularly where I don't
14 think there's any disagreement between the parties and I
15 don't think that there is any case law to suggest that there
16 would be some different meaning to the word indecent in
17 isolation.
18 JUDGE SLOVITER: Okay. And you want us also, as I
19 read your brief, to read the statute to have a built-in
20 exception for works of value. Let me -- that's a sort of a
21 paraphrase of what your brief says. Is that correct?
22 MR. COPPOLINO: I'm sorry, I can't really agree with
23 that characterization, your Honor, it's too broad an issue.
24 And if I could just try to explain it, I would --
25 JUDGE SLOVITER: Sure, I would certainly like to
85
1 hear that -- keep to that in light of the legislative
2 history--
3 MR. COPPOLINO: Yes, I will do that.
4 JUDGE SLOVITER: -- which says we won't accept such
5 a exemption.
6 MR. COPPOLINO: Yes, I understand, I understand your
7 question and let me try to get to it as directly as I can. I
8 think that obviously the first major line of attacks by the
9 plaintiffs in trying to demonstrate that the statute
10 effectively bans speech is not only that it's over-broad
11 across applications but the indecency standard covers a broad
12 array of speech.
13 And while arguing at the same time that we are
14 trying to narrowly construe it, that we have equated it to
15 pornography, that is really not what we have attempted to do.
16 We are asking the Court to construe that standard in the
17 context in which it's been applied by Congress and upheld by
18 the courts.
19 For example, it has been applied by Congress in
20 regulating Dial-A-Porn, it has been applied by Congress in
21 regulating cable and leased access television to materials
22 that clearly constitute the type of sexually explicit
23 materials that one could characterize as pornography.
24 And our point is that it's not simply anything about
25 sex or anything with an expletive, the parameters are fairly
86
1 specific. It has to first concern sexual or excretory
2 activities, not just any kind but patently or obviously
3 offensive material. Now, that can include pornography. It
4 can also include what we would consider to be shocking,
5 offensive or vulgar textual discussions such as were at issue
6 in the Pacifica case and we're not suggesting otherwise.
7 Certainly the language on a number of the cites that
8 we provided to you have that type of language, but I --
9 JUDGE DALZELL: Let's put some flesh on it because
10 it, in terms of what the Government's position is because I
11 share Chief Judge Sloviter's befuddlement on this point.
12 JUDGE SLOVITER: I'm not sure I would describe
13 myself --
14 JUDGE DALZELL: Well, all right, then I will
15 describe it for myself as that.
16 (Laughter.)
17 JUDGE DALZELL: I asked counsel on the other side
18 about the Merrill Hansen decision, okay? If the Merrill
19 Hansen dialogue between those two disc-jockeys about Jim
20 Baker's alleged rape of Jessica Hahn, if that had taken place
21 on the Internet, okay, would that be indecent under the CDA
22 and therefore subject those two gentlemen plus the station to
23 criminal sanctions?
24 MR. COPPOLINO: I think if you -- I re-read the case
25 after you had referenced it and I think that is probably the
87
1 hardest case, I've read all of the FCC materials that you had
2 talked about because it was obviously a very explicit
3 description, but then they stopped and said hey, this is
4 serious, this woman was being raped.
5 And I would say to the Court that in the broadcast
6 context, as I think we've made clear, the standard is much
7 less tolerant. Judge Sloviter explained this in a fabulous
8 case, in that context you're going to get away with an awful
9 lot less and your First Amendment freedoms are more limited.
10 So I don't think I can say that that discussion
11 would necessarily be indecent, although prior to the point
12 where they got to, hey, wait a minute, maybe we shouldn't be
13 making jokes about this, this is a serious situation, it was
14 a fairly explicit discussion.
15 But I'd like to make this point to the Court in
16 respect to the FCC adjudication because I think that is
17 helpful in trying to understand the standard. Even in the
18 area of broadcast where First Amendment freedoms are most
19 limited and where there is the least tolerance, I think that
20 the FCC decisions reflect a very serious intent to limit the
21 indecency standard to patently offensive and shocking
22 materials that are taken, for example, out of context.
23 JUDGE DALZELL: But that's why I'm concerned about
24 the Hansen case. We have 94 U.S. Attorneys, I think, at
25 least 94 cause there's 94 districts, okay, that at least one
88
1 of them or one of your colleagues in Washington such as the
2 gentleman who was in recent contact with Compuserve will look
3 at Hansen or the language of this and say let's convene a
4 Grand Jury.
5 Now, you know, if a party hears the words Grand Jury
6 convened about me, it will really ruin their day, wouldn't
7 you agree?
8 MR. COPPOLINO: Yes, I --
9 JUDGE DALZELL: So that the fact that a jury later
10 on, that a jury later on will say oh, acquitted, that's not a
11 lot of comfort, is it?
12 MR. COPPOLINO: Your Honor, I think that we cannot
13 provide assurance that there might not be a prosecutor that's
14 going to take the most absurd case or very extreme case and I
15 think that in assessing --
16 JUDGE DALZELL: Is this an absurd case?
17 MR. COPPOLINO: No.
18 JUDGE DALZELL: Hansen, I mean, this is the Federal
19 Communications Commission did this. Did they do an absurd
20 thing?
21 MR. COPPOLINO: I indicated just a moment ago that I
22 felt that the standard would be tighter in the broadcast
23 context and that in many other cases that they have decided
24 in the broadcast context it is very clear that they are
25 focusing on patently offensive stuff taken out of context.
89
1 But to answer your question, in the context of the
2 facial challenge I think the Court has to construe the
3 indecency standard in a manner consistent with how it's been
4 applied by the Congress and the courts. That's not to say
5 that there aren't going to be hard cases. Those hard cases
6 should not take the whole statute down, they should simply be
7 left for admittedly a difficult as applied challenge.
8 But we can show, I believe it's fair to say, that
9 the indecency standard as it has been applied and construed
10 covers a fairly narrow category of speech.
11 JUDGE SLOVITER: I still don't understand whether
12 that narrow category of speech covers work that some people
13 would consider to be of value. Take, for example, the play
14 that was in two parts on Broadway about AIDS.
15 JUDGE DALZELL: Lost in America?
16 JUDGE SLOVITER: The two --
17 JUDGE DALZELL: Angels in America.
18 JUDGE SLOVITER: Angels in America. Now, a lot of
19 people might be offended by that -- leave aside Shakespeare
20 and leave aside Chaucer which we know from the book content
21 and leave aside "Catcher In The Rye" which we know from the
22 print media are considered offensive in some media and go to
23 a more contemporary type of literature that some people would
24 think is serious and some people would think is
25 objectionable.
90
1 If that were printed in, you know, print on the
2 Internet, Mr. -- Pittsburgh Library --
3 JUDGE DALZELL: Dunninberger (ph.).
4 JUDGE SLOVITER: Yeah, would that be covered or
5 would there be a built-in non-specified defense that says
6 this is a serious work?
7 MR. COPPOLINO: Two points, your Honor.
8 JUDGE SLOVITER: Yes.
9 MR. COPPOLINO: Our point is that yes, material that
10 might be found indecent might also be considered to have
11 serious value. The plaintiff's position seems to be is that
12 indecency covers all works that have serious value and that's
13 where really we are disagreeing. We -- because I don't
14 believe that's necessarily the case as you parse the
15 standards in the obscenity and indecency area that you have
16 to conclude, as they have, that indecency necessarily
17 includes serious material and necessarily excludes material
18 that has prurient appeal. That's where our disagreement is.
19 The answer to your question is yes, it's possible
20 that something that is serious in some way could be indecent.
21 Our point with respect to the --
22 JUDGE SLOVITER: And it certainly deals with sexual,
23 I saw half of it, sexual or excretory activities or organs.
24 MR. COPPOLINO: Yes, but our point with respect to
25 plaintiff's materials, first of all, is that what they have
91
1 presented in context in its full context is -- is serious
2 material that ought not to be found and should not be found
3 indecent. And I have to say to your Honor that if you're
4 just going to talk about a play on AIDS, the whole play in
5 context, it has serious value.
6 If you're going to talk about, as in one of the FCC
7 cases, taking specific stuff out and putting that out there
8 and making it available, then the context is completely
9 changed. So it's very difficult to answer the question well,
10 is all serious -- is all serious work covered by the
11 indecency standard.
12 JUDGE SLOVITER: But that's not the question. That
13 may be their question, but that's not my question. My
14 question is does the -- and we're not bound by anything that
15 the plaintiffs say, that may also be extreme.
16 My question is simply as a matter of notifica-- one
17 is a matter of the First Amendment and two is a matter of
18 notification because it's a criminal statute. To the world
19 out there what does this statute read or reasonably read to
20 those people so that if somebody wants to send somebody else
21 a paragraph or a scene from a contemporary play, is that
22 person and the other person is 17, is that covered by the
23 statute? And I still don't have a yes or a no from you.
24 MR. COPPOLINO: Well, the problem is I don't know
25 that I can say yes or no to a categorical question that is
92
1 serious material covered because the application of the
2 indecency standard depends on the specific communication and
3 its context.
4 I got in -- we kind of got into this thicket for two
5 reasons: one is they're coming in saying that anything having
6 to do with sex, whether it's a reference in Bible, the Bible
7 or Shakespeare, breast cancer, breast feeding, so on--
8 JUDGE SLOVITER: Leave them out of it and just --
9 MR. COPPOLINO: Fine, okay.
10 JUDGE SLOVITER: -- talk to the three of us at this
11 point.
12 MR. COPPOLINO: I think the material --
13 JUDGE SLOVITER: And the three of us want to -- I
14 think the three of us want to know how broadly this statute
15 reads.
16 MR. COPPOLINO: Then our position would be that the
17 statute should apply to non-obscene patently offensive
18 material, sexual -- concerning sexual and excretory
19 activities of the nature that Congress has indicated that it
20 is targeting, namely the sexually explicit sites on the
21 Internet and of the nature that Congress has targeted and the
22 courts have recognized in other cases such as Dial-A-Porn and
23 the Act Two -- the Act Three in the Alliance case, materials
24 of that nature.
25 Clearly, your Honor, I think it's fair to say that
93
1 the target of the indecency standard has been materials with
2 very little value, with significantly little, with
3 significant or --
4 JUDGE DALZELL: But who determines that, the 94 U.S.
5 Attorneys?
6 MR. COPPOLINO: I think it starts in the first
7 instance and in the face of a vagueness challenge here with
8 the Court construing the standard as it has been applied by
9 Congress and as it has been reasonably applied by the Courts
10 who have considered similar cases.
11 JUDGE SLOVITER: But they're not criminal, by and
12 large.
13 MR. COPPOLINO: Well, by and large. The Dial-A-Porn
14 statute is a criminal statute with a regulatory overlay but,
15 yes, they are predominately not criminal. But I think that
16 again I would start with the point that this is not a
17 completely open-ended standard, there are parameters here.
18 First of all, you have to have sexual or excretory activities
19 or organs. That's minimum that has to be in the
20 communication.
21 JUDGE SLOVITER: Even though A doesn't so state?
22 MR. COPPOLINO: Well, yes, I understand. Well, I
23 understand that, your Honor, but there's nothing --
24 JUDGE SLOVITER: I mean you're asking us to be the
25 activist Judges that Congress ex-- that some members of
94
1 Congress excoriate because you're asking us really, Mr.
2 Coppolino, to rewrite the statute.
3 MR. COPPOLINO: Well, I --
4 JUDGE SLOVITER: To put words into the statute that
5 aren't there. And at least I want to know clearly what words
6 you think we ought to put in and your brief suggests, for
7 example, we should put in prurient, you know, that --
8 commercial, the kind of -- that it's really intended to hit
9 what already is being hit. And what I'm trying to find out
10 is what more is in this statute than in, already in 18 USC.
11 MR. COPPOLINO: Right, your Honor, I --
12 JUDGE SLOVITER: And I know your position is
13 difficult, especially when I come at you like -- when all
14 three of us come at you like that, but -- but we really want
15 to understand.
16 MR. COPPOLINO: And I understand and I'm not --
17 JUDGE SLOVITER: And we know it comes like you say
18 with the overlay of constitutionality and Congress has sorted
19 out, we know all that. And you know it's very rare that we
20 declare a statute unconstitutional.
21 MR. COPPOLINO: You don't have to rewrite the
22 statute, you don't have to be activist Federal Judges
23 legislating and I'm not asking you to do that. With respect
24 to the indecency standard, I think that's a fairly simple
25 task of statutory construction to say that the word indecent
95
1 means what every court that has considered an indecency
2 challenge has understood it to mean. That's our view, at
3 least, that it's fairly simple to do that.
4 With respect to the over-breadth issue, the over-
5 breadth issue goes to whether or not the statute, the
6 statute's potentially unconstitutional applications are
7 substantial in comparison to its plainly legitimate sweep.
8 Our point on that is that it's plainly legitimate
9 sweep --
10 JUDGE SLOVITER: Is what?
11 MR. COPPOLINO: Is enormous and is very substantial
12 and substantially outweighs what might be considered to be
13 potential problem areas, due to potential problem areas. And
14 let me --
15 JUDGE SLOVITER: What is its plainly legitimate
16 sweep that is not already covered by the two provisions in 18
17 USC?
18 MR. COPPOLINO: Your Honor, the plainly legitimate
19 sweep is --
20 JUDGE SLOVITER: That is not already covered.
21 MR. COPPOLINO: Yes. 18 USC does not cover indecent
22 materials, it covers obscenity and child pornography. And
23 this statute extends that to materials that would fall within
24 the indecency standard.
25 JUDGE SLOVITER: And what is indecent?
96
1 MR. COPPOLINO: Well, your Honor, let me go back to
2 the point and try to explain it this way because --
3 JUDGE SLOVITER: And not only what is indecent,
4 where does it have to be viewed as indecent, in other words,
5 in what community? Would you take those two questions --
6 MR. COPPOLINO: Yeah, I think I can deal with that
7 one first. There's no in-- I mean I think that the indecency
8 standard is a standard that will be judged on a community
9 basis and I think that that --
10 JUDGE SLOVITER: What community, you mean local
11 community?
12 MR. COPPOLINO: Well, yeah, where the communication
13 is at issue.
14 JUDGE DALZELL: Where the communication what?
15 MR. COPPOLINO: Is at issue.
16 JUDGE SLOVITER: Now, is that not a problem when
17 you're dealing with something that comes across the entire
18 United States? Leave aside the rest of the world, I
19 understand your position that you can only deal with what's
20 here and, you know, let's not worry about what's there, you
21 know, that's true, I don't have to worry about what they're
22 singing in Paris.
23 But the United States is so diverse, what goes in
24 Philadelphia, as cosmopolitan as Philadelphia is, may not
25 go-- where are you from? -- Lancaster.
97
1 JUDGE DALZELL: Lancaster.
2 JUDGE SLOVITER: May not go --
3 (Laughter.)
4 JUDGE BUCKWALTER: For the record, that's spelled
5 L-a-n-c-a-s-t-e-r.
6 JUDGE SLOVITER: Well, seriously, so what -- and are
7 we on the same -- and we're all in the same district, in the
8 same Eastern District no less. What -- and Lancaster is
9 where the Amish are?
10 JUDGE BUCKWALTER: Right.
11 JUDGE SLOVITER: And "Witness" and --
12 JUDGE BUCKWALTER: And Mennonites.
13 JUDGE SLOVITER: Mennonites. What -- and I know
14 we're taking your time, we're going to give you time to
15 answer.
16 MR. COPPOLINO: No, that's fine, I want to answer
17 your questions.
18 JUDGE SLOVITER: What community is it when somebody
19 sends something over the Chat News that I could access,
20 assuming I knew how, and that he could access?
21 MR. COPPOLINO: The answer, I think, to the question
22 is, it is a problem if you construe the indecency standards
23 as the way plaintiffs have, that someone might be offended,
24 for example, by a serious discussion of prison rape or safe
25 sex.
98
1 But if the indecency standard is properly understood
2 to be applicable to the types of materials Congress has
3 intended to cover, then the disagreements between communities
4 are going to be at the margins. Some communities like New
5 York, for example, will consider the movie, "Deep Throat,"
6 not to be obscene but merely indecent. Philadelphia or
7 Lancaster may have a different view of that.
8 JUDGE SLOVITER: No, Philadelphia would be with New
9 York but Lancaster would --
10 JUDGE BUCKWALTER: Would not.
11 JUDGE SLOVITER: -- might be somewhere else.
12 MR. COPPOLINO: I recognize that, your Honor, but
13 first of all we're in the ballpark of that kind of material
14 in --
15 JUDGE DALZELL: Well, wait a minute now. You just
16 say we're in the ballpark. One of the amici put before us a
17 Web site of the University of California that has an exhibit
18 of the University of California that has an exhibit of Edward
19 Weston and Robert Maplethorpe photographs and it has two
20 examples of those photographs. The Maplethorpe photograph is
21 the depiction of a man with an erect penis, okay, and that's
22 the subject of that photograph, quite obvious.
23 Now, we don't have to speculate. We know in
24 Philadelphia, because that's where the show started, the
25 Maplethorpe show was a big hit at the Institute for
99
1 Contemporary Art but when it went to Cincinnati, in that
2 community people were very upset by it.
3 Now, is the University of California at Riverside, I
4 think it was, who has that on its site, is the University of
5 California at Riverside subject to prosecution under the CDA
6 in Cincinnati?
7 JUDGE BUCKWALTER: There's no indication, your
8 Honor, that the standard is simply going to be that you're
9 subject to prosecution where your site is. So I'd like to be
10 able to tell you that they're not exposed to liability where
11 that material can be downloaded, but what I want to come back
12 to you though and in connection with the Maplethorpe example
13 is that again you have -- you have steered me to now two very
14 tough cases which I would suggest to the Court not be the
15 cases which bring the statute down on a facial basis.
16 It is conceivable that that Maplethorpe picture of a
17 man with an erect penis might in some communities, in
18 Lancaster or in other communities it might be considered more
19 conservative, might be a problem because it is certainly a
20 depiction of a sexual organ, we can agree to that.
21 JUDGE DALZELL: It fits the literal definition, we
22 don't have to speculate. We know in Cincinnati that in that
23 community they find that a patently offensive depiction of a
24 sexual organ, so it is verbatim in D. So the U.S. Attorney
25 for the Southern District of Ohio indicts the University of
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1 California at Riverside?
2 MR. COPPOLINO: Well, big, big leap there, your
3 Honor. I mean this is the statute which just doesn't say if
4 you have this communication or this image on your -- on your
5 Internet you have no -- you have no defenses.
6 The point I would make is that --
7 JUDGE BUCKWALTER: No, no, no, no, but he's saying,
8 he didn't say it about defenses though, but do they indict?
9 That's what he was saying.
10 MR. COPPOLINO: The point I was going to make --
11 JUDGE BUCKWALTER: And isn't the answer yes?
12 MR. COPPOLINO: No, no, I don't think the answer's
13 yes. I think the point is that if you're going to have an
14 image like that in your site, and we're getting closest to
15 the line perhaps without going across the line to materials
16 that aren't serious or do appeal to the prurient interest,
17 but if you're going to have an image like that on your site
18 and there is some risk, then there are steps that are
19 available to you to ensure that there may not be access by
20 minors because of the fact that there is possibility that
21 that might be found to be indecent.
22 But this is the hardest case and I again would
23 suggest that --
24 JUDGE SLOVITER: But we could give you, I mean I
25 would imagine we could give you lots of hard cases. In other
101
1 words, we picked two but we don't have all day to stay here.
2 I asked a witness, if you recall, what about the Indian
3 statues, statues of, you know, copulating, loads of different
4 methods of copulation. And we didn't have a chance to ask
5 you --
6 MR. COPPOLINO: Sure.
7 JUDGE SLOVITER: -- in those contexts.
8 MR. COPPOLINO: But that is where, that is I think
9 where we suggest to the Court that a fair, reasonable and
10 appropriate and narrow, if you will, construction that does
11 not involve being activists or re-writing the legislation is
12 to -- is to recognize that the indecency standard as Congress
13 has intended to apply it in this case, if properly applied to
14 the types of materials that are, that have been described in
15 the Congressional record and that we have put forward with
16 Mr. Schmidt's materials because I think it's very clear to
17 say, I think it's very fair to say that those are the
18 materials that Congress had in mind.
19 Now --
20 JUDGE SLOVITER: Mr. Schmidt's materials are, I
21 would think, almost exclusively materials that are
22 pornographic.
23 MR. COPPOLINO: I wouldn't disagree with that.
24 JUDGE SLOVITER: Or obscene.
25 JUDGE DALZELL: Obscene.
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1 JUDGE SLOVITER: Obscene.
2 MR. COPPOLINO: I do disagree with that, but I agree
3 they're pornographic, I don't --
4 JUDGE SLOVITER: Well, I would think they were
5 obscene.
6 MR. COPPOLINO: Can I address that?
7 JUDGE DALZELL: Well, some were obscene for certain.
8 I mean I know it when I see it, just like Justice
9 Stewart.
10 (Laughter.)
11 MR. COPPOLINO: I did that, I -- but can I just
12 address this point? I certainly wanted to provide you
13 examples of a range of materials that are out there and we by
14 no means went to the far reaches of the extreme of what's
15 easily available to you on the Internet, but we did provide
16 somewhat of a range precisely because in some communities
17 they may not be obscene and I wanted the Court to see
18 examples of what those might be, given the fact --
19 JUDGE SLOVITER: I can't imagine that community.
20 JUDGE DALZELL: But, Mr. Coppolino, the point is in
21 a case where you have an over-breadth challenge to a statute,
22 it seems to me that to come back to my Maplethorpe example --
23 the reason I keep coming back to Maplethorpe is we don't have
24 to hypothesize anything about Maplethorpe. We know for a
25 fact how Mr. Maplethorpe's photographs are received in
103
1 different communities, okay?
2 And you're the lawyer for the University of
3 California. Does the University of California at Riverside's
4 gallery have to come to you and get an opinion and say Tony,
5 we've got these photographs of Weston and Maplethorpe and we
6 happen to think they're great, but are we going to get
7 prosecuted in Cincinnati if we put this on here? What would
8 you tell him?
9 MR. COPPOLINO: Am I the Justice Department or their
10 lawyer?
11 JUDGE DALZELL: No, you're the lawyer for the
12 University of California at Riverside. What would you tell
13 them?
14 MR. COPPOLINO: I would tell them you shouldn't
15 because as the --
16 JUDGE DALZELL: You should not put that on there?
17 MR. COPPOLINO: No, you should not be prosecuted
18 under the indecency standard because Congress has construed
19 that, has applied and construed that standard in a fairly
20 specific way.
21 However, if you are concerned there are things that
22 you can do to protect access by minors to that site.
23 JUDGE DALZELL: How?
24 MR. COPPOLINO: Well --
25 JUDGE DALZELL: Because we were told that those
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1 images -- we were -- you know, but we were told by your
2 expert that images that he knew of no technology to block
3 images. He could block words, but not images. And that's
4 why I keep coming back to the Maplethorpe example because
5 they're images.
6 MR. COPPOLINO: Well, your Honor, you can block --
7 you can block a file, certainly, you can block a site, we've
8 seen that. You can block a file and you can have the image
9 attached to the file and if the file is blocked, I believe
10 the image would be blocked as well.
11 I don't think it's correct to say that images can't
12 be, if images couldn't be blocked, America On Line's Parental
13 Controls would not work and they specifically attempt to
14 block down binary downloads.
15 JUDGE SLOVITER: Isn't the issue though one of
16 chill? In other words, if you're dealing with a First
17 Amendment challenge and the university says oh, who wants to
18 bother, who wants a lawsuit, who wants to have to come up
19 with a defense, it's not worth it. We're not making money
20 out of this, this is something that we're doing. And isn't
21 that a concern when we're dealing with a criminal statute? I
22 keep coming back to the criminal statute because people are
23 supposed to know, at least I was taught in law school and 17
24 years on this court I've been taking the position that people
25 are entitled to know what it is they may be prosecuted for.
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1 And if these not insubstantial number of cases are
2 at the edge and they have to keep running to their lawyers
3 and saying where do you think this falls in a statute that
4 doesn't say specifically the things that Mr. Coppolino who's
5 nice but he now works for the university making more money,
6 and so I don't know who's going to construe the statute,
7 doesn't that present a problem and how do we deal with it?
8 MR. COPPOLINO: The answer is, your Honor, again
9 that there are parameters to the standard and this Court
10 certainly can go a long way towards reducing the potential
11 chill by construing the statute in a manner in which Congress
12 has intended it to apply and in a manner in which the Courts
13 have recognized that it has been applied.
14 Again, it is sexual and excretory activities that
15 are patently offensive. Now, we recognize with the --
16 JUDGE SLOVITER: We don't know where, either,
17 patently offensive.
18 MR. COPPOLINO: We recognize that there's always the
19 potential risk in some cases in a criminal statute with some
20 hypothetical, but there has to be an expectation that the
21 Government is going to apply the standard in the manner in
22 which it is clearly intended to be applied and in a manner in
23 which the courts have said can constitutionally be applied
24 and we certainly are not asking the Court to re-write it, but
25 to take this standard as it has been intended.
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1 And there is one point I would like to make about
2 this because I think my argument is not complete unless I
3 make it. The point that I've tried to make is that the
4 plaintiffs construe what we have submitted as pornography,
5 which I think is a fair characterization, but what I disagree
6 with is that because that material appeals to the prurient
7 interest and arguably has no serious value, it is necessarily
8 obscene. That is a legal determination and I think that that
9 analysis is simply wrong.
10 To be obscene under the Miller test, you have to
11 satisfy all three standards or obscenity. And therefore it's
12 conceivable that something could appeal to the prurient
13 interest as these materials do but not be considered patently
14 offensive or in some communities might have serious literary
15 or artistic value and therefore would not be indecent, would
16 not be obscene.
17 And the reason that this is important is that
18 material that is obscene, as you know, is not legal, it can
19 be banned entirely. It is a very -- and therefore it is a
20 very narrow category of speech and I think that Justice
21 Scalia's observation in Sable is that the more narrow that
22 category of speech of obscenity is, the more Congress needs
23 to sweep into this, into the indecency standard this type of
24 stuff, the kind of stuff in the Schmidt notebook.
25 Because if it just simply said let's limit the
107
1 statute to obscenity, well, then a lot of that material is
2 not going to be obscene in many communities and it would be
3 freely available and the protection of minors, which is the
4 Government's compelling interest, would not be served.
5 And this is clearly the case in a number of statutes
6 in which Congress has tried to use the indecency standard
7 successfully.
8 JUDGE SLOVITER: Well, you're distinguishing between
9 pornographic and obscenity, are you making a distinction
10 there?
11 MR. COPPOLINO: Well, yes.
12 JUDGE SLOVITER: They're not challenging, as I
13 understand it they're not challenging the application of the
14 statute to that which is obscene, everybody agrees to that,
15 or that which is pornographic. I thought I saw that.
16 MR. COPPOLINO: No, I'm afraid that with
17 pornographic, your Honor, we get into a subjective term, as
18 Mr. Hansen -- as Mr. Hansen nicely lectured me at the TRO
19 hearing, as you can -- as you might remember, your Honor --
20 pornography is not a legal term.
21 Now, I can accept the colloquial characterization of
22 pornography is appealing to the prurient interest and lacking
23 serious value, but I do not accept the conclusion that that
24 is necessarily obscene.
25 I think a Playboy centerfold appeals to the prurient
108
1 interest, might have some artistic value to some, clearly it
2 appeals to the prurient interest. I doubt it's --I doubt
3 it's obscene. And I think that our laws clearly reflect that
4 understanding, that common sense understanding of where a
5 line is between obscenity and indecency.
6 Obscenity is the hardcore and what is hardcore is
7 going to vary in communities and at least one Circuit Court
8 in the Second Circuit thought "Deep Throat" wasn't hard core
9 enough to render an obscenity characterization. And that is
10 enough for Congress to say in order to effectively protect
11 minors, to serve our compelling interests, we'd better use
12 this indecency standard or a lot of bad stuff is going to get
13 through.
14 But it doesn't mean that safe sex information which
15 they have presented which is in context, very serious and
16 important information, is indecent. It doesn't mean that
17 ACLU's briefs on the Pacifica case or the Cohen case are
18 indecent because they discuss an area having to do with a
19 dirty word.
20 JUDGE SLOVITER: What about the statutory history of
21 the statute, what were the exceptions that Congress, the
22 conference committee or Congress rejected?
23 MR. COPPOLINO: The harm to minors, I think, is what
24 the Court is referring to.
25 JUDGE SLOVITER: Was that Representative Berman's
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1 or...
2 MR. COPPOLINO: Well, harm to minors, your Honor, is
3 a separate standard and the plaintiff's argument seems to be
4 that Congress, if it wanted to regulate pornography, should
5 have used a harm to minors standard because that's been used
6 by the states to set up display while --
7 JUDGE DALZELL: No, it's more than that because
8 Congress specifically rejected that, that therefore it's a --
9 there is the breadth is necessarily wider since Congress was
10 given the opportunity to take it and elected not to,
11 specifically elected not to.
12 MR. COPPOLINO: In harm to minors, and harm to
13 minors is a variable obscenity standard. It is -- it is
14 material that is not obscene as to adults but obscene as to
15 minors, which means it has to satisfy the three standards of
16 Miller as to minors. It must be -- appeal to the prurient
17 interest of minors, must be patently offensive depictions
18 about sexual or excretory activities, it must have no serious
19 literary value, as to minors it is, I concede, a narrower
20 standard but a Congress -- but that does not mean by reverse
21 implication that the indecency standard therefore doesn't
22 include anything that is -- that -- anything that appeals
23 to --
24 JUDGE DALZELL: Yeah, but don't you think that that
25 precludes, to get at what Chief Judge Sloviter has been
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1 trying to get at for 40 minutes now --
2 JUDGE SLOVITER: Have I been?
3 JUDGE DALZELL: -- doesn't that -- doesn't that rule
4 out for us, unless we be accused of being activist Federal
5 Judges, that how could we engraft a harmful to minors test
6 when Congress specifically rejected it?
7 MR. COPPOLINO: I am not asking you to engraft a
8 harmful to minors test and I can tell you the way that I
9 think you can do it.
10 JUDGE DALZELL: Okay, you're not.
11 JUDGE BUCKWALTER: No, mm-hmm.
12 MR. COPPOLINO: I think you can, you can, first of
13 all, cite the authority to which Congress has applied the
14 indecency standard and recognize that that standard has been
15 applied to materials that are comparable to the types of
16 materials that we believe are primarily at issue in this
17 case. And I refer you to, for example, the materials at
18 issue in Dial-A-Porn which I think very few would
19 characterize as --
20 JUDGE DALZELL: Yeah, but you know in the Sable case
21 Professor Tribe (ph.) was representing Sable and he argued to
22 the Court, well, you know, this is a community standard and,
23 you know, how in the -- the telephone, we have to go
24 community to community and the Supreme Court said well, you
25 know, that's your burden, okay? And it's okay to say to a
111
1 commercial provider whose only business is Dial-A-Porn,
2 that's your burden.
3 Isn't it quite another matter to say to the
4 University of California at Riverside or to Mr. Kuromiya
5 sitting over there that they all have to go running to First
6 Amendment lawyers to determine whether what they're putting
7 on the Internet passes community standards from Brainerd,
8 Minnesota to Cincinnati to Philadelphia to San Francisco?
9 MR. COPPOLINO: I think it's a fair question, your
10 Honor, but I think the question goes to something other than
11 the indecency standard. I would suggest it goes more to the
12 issue of the least restrictive means or the over-breadth of
13 the statute as opposed to the standard because I think that
14 however -- wherever you apply a standard to, you have to have
15 a standard. You have to try to define what it is you're
16 trying to target. And my point to the Court is that you can
17 recognize that the indecency standard applies to a very
18 narrow category of speech.
19 The second inquiry would be does the act as a whole
20 sweep too broadly in its reach to commercial versus non-
21 commercial sites, Web sites versus USNet versus Chat Rooms.
22 But I would regard those as separate issues. I think if you
23 struck down the statute simply on the basis that the
24 indecency standard was too vague and no court that has had a
25 vagueness challenge has found it to be vague. And they
112
1 haven't really, really specified this point about commercial,
2 non-commercial, they simply said we think this is -- this is
3 clear enough for what has been applied to here by Congress.
4 If it sweeps too broadly, I think those are issues
5 more of least restrictive alternative and over-breadth which
6 I'd be willing, I'd like to address and --
7 JUDGE DALZELL: But the Dial-A-Porn --
8 JUDGE SLOVITER: You can -- no, go ahead, go ahead.
9 JUDGE DALZELL: The Dial-A-Porn cases, and we all
10 agree that Congress reached into Pacifica, reached into Sable
11 and begot the CDA. We all agree also, do we not, that Dial-
12 A-Porn is all porn because that's what they call it. That's
13 the only content on Dial-A-Porn is porn. Now, whether it's
14 obscene or not is another matter. There's only one type of
15 content.
16 What our friends over here represent are 46 players,
17 by my count, representing God knows how many individuals
18 within their organizations and I'm sure you would agree with
19 me, Mr. Coppolino, that not one of those plaintiffs is in the
20 pornography business.
21 MR. COPPOLINO: Not one of them is in the
22 pornography and therefore in our view not one of them falls
23 within the plainly legitimate sweep of this statute and I
24 think you can find that.
25 Now, whether or not the indecency standard can be
113
1 construed to apply to all of their serious, political or
2 scientific or educational speech, ACLU, human rights watch,
3 safe sex and so on, I don't think you have to. And my
4 authority for that is to direct the Court's attention, number
5 one, to what Congress has intended to apply the statute to
6 and, number two, to authority applying the indecency
7 standard.
8 You're absolutely correct, the indecency standard
9 was applied to Dial-A-Porn, which is Exhibit No. 1, to show
10 that indecency can be applied to porn, to materials that
11 appeal to the prurient interest. It doesn't have to be-- it
12 doesn't have to be obscene and that I think is a very
13 important conclusion because the Court can therefore say
14 okay, I can -- the indecency standard can survive a vagueness
15 challenge that the plaintiffs are making that this has to be
16 cabined into the obscenity area for the reasons that Judge
17 Scalia said in Sable. If you throw it into the obscenity
18 area, an awful lot of this patently offensive, sexually
19 explicit material is going to fall out, it's not going to be
20 obscene, it's not going to be completely illegal and
21 therefore it's going to be available to minors without any
22 restrictions.
23 But I think your question does go more to the over-
24 breadth and the least restrictive means and let me deal with
25 the over-breadth because I think it can be dealt with fairly
114
1 discretely.
2 There are two facial challenges. One is it has to
3 be invalid in every application and I think we show that's
4 clearly not the case.
5 JUDGE SLOVITER: Well, a substantial number?
6 MR. COPPOLINO: No, there's two, there's two tests
7 really. One is, is it invalid in every application, answer
8 no, I think you can -- you don't have to pause on that one.
9 JUDGE DALZELL: And the other is substantial over-
10 breadth.
11 MR. COPPOLINO: Substantial over-breadth again goes
12 to the question of whether or not the potentially
13 unconstitutional impermissible applications are substantial
14 in comparison to the statute's plainly legitimate sweep. And
15 they first, I think, bootstrap back in their indecency
16 argument, that if indecency covers so much, it's over-broad,
17 separate argument.
18 The second point they make is, which is really the
19 over-breadth point, is that the statute regulates more
20 broadly than Web sites and more broadly than commercial Web
21 sites and it goes to non-commercial speech and other types of
22 speech. Therefore, it's substantially over-broad.
23 But I don't think you can reach that conclusion that
24 it's substantially over-broad that easily and I don't think
25 you can reach it at all. The first point we would make to
115
1 the Court is that we have presented evidence, a small sample
2 but nonetheless a lot of evidence that there are -- that
3 there is an enormous amount of material out there, a vast
4 amount of material to which the statute can constitutionally
5 apply. And that is the type of material in Mr. Schmidt's
6 notebook --
7 JUDGE SLOVITER: Yeah, but if we think that that
8 is-- suppose we don't agree with you and we think that that
9 is obscene. What would follow from -- I gather that you
10 think that some of it is not obscene, I'd like to see those
11 portions of it, maybe those are the few that I would look at.
12 But leaving that -- leaving --
13 JUDGE DALZELL: "Chip's Erotic Tunes," probably.
14 JUDGE SLOVITER: Well, when we looked at it, we
15 thought and we had a motion from the plaintiffs that say
16 that's irrelevant because that's -- that's all obscene. And
17 we let it in but that doesn't mean that we found that it was
18 not essentially obscene.
19 MR. COPPOLINO: Well, I don't think you have to find
20 one way or the other that it's obscene or indecent and I
21 don't think you should because this is a -- this is a
22 standard, the line between what types of pornography are
23 obscene and indecent is going to vary. But I think it's very
24 clear under the law that what is obscene is extremely narrow
25 and if you were to decide that everything in the Schmidt
116
1 notebook, everything that Surfwatch blocks is obscene, well,
2 I don't think I'm going to win on the substantial over-
3 breadth argument because the substantial over-breadth
4 argument does make the point that this material can be
5 covered and should be covered by the indecency standard
6 because what is obscene is far too narrow and therefore,
7 therefore the statute does have a broad, plainly legitimate
8 sweep because these materials are properly within the scope
9 of the indecency standard. It is a major problem that
10 Congress sought to address and you don't have to re-write the
11 statute to reach this conclusion, you can see that the
12 materials are there, you can see that the statute can reach
13 them.
14 And let me just make my point on the credit card
15 defense. You can see that the credit card and access code
16 defense is readily available to those types of providers, no
17 re-writing required.
18 JUDGE SLOVITER: You'll agree that all of those
19 materials in the Schmidt notebook, I think now called the
20 Coppolino note --
21 MR. COPPOLINO: Oh, let's call it the Schmidt
22 notebook.
23 JUDGE SLOVITER: -- notebook were designed to appeal
24 to the prurient interests of the viewer?
25 MR. COPPOLINO: Do I think that?
117
1 THE COURT: Yeah.
2 MR. COPPOLINO: Yes, I would say that they would but
3 they don't, that doesn't mean they're obscene, your Honor and
4 that's the point.
5 JUDGE SLOVITER: All right, well, whether or not
6 they are, you would agree that that classification of
7 material is designed to appeal to prurient interests?
8 MR. COPPOLINO: Yeah, but let me backtrack a half a
9 step and say that there are some of those images that some
10 might consider just artistic and that wouldn't, that wouldn't
11 find them pruriently appealing. Very few, I would hasten to
12 add, but there are some mild nudes and centerfold type images
13 which are not as explicit as others.
14 JUDGE SLOVITER: all right. But most of them were
15 very explicit?
16 MR. COPPOLINO: Yes, your Honor, but the point I'm--
17 JUDGE SLOVITER: Is that right? Now, what is the
18 other area of the substantial so-called indecency material
19 that would come within the statute that is not of a serious,
20 that has no serious value?
21 MR. COPPOLINO: Well, I think the best examples I
22 can give the Court in that regard, the non-pornographic but
23 yet indecent materials would be of the nature of the kinds of
24 things that, for example, the SEC has identified. They do
25 not go out and say --
118
1 JUDGE SLOVITER: Such as?
2 MR. COPPOLINO: Well, such as I put forward, I
3 think, in the record three examples. One was highly explicit
4 excerpts from a play on AIDS. It wasn't the whole play, it
5 wasn't the subject matter, it was just those experts. FCC
6 said we're not penalizing you for discussing AIDS, we are--
7 we are -- we do think these specific excerpts are indecent in
8 its text and it's obviously not necessarily pornographic but
9 let me make --
10 JUDGE SLOVITER: Wait a minute, wait a minute, let's
11 take that one.
12 MR. COPPOLINO: Mm-hmm.
13 JUDGE SLOVITER: So what you're saying is that even
14 though the play itself, the work itself could be viewed as
15 a-- and I don't remember what the work was -- but as a
16 serious literary work dealing with AIDS if excerpts of it are
17 patently offensive in some communities, then those excerpts,
18 at least, would fall within the statute?
19 MR. COPPOLINO: They might, your Honor, but I have
20 to say I don't think that's a terribly startling conclusion
21 because I think that the indecency standard makes clear that
22 if you do take stuff that is in the context of the
23 communication at issue is patently offensive, it can be
24 indecent. And in this instance material is taken out of
25 context, out of its serious value and simply put out there.
119
1 JUDGE SLOVITER: But wouldn't that cover almost all
2 the plays on Broadway today? I haven't, I don't go
3 frequently, I --
4 MR. COPPOLINO: I don't -- you -- that assumes a
5 fact not in evidence that I know what's in those plays.
6 JUDGE SLOVITER: But don't almost all plays and I
7 gather from writer friends almost all books have to have a
8 little bit of sexual activity in order to sell? And does the
9 fact that a portion of what is, even though not high
10 redeeming value but the serious work has some material that
11 you would call -- now, I know we're on your first category
12 but I want to explore that.
13 MR. COPPOLINO: Second category now, yeah. Well,
14 we're on the non-pornographic category, right.
15 JUDGE SLOVITER: That's right. That would -- that
16 would subject, putting those on the Internet would subject
17 the speaker to potential criminal sanctions cause it has a
18 portion?
19 MR. COPPOLINO: No, I would say not, your Honor. I
20 would say --
21 JUDGE SLOVITER: Well, that's what I'm trying to
22 find out.
23 MR. COPPOLINO: -- that if you -- if you -- there's
24 been a lot of examples thrown about, "Catcher In The Rye,"
25 which I read in high school, "Lady Chatterly's Lover," I
120
1 would say that these works are serious literary artistic
2 works which in context are not indecent and I have yet been
3 cited a case which says that those are indecent under
4 Congress' indecency standard. They can show me some like--
5 JUDGE SLOVITER: Yes, but isn't it true that --
6 JUDGE DALZELL: But we know that in some communities
7 they are.
8 MR. COPPOLINO: No, I don't think we know that. I
9 think we know that --
10 JUDGE DALZELL: Oh, sure, sure, we do. "Lady
11 Chatterly's Lover?" My God, it went to the Supreme Court,
12 that issue, didn't it?
13 MR. COPPOLINO: But, your Honor, I think that --
14 JUDGE DALZELL: On whether it was obscene.
15 MR. COPPOLINO: The issue is whether or not this
16 book in its entire context on the Internet is going to be
17 legally indecent under this standard as Congress has applied
18 it. Whether the alternative is an obscenity standard where
19 very little is going to be covered, I think the answer is
20 that's not what Congress intended and that it would not and
21 should not be found to be indecent.
22 JUDGE DALZELL: Let me, if I may?
23 JUDGE SLOVITER: Go ahead, yes, sure, I didn't mean
24 to interrupt.
25 JUDGE DALZELL: I asked our friends on the other
121
1 side a number of questions about the medium and the
2 significance of the medium. Now -- and I think it's
3 undisputed or indisputable that Congress reached out to the
4 Pacifica case and you put tremendous weight on the Pacifica
5 case and the Sable case and begot the CDA.
6 As I read your material and your position in this
7 case, you say that Pacifica should not be limited just to
8 broadcast because what really bothered the Supreme Court and
9 permitted that to be upheld was the surprise element. And
10 that's why you took us through "Jasmine" and "Little Women."
11 Do I understand your position correctly, that that's
12 why Pacifica, because you would agree this is not
13 broadcasting we're dealing with here?
14 MR. COPPOLINO: I do agree it's not broadcasting and
15 I have left the Pacifica argument in just to make a point
16 that as the Court applies the Sable standard, it considers
17 the elements of pervasiveness and surprise that are -- that
18 exist on the Internet.
19 I am not here arguing, after I read the Fabulous
20 decision, that you've got to apply the Pacifica standard of
21 review, Sable doesn't even apply. I don't think that's a
22 fair characterization of our position.
23 But -- and so Sable requires the Government has a
24 compelling interest that the statute regulate least
25 restrictively. But I'm not going to abandon the lessons of
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1 Pacifica entirely as you apply Sable.
2 This is a highly pervasive medium. You asked Mr.
3 Hansen how does it compare, what would you compare it more
4 to, print or broadcast. It's a hard question but I think
5 clearly you've got to compare it more to broadcast. In my
6 first exhibit --
7 JUDGE SLOVITER: Why?
8 MR. COPPOLINO: Well, I would say Mr. Bradner, Mr.
9 Bradner and others have made the point that this is a medium
10 that for which other types of media area converging. It's
11 not just point and click and get a text, you get text, you
12 get images, you can get video, you can get -- you can get a
13 lot of other materials that are piped through to the home in
14 a manner in which the differentiation between the media is
15 diminishing.
16 JUDGE SLOVITER: Yeah, but isn't the key in
17 broadcasting the fact that there are only limited number of--
18 MR. COPPOLINO: Well, that's definitely a key, your
19 Honor.
20 JUDGE DALZELL: Frequencies.
21 JUDGE SLOVITER: -- frequencies.
22 MR. COPPOLINO: I think that's right, that's
23 definitely our key but I think there what --
24 JUDGE SLOVITER: Is that not -- isn't -- and
25 therefore the Government has to regulate.
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1 MR. COPPOLINO: It's ap-- I think it's almost--
2 JUDGE SLOVITER: Don't --
3 MR. COPPOLINO: Okay.
4 JUDGE SLOVITER: And here you don't have that kind
5 of limitation and therefore governmental interest or
6 involvement. I just want to hear your response.
7 MR. COPPOLINO: Well, the response to that is that
8 yes, the limited number of entities on the broadcast spectrum
9 is a key factor in Pacifica which I think led the Court to
10 find that communication was indecent.
11 The point I'm trying to make is that there are other
12 elements that can be derived from Pacifica such as
13 pervasiveness and elements of surprise which can be applied
14 here. It's not a perfect analogy, but I don't think you can
15 discount it entirely in this media.
16 JUDGE BUCKWALTER: But even though there is no
17 perfect analogy here, and, you know, I think you can get a
18 list and you can put on one side and, you know, it's going to
19 kind of balance out, I think. But why does that matter?
20 Both parties seem to think the specific nature here matters.
21 Why does it matter?
22 MR. COPPOLINO: I think it matters most directly in
23 connection with the Government's compelling interest because
24 if we can -- as we have demonstrated to the Court, this is a
25 pervasive media, there's 12 million on line through
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1 commercial on-line services, millions more through ISP's,
2 computers -- computers come right in --
3 JUDGE BUCKWALTER: But I mean in the law and this,
4 this is I'm asking you for your explanation of the law, why
5 does it matter if we look at this more like broadcasting than
6 if we look at it more like a newspaper?
7 MR. COPPOLINO: Well, I think it matters more if you
8 look at it more like broadcasting because I think that
9 certainly there's less tolerance of indecency in
10 broadcasting.
11 JUDGE BUCKWALTER: Okay, as I just -- that's what I
12 thought your answer would be and I wanted to understand your
13 position.
14 JUDGE DALZELL: But that's what I don't get.
15 MR. COPPOLINO: So I'm trying to get you closer to
16 that and then the newspapers.
17 JUDGE DALZELL: In terms of pervasiveness and
18 surprise, okay? Let me give an example because it relates to
19 this medium question that I've been pressing, okay?
20 I brought with me yesterday's Inquirer, okay? Now,
21 I'll tell you a little anecdote.
22 JUDGE SLOVITER: The Philadelphia Inquirer, you
23 might as well advertise it.
24 JUDGE DALZELL: The Philadelphia Inquirer, right.
25 (Laughter.)
125
1 JUDGE DALZELL: And I'll tell you a little anecdote,
2 little anecdote, okay, in the Dalzell household. My ten year
3 old son within the class that Congress wants to protect, we
4 know that. My ten year old son is a rabid Phillies fan and
5 the first thing he does in the morning when he comes down for
6 his breakfast is he gets the Inquirer and he looks to see how
7 the Phillies did.
8 So yesterday he looked and he saw that the Phils
9 edged Astros' intent, but he also saw above the fold a
10 Liberian prisoner faces death and that is to say one of the
11 more grisly pictures I have ever seen above the fold of an
12 unarmed man being shot to death while men in the background
13 are laughing.
14 Now, let's assume that parents who shared the horror
15 of my son at seeing this went to Congress and said this has
16 got to stop, so let's pass a newspaper decency act that
17 provides that any depiction of murder be shown below the
18 fold. It's a trivial intrusion, it costs nothing. Do you
19 have any doubt that that would be unconstitutional?
20 MR. COPPOLINO: I have very few doubts that that
21 would be unconstitutional.
22 JUDGE DALZELL: So why would that minimal, that
23 minimal intrusion on the editors of the Philadelphia Inquirer
24 to prevent what I think most fair-minded people would say is
25 the most indecent picture that they could imagine of one
126
1 human being wantonly killing another defenseless human being,
2 that that can't be moved to the bottom of the fold but that
3 Congress has the power to control the access of a much more
4 pervasive medium, the Internet?
5 MR. COPPOLINO: A couple of points, your Honor.
6 First of all, indecent, yes, but not necessarily, but not
7 indecent as this indecency standard means. Indecency under
8 the Communications Decency Act or in a number of these other
9 acts in Dial-A-Porn does not mean serious material, not
10 suitable for adults -- or for children like someone getting
11 killed on the front page of the Philadelphia Inquirer. It
12 means, first of all, sexual or excretory activities.
13 For example, Mr. Ennis, I believe, cited an abortion
14 case, a District Court decision where someone wanted to put
15 on an ad about abortion and there was going to be a very
16 graphic depiction of abortion. And the District Court said
17 hey, I think this is indecent and you have to channel it to
18 past ten o'clock, FCC disagreed with that.
19 FCC said you should channel it under a separate
20 regulation but it's not indecent. So that's my first point
21 in response.
22 JUDGE DALZELL: Yeah, but I don't think you're
23 answering my question. My question is since we agree with
24 each other under Tornillo and other cases that Congress would
25 not have the power to adopt a newspaper decency act which
127
1 would merely require the Inquirer to put this same photo on
2 the same page but below the fold so it has no cost, it's
3 trivial, but that would still be unconstitutional. What is
4 it about the Internet medium that makes it a completely
5 different ball game?
6 MR. COPPOLINO: Well, I think -- I think one of the
7 differences, we all know the print medium has the very
8 broadest of First Amendment protections and I think the
9 differences with the Internet media is that it allows for
10 tremendously broad array of materials far beyond what would
11 go into a newspaper to come right into the home and be easily
12 available, not mere text, not even mere images but moving
13 images as well and as technology advances you're going to see
14 the speed with which the stuff can come down to your computer
15 increase. It is becoming television-like, I guess is the
16 point.
17 JUDGE DALZELL: But this happened instantly to my
18 son on his way to finding out that the Phillies beat the
19 Astros, instantly, total surprise, worse than finding
20 "Jasmine" he sees this human being wantonly murdering an
21 unarmed person who is pleading for his life.
22 MR. COPPOLINO: I think the answer is the best I can
23 think of at this point is that I think the answer is that the
24 interactive computer services and home computers are becoming
25 more entertainment and television-like in what they can put
128
1 forward to children.
2 And I guess to change the analogy a little bit, if I
3 may, your Honor, what I am putting at issue in this case and
4 what I believe is at issue in the indecency standard are the
5 types of materials that we have submitted and your son could
6 not pick that up on his doorstep.
7 He couldn't go into a drugstore and buy Penthouse or
8 PLayboy, I think you said he was ten years old, they can't
9 tell that to minors. He couldn't go into an adult book
10 store, he couldn't go into an adult movie theater and he
11 can't get that stuff.
12 So he can pick up a paper and see a very graphic
13 picture of that, but he can't get our stuff -- this stuff as
14 easily.
15 JUDGE SLOVITER: If he subscribed, I don't know if
16 these are subscription magazines or anything, but if he
17 subscribed, if his parents subscribed to them they'd come
18 through the mail and Congress couldn't, could it, say that
19 you can't let the child look in the centerfold?
20 MR. COPPOLINO: No, Congress can't regulate every
21 problem but it can regulate problems in some ways. And what
22 it has done is try to regulate this problem in a I think
23 fairly described a least restrictive manner, certainly as
24 with respect to the content providers because these, the
25 content providers certainly for commercial sites because
129
1 these folks can avail themselves of these very specific
2 defenses.
3 JUDGE SLOVITER: Isn't a key to your argument that a
4 child, person under 18, could inadvertently come across some
5 of this material? I notice that you put a lot of focus on
6 that evidence during the evidentiary portrayal. Is that --
7 and in your brief. Is that inadvertence a key to your
8 argument?
9 MR. COPPOLINO: Well, I'm not sure I would describe
10 it as -- well, I certainly wouldn't describe it as the key or
11 a key. I think it's an important part of the argument to
12 show to the Court, number one, that the Government has a
13 compelling interest here and, number two, that this material
14 is pervasive and you should take that into account.
15 JUDGE SLOVITER: The Government's -- yeah, but let's
16 go back. What is the connection between the Government's
17 interest and the what we'll call for this point inadvertence?
18 MR. COPPOLINO: Well, here is the connection. You
19 can get this kind of material on the Internet by looking for
20 it and I believe the evidence shows you can get this kind of
21 material when you're not looking for it.
22 Certainly you can get -- you can get right up to it.
23 And I think that the reason we put those searches in Mr.
24 Schmidt's testimony, we put both kinds. You're a 14 or 15
25 year old, you're familiar with the ways of the world, you
130
1 want to go out and find stuff you can't get in the drugstore
2 or the book store, you can find it. You can look for and
3 find it.
4 But you are someone who is searching for a Disney
5 character or for something on media images of women, the
6 journalism student at -- in a high school who is searching
7 for that and you can be confronted then with sexually
8 explicit, links to sexually explicit sites. And I would
9 suggest to the Court this demonstrates that the Government
10 does have a compelling interest here and underscores what
11 that interest is.
12 JUDGE SLOVITER: If we-- if we find -- and I'm not
13 saying we will, we haven't even talked to each other for
14 weeks -- well, they may have, but I haven't. If we -- they
15 are on the same floor.
16 If we find that the evidence does not support the
17 proposition that there is a significant problem of
18 inadvertently chancing upon such material because you have to
19 do a lot of clicks or because there's a warning, what would
20 remain of the Government's contention of a compelling
21 Government interest?
22 In other words, is there a compelling Government
23 interest as a matter of law to shield 15 year olds from -- 14
24 year olds from material they want to see and their parents
25 don't care whether they see or not?
131
1 MR. COPPOLINO: Your Honor, I think that virtually
2 all of our interest remains. And I'll tell you -- I'll tell
3 you why. I think that to just evaluate the case on this
4 issue of inadvertence, of surprise, it's a factor, it's
5 something to take into account. Certainly these hits are
6 jarring when you're looking for something that's not sexually
7 explicit, but the key point is the ease with which minors --
8 anybody, but minors in particular can get access to this
9 stuff and that is the important thing. Not whether --
10 JUDGE SLOVITER: If they want it.
11 MR. COPPOLINO: If they want it.
12 JUDGE SLOVITER: And whether or not the parents
13 care? Because I thought in reading the conference committee
14 that it all dealt with, you know, they want to help the
15 parents.
16 MR. COPPOLINO: Well, yes, they do want to help the
17 parents. Here's the point, your Honor. A child or a minor,
18 let's take a junior high student or someone over 13, as I
19 said, he can't go buy it in the store, he can't go into the
20 movie theater, he can't go into the adult book store, but he
21 can't --
22 JUDGE SLOVITER: He can go into the library in
23 Pittsburgh.
24 MR. COPPOLINO: Well, he can't get this stuff in the
25 library.
132
1 JUDGE SLOVITER: Oh.
2 MR. COPPOLINO: And he can click it on and get it,
3 and that's really, I think, the heart of the interest. If
4 he knows what he's doing or if it's an accident, but the key
5 to the interest is that you can get it, you can get a lot of
6 it, you can get it easily and you can get it across a range
7 that has never been available before to minors. And that's
8 the significant interest at stake.
9 JUDGE DALZELL: Books, what, I keep coming back to
10 that question: what is it about this medium which our
11 friends, I think you would have to agree with them, have
12 established is this most democratic of mediums that the human
13 mind has come up with yet, what is it about this medium that
14 makes it different from print in terms of the constitutional
15 protection it should receive?
16 MR. COPPOLINO: Uhm, well, I'm not sure I really
17 understand the question but I'm going to try to -- I'm going
18 to try to answer it this way. This is a telecommunications
19 medium which pipes down to the home this kind of material
20 along with other kinds of materials that would be useful to a
21 child, educational materials, scientific materials and so on.
22 If you talk about the print medium, the print medium
23 in your newspaper there, you're not going to get access to
24 this kind of patently offensive, sexually explicit material
25 at all. You're not going to get access to that kind of stuff
133
1 unless you go buy it, but this you can.
2 JUDGE DALZELL: Above the fold in the New York Times
3 just within the last two weeks above the fold was a story on
4 female genital mutilation in Africa, it had a photograph of a
5 woman who was scared to death to go back there, and I'll tell
6 you, I think -- it's a terrible problem but I would be a bit
7 concerned about my son reading it above the fold.
8 MR. COPPOLINO: Sure.
9 JUDGE DALZELL: Should we have that newspaper
10 decency act?
11 MR. COPPOLINO: I'm not going to advocate the
12 newspaper decency act, your Honor.
13 JUDGE DALZELL: So your argument really is that this
14 is like broadcasting?
15 MR. COPPOLINO: My argument is that this is much
16 closer to broadcasting than it is to print. And in a few
17 years, as Mr. Bradner said, it will be virtually the same as
18 broadcasting. You're not going to have a handful of
19 entities, but you're going to have -- you're going to have
20 this very pervasive -- if I could just make one last point,
21 your Honor.
22 JUDGE SLOVITER: No, it won't be last because we
23 have questions.
24 MR. COPPOLINO: Mr. -- Mr. Burrington and I believe
25 Mr. Bradner, but certainly it is a fact in the record that
134
1 the Internet can be piped through not just through a 14.4 or
2 a 28.8 modem, but through coaxial cables, that's a coming
3 technology, it's being tested out in the market right now.
4 That's going to zoom the stuff down to the
5 marketplace faster than we can do now with these, with even
6 this T-1 line that we had in here. And, and as I have
7 indicated, you have more than just pictures and text. You're
8 going to have images, you're going to have movies. It's
9 going to be like cable television more than anything else.
10 JUDGE DALZELL: If we hold, for example, that a
11 chatroom bears no resemblance to anything on the broadcast
12 medium, do you lose?
13 MR. COPPOLINO: No, I don't -- I don't think we lose
14 but I do think that the chatrooms and some of the other
15 medias present different questions and admittedly tougher
16 questions.
17 JUDGE DALZELL: But you would agree with me that the
18 chatroom bears no resemblance whatever to a broadcast medium?
19 MR. COPPOLINO: Well, one thing --
20 JUDGE DALZELL: It's interactive, people are talking
21 to one another --
22 MR. COPPOLINO: Mm-hmm.
23 JUDGE DALZELL: -- not the telephone.
24 JUDGE BUCKWALTER: Well, aren't the broadcast media
135
1 shows interactive, too, some of them, as I recall? The talk,
2 the call-in shows and so forth?
3 MR. COPPOLINO: I think that's right, but even --
4 even with --
5 JUDGE BUCKWALTER: Are they --
6 MR. COPPOLINO: The one thing you have to bear in
7 mind on the interactive computer service is that it's
8 generally run over telephone lines and a chatroom certainly
9 is not -- is not all that different from communicating over a
10 telephone line although you can see it in print on your
11 screen. And Dial-A-Porn comes over the Internet. You can
12 have audio applications.
13 JUDGE DALZELL: But Dial-A-Porn doesn't go beyond
14 porn, by definition. The Supreme Court made it absolutely
15 clear that's all they were dealing with was porn, they
16 weren't dealing with the generic question of whether Congress
17 has the power to control a conversation that I have with
18 Chief Judge Sloviter or, I guess more accurately for this
19 case, that she has with my ten year old son.
20 MR. COPPOLINO: Your Honor, that's right. But were
21 kind of back now to does this indecency standard cover every
22 time someone uses a dirty word in a chatroom when they get
23 mad. And I would suggest that that's really not what it's
24 intended to cover and the chatrooms do present tougher issues
25 than the commercial Web sites where it is clearly
136
1 constitutional. But as Mr. Baron will indicate this
2 afternoon, there are methods that if you -- there are methods
3 where if you're going to have a highly sexually explicit
4 chatroom discussion, that there are methods that people can
5 take to screen access even to that, screen access by minors
6 even to that kind of stuff, that this is not -- there are
7 not -- there are not, as Mr. Ennis says, no possible defenses
8 even for those media.
9 But if I could maybe --
10 JUDGE SLOVITER: I'd like to get back to the
11 Government's first, basic First Amendment position because
12 I'm -- and I know we've thrown this at you, but we've been
13 bottling this up as we read it.
14 If -- does the Government have the right to make it
15 a criminal offense for a 14 year old to read Henry -- let's
16 assume that Henry Miller's "Tropic of Cancer" would be
17 indecent under the statute. I mean, as I recall from when I
18 read it and I was probably not 18 at the time, there -- I
19 mean I think I might find it much more indecent now than I
20 did then, but my --
21 (Laughter.)
22 JUDGE SLOVITER: -- sensibilities have changed.
23 But I'm thinking of like the most indecent,
24 potentially indecent book I ever read. And let's assume, I
25 think, can we assume that "Tropic of Cancer" would be
137
1 indecent in some communities?
2 JUDGE DALZELL: Oh, yes, I think so, in some
3 communities.
4 JUDGE SLOVITER: Certainly patently offensive, the
5 language, the subject matter and everything else. Do you
6 claim that the First Amendment's extension of rights to read
7 that kind of material don't cover a 14 year old? I just want
8 to -- yeah, do --
9 MR. COPPOLINO: Don't cover a 14 year old? Well, I
10 do think that, first of all, if you assume the conclusion
11 that it is indecent --
12 JUDGE SLOVITER: Yeah, let's --
13 MR. COPPOLINO: -- which I'm not quite sure I agree
14 with. But if you take that assumption, I do think that
15 Congress can draw a bright line, that it's very difficult to
16 differentiate between the maturity levels and the abilities
17 of minors at different ages to deal with this stuff.
18 Now, certainly a 14 year old might be able to deal
19 with it better than an eight year old that probably couldn't
20 even read it. So there are differences between minors, I
21 don't dispute Mr. Hansen's point on that. I think the
22 problem though is once you try to move that line down and try
23 to capture the more mature minors, you're going to have a
24 terribly difficult problem regulating that. And therefore I
25 think Congress is entitled to say age of, you know, age of
138
1 adulthood, age 18, is the line that we're going to draw here.
2 Now, you're assuming that this book is indecent and
3 I'm not sure. I mean I read "Catcher In The Rye" in high
4 school and I wasn't 18 yet.
5 JUDGE SLOVITER: I think this is -- this is a
6 different medium. I think that this is a different, as I
7 recall I think this is far different from "Catcher In The
8 Rye."
9 JUDGE DALZELL: Oh, very different.
10 JUDGE SLOVITER: And I think they even tried to
11 keep it out of this country at some point.
12 JUDGE DALZELL: They did, they did.
13 MR. COPPOLINO: I'm going to go buy it, in fact.
14 (Laughter.)
15 JUDGE DALZELL: It's really not that good.
16 JUDGE SLOVITER: I don't think it is now but one
17 might have argued that it had some benefit at that time
18 because it opened the freedom to read literature like this.
19 I don't know.
20 But I'm just interested in the basic proposition
21 because we're dealing with the Government's interests. I
22 mean I am coming back to this case because the question is,
23 is there a compelling Government interest?
24 And if you don't deal with the inadvertence, if you
25 say well, inadvertence is not really a problem, there's more
139
1 of a Government interest here and you say yes, there is and
2 it's not just the inadvertence, then the question is how much
3 Government interest has been sustained by the case law in
4 keeping children from material that is not purveyed for
5 prurient interests by commercial enterprises, and that's a
6 very basic question that we have. And --
7 MR. COPPOLINO: Yeah, I -- I'm not aware of the
8 cases which have said that the Government has a compelling
9 interest in shielding minors from access to literature of
10 this -- I'm not quite sure what this is so I'm not going to,
11 I'm not going to talk about that. But let's just assume
12 serious literature that might contain sexually explicit
13 scenes in it, the Government's compelling interest has been--
14 JUDGE SLOVITER: Themes.
15 JUDGE BUCKWALTER: What is the Government's
16 compelling interest in this case?
17 MR. COPPOLINO: The Government's compelling interest
18 has been in this case and in many cases like it has been
19 consistently upheld as to protecting minors from exposure to
20 non-obscene materials, that is materials that are not obscene
21 as to adult but nonetheless harmful to minors. And when you
22 look at every one of those cases, whether it's the indecency
23 cases or the harm to minors cases, you are talking about the
24 kinds of sexually explicit materials we've put forward. And
25 we are suggesting to the Court that that is the compelling
140
1 interest that is here. The plaintiffs --
2 JUDGE SLOVITER: But we didn't, but they didn't put
3 a harmful to minors provision in. We have to read it in?
4 MR. COPPOLINO: No, your Honor, the cases involving
5 non-obscene mater-- materials that are not obscene as to
6 adults but harmful to minors are both the harmful to minors
7 test and the indecency test. In Sable and in these cases
8 implying the indecency standard, they point that right out.
9 They say the Court in -- Supreme Court in Ginsburg
10 and Ferber says that the Government has a compelling interest
11 in protecting children from material that is not obscene as
12 to adults but harmful to minors and in this case they're
13 using the indecency standard, I don't think that that really
14 matters much.
15 I could probably conclude with two --
16 JUDGE SLOVITER: Go ahead.
17 MR. COPPOLINO: I could -- I could conclude now, I
18 could start again this afternoon. The only --
19 JUDGE SLOVITER: No, go ahead, you finish up
20 yourself.
21 MR. COPPOLINO: Okay. That would be probably a good
22 idea. I mean the -- just the one point I want to make, the
23 one --
24 JUDGE SLOVITER: And you've done beautifully.
25 MR. COPPOLINO: The one -- two final points. On
141
1 this issue of over-breadth and I think least restrictive
2 means, I would ask the Court to very seriously consider that
3 there is a substantial valid application of the statute as to
4 the types of materials that we have submitted and you don't
5 have to re-write the statute to find that. I think we
6 presented you the evidence that there is a serious problem
7 and I think the defenses, certainly the credit card and
8 access code defenses easily apply, it can apply and the
9 providers can do it.
10 Let me just touch briefly on the --
11 JUDGE SLOVITER: Could I ask you another question?
12 MR. COPPOLINO: Okay.
13 JUDGE SLOVITER: Okay, I didn't think you'd say no.
14 (Laughter.)
15 JUDGE SLOVITER: Mr. Baron is going to deal with the
16 defenses but as I understand, you're saying that if it's
17 material with a serious redeeming value it wouldn't be
18 covered and --
19 MR. COPPOLINO: No, I'm saying that material that as
20 a whole has a serious redeeming value --
21 JUDGE SLOVITER: Okay.
22 MR. COPPOLINO: -- it shouldn't be covered by this
23 standard such as the materials the plaintiffs have submitted.
24 JUDGE SLOVITER: Now, in the conference committee
25 report the conference committee report says they would --
142
1 they are not really a problem because there is no intent to
2 offend.
3 Do you think we have to read into the statute an
4 intent to offend?
5 MR. COPPOLINO: well, I think that that language is,
6 I think that intent to offend is such a significant standard
7 that that would be a lot to read that intention standard into
8 the statute, but I think it underscores Congress' intention
9 that the material be limited to -- to the types of materials
10 that they specifically identified in the Congressional
11 Record, to the types of materials that I am talking about.
12 But I don't --
13 JUDGE SLOVITER: Is your answer a yes or a no?
14 MR. COPPOLINO: I guess my answer is I don't think
15 you can read into the statute an intent to offend cause it's
16 not in the statute.
17 JUDGE SLOVITER: Even though that was the reason --
18 well, neither are a lot of the other things. But that was
19 the reason the conference committee report gave for exempting
20 in a way although not explicitly material of a serious
21 redeeming value.
22 MR. COPPOLINO: Yes, but my arguments with respect
23 to your construction of indecency and over-breadth I think
24 are fully comfortable within the statutory language, to read
25 in an intense standard is more. And I would just suggest to
143
1 the Court that that language in the conference report
2 underscores the parameters and the limitations of the
3 indecency standard, but I think beyond that I really couldn't
4 ask -- tell the Court to construe it that way because it's
5 just -- it's just not plain from the statute.
6 The -- I guess the last point, I'll make this fairly
7 quickly. As you know, I cross-examined Mrs. Duvall and I
8 think that the parental controls -- I just want to make a
9 point on the parental controls as a less restrictive means.
10 They are certainly very commendable products but I
11 think we saw a number of the flaws with those products which
12 suggest that they cannot by themselves serve this purpose.
13 And I think, just to sum it up in a nutshell, Mrs. Duvall I
14 think very candidly indicated that Surfwatch is constantly
15 trying to update. They started with 2,000 sites, they're now
16 up to about 8,000. There's four to eight hundred new sites a
17 week, there's a constant lag and there is a constant effort
18 to change, to chase up and catch up with these sites.
19 And, as the Court also saw in Mr. Schmidt's
20 testimony, sites change their names almost within a couple of
21 days. And therefore Surfwatch by itself and products like
22 that which try to identify sites or have key words can't do
23 the job. Key words don't necessarily get you there either
24 because you saw there's lot of exhibits that we submitted
25 that don't have a sexually explicit URL and they're not going
144
1 to get picked up on a key word search. So you've either got
2 to know what that site is, if you haven't found it already,
3 Surfwatch is not going to pick it up.
4 So I think -- I think our brief has made that point
5 pretty clearly and I guess I will -- I will stop there.
6 JUDGE SLOVITER: What scrutiny do we apply?
7 MR. COPPOLINO: Your Honor, I -- you apply the Sable
8 test, but you -- which is --
9 JUDGE SLOVITER: Is that strict scrutiny?
10 JUDGE DALZELL: That's strict scrutiny, sure.
11 JUDGE SLOVITER: Okay, that's all right.
12 MR. COPPOLINO: Taking into account my argument on
13 Pacifica.
14 (Laughter.)
15 JUDGE SLOVITER: Thank you very much. We will meet
16 again in an hour and we will begin with Mr. Baron.
17 Thank you, Mr. Coppolino.
18 (Court in recess; 12:46 o'clock p.m.)
19 AFTERNOON SESSION
20 (1:48 o'clock p.m.)
21 JUDGE DALZELL: Hello, Mr. Baron.
22 MR. BARON: Good afternoon, your Honors. Jason R.
23 Baron for the Justice Department.
24 I'd like to pick up where Mr. Coppolino left off, in
25 outlining what are the available affirmative defenses to non-
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1 commercial content providers on the Internet.
2 JUDGE SLOVITER: Before you do that, could you
3 address briefly, if necessary, my question which is whether
4 the availability of defenses -- the viability of the theory
5 that if you have defenses in the statute, assuming that they
6 were good defenses, that saves it from any over-breadth or
7 vagueness?
8 MR. BARON: I think you would need to restate the
9 question, your Honor. Is it in the context of other statutes
10 you're asking, or --
11 JUDGE SLOVITER: No, has any Supreme Court case held
12 that a criminal statute that has defenses in it is thereby
13 saved from overbreadth.
14 MR. BARON: I'm not aware of case law that parallels
15 the statute, your Honor.
16 JUDGE SLOVITER: Or is there any other statute like
17 this that talks in terms of defenses to a criminal statute?
18 MR. BARON: Other than the Dial-a-Porn context, I'm
19 not aware of one that dovetails with the words of this
20 statute.
21 JUDGE SLOVITER: I don't mean the words, I mean this
22 context that the existence of a defense is enough to save the
23 statute, that you have to consider it with the existence of a
24 defense.
25 MR. BARON: Yes, but it is the position of the
146
1 Government, however, that the broad nature of the affirmative
2 defenses that are part of this statute do allow for
3 sufficient defenses to be asserted so that there would not be
4 a substantial number of applications that would be subject to
5 the kind of overbreadth challenge that Mr. Coppolino was
6 discussing.
7 JUDGE SLOVITER: But you can't give us any
8 citations?
9 MR. BARON: Not today, your Honor. The touchstone
10 of --
11 JUDGE SLOVITER: We don't want more briefs.
12 (Laughter.) But go ahead, Mr. Baron, we'll hear you.
13 MR. BARON: The touchstone of what Congress intended
14 by way of the affirmative defenses that are set forth in the
15 CDA is of course the statute itself supplemented by its
16 legislative history. Congress not only provided for the
17 concrete defenses that are listed in E5(b) regarding credit
18 card, debit account, adult access code, adult personal
19 identification numbers, but they went further. The text of
20 223 E5(a) provides for a broad range of affirmative defenses
21 to be asserted by content providers based on their taking
22 reasonable, effective and appropriate actions under the
23 circumstances and in light of what is feasible based on
24 available technology. The statute represents a forward-
25 looking approach to what everyone concedes is an
147
1 extraordinarily creative, flexible and powerful new means of
2 communication.
3 The very words of the statute imply that what is
4 feasible under the circumstances based on available
5 technology today may change. Congress expected that it would
6 change. Thus, the statute does not consist of a static
7 snapshot of available defenses, but keys those defenses to
8 what is feasible to do under available technology.
9 JUDGE BUCKWALTER: And if none are available, then
10 that is a defense, too?
11 MR. BARON: Excuse me, your Honor?
12 JUDGE BUCKWALTER: If none are available, is that a
13 defense?
14 MR. BARON: The statute contemplates that there --
15 well, I believe the evidence of record shows that there are
16 certainly available defenses --
17 JUDGE BUCKWALTER: Well, we might discuss that
18 later, but --
19 MR. BARON: But the --
20 JUDGE BUCKWALTER: Maybe Judge Dalzell wants to
21 discuss it now. (Laughter.)
22 JUDGE DALZELL: Well, I mean tagging isn't available
23 now, is it?
24 MR. BARON: It has been the evidence of record that
25 as was evident from the first day of the hearings before the
148
1 Court that there are schemes that the available standards and
2 protocols of the Internet allow for putting in place, and
3 that the marketplace is poised to allow for tagging and
4 labeling schemes that are content selection schemes such as
5 Congress envisioned.
6 JUDGE DALZELL: But getting at what Mr. Hansen said,
7 which is to say this statute is effective immediately. But
8 for the TRO and then the stipulation and order of February
9 26th, this statute would be effective. Are we agreed? And
10 therefore those defenses would be effective immediately.
11 MR. BARON: Well, the power of the scheme that we
12 have brought forth is if this -- by plaintiff's own
13 concession this morning and by the testimony that you've
14 heard from plaintiff's own witness, Mr. Vezza, as well as
15 others, that if this hearing were being held in July or even
16 earlier, it would be expected that Microsoft and Netscape and
17 virtually all of the marketplace of browsers would be able to
18 assimilate a PICs compatible labels and by the force of our
19 argument other labeling schemes that are more generic.
20 So but for the fact that this was an expedited
21 schedule and the Court has wanted to go forward in settling
22 this matter on a facial challenge as fast as possible, we're
23 in May, we may be in a different place in July. That is the
24 thrust of the Government's position on tagging, that it's
25 poised, the marketplace is poised and the admissions there.
149
1 JUDGE DALZELL: But it's not a defense now because
2 it can't be. Nobody has -L18 because it was just Dr. Olsen's
3 idea that was born on or about April 1, 1996.
4 MR. BARON: It was certainly something that was
5 brought forward by our expert after the passage of the Act as
6 one way that a content selection standard as envisioned by
7 Congress in the conference report could go into widespread
8 effect.
9 Now, I --
10 JUDGE DALZELL: Now, since it's not available, since
11 we agree it's not available yet, right?
12 MR. BARON: Certainly the -L18 standard as proposed
13 by Dr. Olsen is not available today.
14 JUDGE DALZELL: And neither is the PICs available.
15 MR. BARON: It's certainly not widely available by
16 the evidence presented in this court.
17 JUDGE DALZELL: But what is available is, for
18 example, what Compuserve tried to do, isn't it? What more
19 could Compuserve have done than it did before the FBI visited
20 them?
21 MR. BARON: I don't think that's a good example,
22 your Honor.
23 JUDGE DALZELL: Well, but would you answer my
24 example? What more could Compuserve have than what it did,
25 assuming the CDA applied?
150
1 MR. BARON: Let me say, Judge Dalzell, that I am not
2 aware of all the facts and circumstances that have given rise
3 to the set of correspondence that was just filed with the
4 Court. And I will say that --
5 JUDGE DALZELL: I know no more than you do because I
6 read their motion.
7 MR. BARON: Correct, your Honor, and the evidence
8 that submitted as part of the correspondence back and forth
9 showed that the Justice Department was concerned that there
10 may be obscenity with respect to the particular transmissions
11 and forum at issue. And so the transaction was captioned as
12 the Communications Decency Act matter but the Communications
13 Decency Act is obviously broader than 223(d). Congress
14 amended various provisions of the statute, including current
15 existing obscenity law for on line communication.
16 So with that caveat, the question would be whether
17 the posting of material in a Compuserve directory which is an
18 adult directory and where parental controls are known to be
19 in place, if that's the hypothetical that I can sort of boil
20 -- boil down the Compuserve example --
21 JUDGE DALZELL: Well, it's not hypothetical --
22 right, and it's labeled, it's labeled adults only.
23 MR. BARON: Correct.
24 JUDGE DALZELL: And not in a titillating way as I
25 recall. It was just text. It was just text.
151
1 MR. BARON: I will take that as a given, your Honor.
2 The fact is that as we stated at page 62 of our post-hearing
3 brief about other available means by which content providers
4 could avail themselves of the affirmative defenses, and by
5 means of Mr. Keeney's (ph) letter in the Shea case, the
6 answer to your hypothetical would be, I would expect that
7 there would be an affirmative defense in this situation. But
8 that matter would have to be evaluated under the facts and
9 circumstances of the case. But clearly there's an
10 affirmative defense if there's that kind of posting under the
11 available technology today. But we have to go back to the
12 words of the statute.
13 JUDGE BUCKWALTER: So that right now, Mr. Baron --
14 I'm sorry to interrupt you, but this either indicates the
15 weakness of the Government's case or my lack of
16 understanding, which is considerable in some of these areas.
17 As I understand it now under 5(a) there is no way to take an
18 effective means -- for a speaker -- speaker to take
19 effective means to make sure that someone under 18 doesn't
20 get his material that is indecent or patently offensive.
21 MR. BARON: No, that's not correct.
22 JUDGE BUCKWALTER: What is the way? I thought there
23 was no effective way.
24 MR. BARON: We set out a number of ways in our
25 brief, in our post-hearing brief as well as in earlier briefs
152
1 in discussion before the Court.
2 JUDGE BUCKWALTER: Please tell me one of them. I
3 must -- maybe I don't understand.
4 MR. BARON: I will concentrate on tagging, because
5 it is the most simple and elegant solution. But you're
6 asking what other means are available. And what we said was
7 that --
8 JUDGE SLOVITER: Effectively --
9 JUDGE BUCKWALTER: That's not available now. That's
10 not available now and it's --
11 JUDGE SLOVITER: It's hypothetical.
12 MR. BARON: I think under a broad interpretation of
13 what is available, the technology exists for putting that
14 into place. It's just a question of, as Dr. Olsen said, four
15 hours of tweaking a Netscape proxy server to have 80 percent
16 of the market put into place. But conceding for the moment
17 the thrust of the question --
18 JUDGE SLOVITER: Effectively available and has been
19 shown to work, let's put -- is that a fair modification?
20 JUDGE BUCKWALTER: Yes, that's right, yes.
21 MR. BARON: Okay. But understanding your question,
22 we did put forth as a secondary means the means of
23 registering sites to make known to the world what your
24 material consists of.
25 JUDGE BUCKWALTER: I understand that, but that
153
1 doesn't do -- that's not effective at all, is it under the
2 present --
3 MR. BARON: Well, I disagree, your Honor.
4 JUDGE BUCKWALTER: Well, how is it effective? I
5 mean that person who registers his site, that doesn't
6 guarantee that someone under 18 won't get into it.
7 MR. BARON: Well, if the test, as plaintiffs would
8 posit it throughout their voluminous filings in this case
9 with declarations and their other papers -- their whole case
10 is that your Honors should rule against the statute because
11 it doesn't guarantee, in your words, or doesn't assure that
12 every minor in the United States --
13 JUDGE BUCKWALTER: Well, you don't have to do that,
14 but effective certainly means that it has to have something
15 more than no effect, or little, no or little effect.
16 MR. BARON: And the evidence shows that if
17 individual content providers make known to the world their
18 sites that would be otherwise within the scope of the CDA,
19 then that is enormously effective as compared with not making
20 their sites known.
21 JUDGE BUCKWALTER: Oh, well, as compared with not,
22 yes.
23 MR. BARON: And therefore the surfwatches, the
24 cyberpatrols, the major online services that either have in
25 place parental controls today or are imminently about to have
154
1 parental controls for not only their own proprietary systems
2 but also the Internet, can take advantage of knowing that
3 you're out there. We have heard extensive --
4 JUDGE BUCKWALTER: You have explained that and
5 that's the position that I understood from the evidence.
6 MR. BARON: And Congress did not say that one needed
7 to take an action so as to be 100 percent effective, 100
8 perfect. Obviously the case law suggests that enterprising
9 youth in a variety of contexts can overcome whatever schemes
10 are in place. So the question is, is there some reasonable,
11 appropriate and effective measures, and the Justice
12 Department has said it, both in this case as well as the
13 collateral case up in New York, that there are those measures
14 available today. The key is to put the burden on the content
15 provider to do something rather than nothing. Because
16 nothing means that left to its own devices, the parental
17 control software just won't be effective.
18 JUDGE BUCKWALTER: I understand that, but you're
19 saying that something as just simply tagging his material or
20 in --
21 JUDGE DALZELL: But the something -- what does the
22 something get you? That's what I'm getting at.
23 JUDGE BUCKWALTER: Yes, that's what I --
24 JUDGE DALZELL: The something that Compuserve did --
25 we don't have to hypothesize anymore. They did something and
155
1 it got them headlines in their local newspaper, in the
2 Washington Times and other newspapers that A, undoubtedly was
3 a catastrophe in the corporate life, and B, hurt their
4 business according to Mr. Ennis, which is at least a credible
5 hypothesis that it would do that. That's what you get paid.
6 If you're wrong, you're going to find that your company or
7 your organization is going to be the subject of a headline
8 saying that you're peddling smut.
9 MR. BARON: And I would submit to you, Judge
10 Dalzell, that Compuserve might have a problem today under
11 existing statutes going to obscenity independent of the
12 Communications Decency Act. That might be the reason for the
13 headline as well.
14 JUDGE DALZELL: All I can do is take your colleague
15 in another division at his word. And he cited the
16 Communications Decency Act. He did not cite 1864 or 1865.
17 He cited the CDA. So I'm taking him at his word, that's all
18 I'm doing.
19 MR. BARON: But the correspondence that is of record
20 in this action does explicitly say that the actions that were
21 taken by the Department of Justice in the sort of initial
22 look at this is possibly for obscenity provisions, not just
23 223(d). It does say that in the correspondence.
24 JUDGE DALZELL: Well, not the one that I saw, but
25 that's all right. Move on.
156
1 MR. BARON: It's a letter to Mr. Ennis signed by
2 Terry Lord that is at Exhibit 3 --
3 JUDGE DALZELL: I'm looking at the April 29th letter
4 --
5 MR. BARON: Right.
6 JUDGE DALZELL: -- the April 29th letter that was
7 sent to --
8 MR. BARON: There is a further letter.
9 JUDGE DALZELL: -- to the complainant --
10 MR. BARON: Right, there is a further letter at the
11 top of Exhibit 3 to plaintiff's motion which does indicate
12 that citizen complaints can be reviewed to the extent they
13 may relate to other possible Title 18 violations. And that's
14 really a key to understanding what's going on there.
15 JUDGE SLOVITER: Could I ask you the key -- well,
16 maybe one key. Is it your position, the Government's
17 position, not personally, that a content provider could avoid
18 criminal liability by tagging its material, or would some
19 other action also be necessary?
20 MR. BARON: Merely tagging by itself, just doing the
21 four key strokes, -L18 or putting a PICs-compatible label or
22 self-labeling is today not fully sufficient because you have
23 to do something more. The browsers of the marketplace have
24 not been tweaked or tuned to get that label.
25 JUDGE BUCKWALTER: Well, but what does the content
157
1 provider have to do with the browsers, in that example? I
2 mean I'm a content provider, I put on there -L18, there you
3 are.
4 MR. BARON: Right.
5 JUDGE BUCKWALTER: Now, I can't help it the browsers
6 aren't configured out there in the market.
7 MR. BARON: Well, that may be right, but the fact is
8 that the evidence by plaintiff's own case shows that the
9 browsers are going to move to a PICs-compatible labeling
10 format which fully assimilates the alternative suggestions of
11 character strings.
12 JUDGE BUCKWALTER: But the point that Judge Sloviter
13 made, I think, is that it is sufficient. All a person has to
14 do, a speaker, is to put -L18. I'm using that example, and
15 that's enough.
16 MR. BARON: We have said in our briefs that on the
17 condition that the marketplace has moved and the testimony
18 before you says that it will imminently, then it would be an
19 affirmative defense.
20 JUDGE SLOVITER: Mr. Baron --
21 JUDGE BUCKWALTER: That's the --
22 JUDGE DALZELL: -- the official position of the
23 department. The official position of the department was
24 expressed by the Acting Assistant Attorney General, the
25 Criminal Division, to our three colleagues in New York on May
158
1 3, 1996. And the most he would say is, and I quote, "Under
2 present technology, it is the position of the Department of
3 Justice that, absent extraordinary circumstances, such
4 efforts would constitute substantial evidence that a content
5 provider had taken good faith, reasonable, effective and
6 appropriate actions under the circumstances to restrict or
7 prevent access by minors to the covered material." Do you
8 find that comforting if you were advising a client? Oh,
9 don't worry, here's a letter from Mr. Keeney (ph). It just
10 says that the jury might acquit you. It doesn't say you
11 won't be indicted, does it?
12 MR. BARON: Well, your Honor, that's not the
13 statute. As plaintiffs would have you rule on it, what they
14 are asking you to say is to strike down the statute because
15 it doesn't as a per se matter establish in all cases what
16 individuals can do. But the statutory scheme, not only in
17 E5, but in the E6 provision, which talks about the FCC
18 describing measures which are reasonable, effective and
19 appropriate and that the use of such measures shall be
20 admitted as evidence of good faith efforts for purposes of
21 paragraph 5, the statute is written in the terms of
22 evidence --
23 JUDGE DALZELL: You mean the same FCC that gave us
24 the Merrill Hansen (ph) decision, that said that the purpose
25 was just one of many factors to consider.
159
1 MR. BARON: The Congress broadly prescribed that the
2 FCC has a role that it may describe these measures. Along
3 the way, the Department of Justice has in the context of this
4 action, as well as the collateral proceeding in New York,
5 sought to further make concrete what it is that content
6 providers can do. And they said it, that if you do these
7 measures it will be absent extraordinary circumstances,
8 substantial evidence of having an affirmative defense.
9 JUDGE SLOVITER: Mr. Baron --
10 JUDGE DALZELL: It doesn't say we won't prosecute
11 you.
12 MR. BARON: But that's not what the structure of the
13 statute is either. So --
14 JUDGE DALZELL: Well, in a First Amendment setting
15 surely you would agree with me that the chilling effect of
16 prosecution is something we need to consider.
17 MR. BARON: Of course, you may consider chilling
18 effect in First Amendment cases. But the -- but what
19 plaintiffs would have you do is penalize the Congress by
20 striking a statute which is very broadly worded with respect
21 to reasonable, effective and appropriate actions. And we've
22 set to put flesh on that both in our briefs and in Mr.
23 Keeney's letter which is not inconsistent with the briefs
24 that we've filed in this action.
25 JUDGE BUCKWALTER: It may be broadly worded but it's
160
1 impossible to comply with, it seems to me, under the evidence
2 that I've heard, except by virtue of the letter which you now
3 say or someone says it's -- that mere labeling will be
4 sufficient compliance. But --
5 MR. BARON: Not only is it not impossible to comply
6 with, it's very easy to comply with. Plaintiff's whole case
7 is--
8 JUDGE BUCKWALTER: The defenses are easy to comply
9 with?
10 MR. BARON: That the -- that the defenses, if the
11 content providers who are putting a material that is sexually
12 explicit within the definition of the CDA out into cyberspace
13 in various forms, if they take just simple measures to ensure
14 that the world knows that they're there, the Department of
15 Justice is saying that that's substantial evidence of an
16 affirmative defense.
17 JUDGE BUCKWALTER: That's not what the act says
18 though. My point is that's not what the act says, that's
19 what the Department of Justice says.
20 MR. BARON: Well, we have keyed our defense of this
21 act to the broadly worded provisions of E(5)(A) as well as
22 the conference report that talks about a content selection
23 standards.
24 And I asked Dr. Olsen whether his scheme was a
25 content selection standard, it is. The self-labeling scheme
161
1 that's embodied as part of the PICs methodology is a type of
2 content selection scheme for content providers. Congress set
3 it out, we're not departing or going further afield than
4 what's in the conference report.
5 JUDGE SLOVITER: We have before us a motion for
6 preliminary injunction. It seems to me that you are arguing
7 in your defense argument that there will be a way in due
8 course in which one could comply with the statute because the
9 brow-- the market -- and in your brief, the market will rise
10 to the occasion, et cetera.
11 Inasmuch as all we're dealing with is what is
12 available now because we're dealing with a preliminary
13 injunction, why doesn't the Government concede that a
14 preliminary injunction would be appropriate and wait for the
15 permanent hearing until those matters become available so
16 that they can be tested and see if even -- I mean these are
17 the product of Mr. Olsen's creative imagination -- Dr.
18 Olsen's creative imagination. They may work and they may not
19 work.
20 But at the moment we haven't seen anything that does
21 work that wouldn't also effectively block some of the
22 material from adults. And therefore why this big challenge
23 to the preliminary injunction part of it until the market
24 catches up?
25 MR. BARON: Well, we -- I have several responses to
162
1 that.
2 JUDGE SLOVITER: Yeah, and I'd be interested.
3 MR. BARON: It's not Dr. Olsen's imagination, it is
4 the testimony of plaintiff's own witnesses, both with respect
5 to Mr. Bradner's extensive testimony on the standards and
6 protocols of the Internet and Mr. Vace's testimony about the
7 W-3 consortium.
8 There is a creative genius in the Internet other
9 than Dr. Olsen's own creativity.
10 JUDGE SLOVITER: Yeah, but Dr. Olsen's plan depends
11 on the content provider doing this whereas, as I understand
12 it, the PICs plan necessarily involves the receiver who is
13 willing --
14 JUDGE BUCKWALTER: Well, a proxy --
15 MR. BARON: Or third-party labeling services, a
16 complex scheme --
17 JUDGE SLOVITER: So there's a -- I think that --
18 yeah. That's a very big difference.
19 MR. BARON: -- where parents would be relying on any
20 number of sources other than the content providers, that the
21 burden is not on the content provider to do anything,
22 although it allows for it, but that Congress would require
23 it.
24 To respond to the point, this --
25 JUDGE SLOVITER: I mean how can we sustain it today
163
1 based on some hypothetical catching up in the marketplace in
2 the future? Is really what I'm troubled about.
3 MR. BARON: I would hope, your Honors, that an
4 aspect of your decision would be an acknowledgement of the
5 substantial, if not overwhelming, testimony that the
6 marketplace is poised to provide a tagging scheme which would
7 be a defense under the CDA so that the marketplace, this
8 litigation and the marketplace will catch up with each other.
9 But short of --
10 JUDGE SLOVITER: Nobody -- nobody said it was really
11 working, as I -- I mean except for soft spots which I, but my
12 reaction was it was pretty minuscule, as you pointed out in
13 cross-examination, in the marketplace, this all is including
14 PICs, something that is supposedly about to happen that all
15 sorts of things can happen that will affect that.
16 And I, just as a practical matter, they put on
17 evidence or testimony of chill or possible -- of chill and
18 that certainly is credible testimony, how can -- how can we
19 as a matter of judicial responsibility sustain against that
20 chill on the basis of what isn't there now? And that's my
21 basic question to you as on the defenses.
22 MR. BARON: Well, obviously if the Court were
23 inclined to say there are no available defense under E(5)(A),
24 then one -- as of today, then one possible action is to
25 suspend implementation of E(5)(A) as opposed to E(5)(B), for
164
1 a period of time pending development of the tagging schemes
2 in the marketplace.
3 But I am not willing, as I stand here, to concede
4 that the other available means set out in our brief, which
5 include registration or posting to limited participation
6 forums or other matters that are set out --
7 JUDGE DALZELL: For the credit cards, but of course
8 the people who do that already are the people who are the
9 pornographers.
10 MR. BARON: Well, and there were a variety of other,
11 right, and access codes and third-party registration.
12 JUDGE DALZELL: So the only thing that you're going
13 to prevent if the CDA is sustained are the teasers.
14 MR. BARON: I would beg to differ, your Honor,
15 because there has been testimony from Dr. Olsen, and I
16 realize that there is cross testimony on this, that there are
17 a number of content providers or organizations, non-profits,
18 who can put in place third-party registration schemes as a
19 technical matter or come up with other types of access
20 restriction and proxy server schemes. His extensive
21 declaration on that is part of the record.
22 JUDGE DALZELL: Let's take Mr. Kuromiya's group
23 which is a non-profit group which as I recalled his
24 testimony, of very modest means, okay. So for credit card
25 identification, the evidence is that unless it's accompanied
165
1 by a commercial transaction, the verifier is going to charge
2 you something.
3 I think he testified that there were -- just pick a
4 number, 20,000 hits a month, okay? That's $20,000 right
5 there, that's $240,000 per annum that I suspect this
6 organization doesn't have for credit card identification.
7 Now, wouldn't you agree with me that Mr. Kuromiya's
8 group, that credit card identification is a non-starter for
9 him?
10 MR. BARON: Uh, I --
11 JUDGE DALZELL: Because it would come out of their
12 pocket.
13 MR. BARON: I'm not sure I would want to concede all
14 the hypothetical facts in that because, as the Court is well
15 aware, there has been substantial testimony about what hits
16 mean and how it actually translates into real individuals
17 where you would have to do a verification.
18 JUDGE DALZELL: So whether it's 16,407 people
19 instead of 20,000, it's still more money than he has.
20 MR. BARON: I would concede that the credit card
21 defense may not be available to each and every individual who
22 is a content provider, that is correct.
23 JUDGE DALZELL: And in fact, since we're talking
24 about Mr. Kuromiya's group, he wants to reach people under
25 18. So is that an admission for the Grand Jury? And you
166
1 know he's going to show them some very graphic depictions of,
2 as I understand it, the male sexual organ, at least the male
3 sexual organ. Okay? He wants to do that and he's probably
4 going to do it in a titillating and pandering way because he
5 wants to get their attention, that's his purpose.
6 MR. BARON: Well, I want to put --
7 JUDGE DALZELL: So should we say to him get, you
8 know, we'll give you the guidebook to Federal correctional
9 institutions?
10 MR. BARON: Well, I want to put aside as a legal
11 matter for this, for the purposes of this part of the
12 discussion whether or not he -- his actions would meet or not
13 meet the legal standard of patent offensiveness.
14 But he certainly does have a variety of means today
15 to segregate out that portion of his site and perhaps use a
16 third-party registration scheme or some other scheme short of
17 merely relying on tagging.
18 JUDGE DALZELL: No, perhaps I'm not being clear
19 enough. He doesn't want to block to people under 18, he
20 wants to reach them. They're sexually active, he just
21 doesn't want them to die of AIDS, that's all. So he wants to
22 reach them, he wants to entice them to learn about safe sex.
23 MR. BARON: I can't respond to an individual --
24 JUDGE DALZELL: Is that bad faith on his part?
25 MR. BARON: -- who doesn't want to take advantage of
167
1 the affirmative defenses, notwithstanding a known quantity
2 that he might otherwise be liable under the act. But let
3 me--
4 JUDGE DALZELL: So he ought to just take his
5 chances.
6 MR. BARON: But let me say this: the only proposal
7 that the Court has heard as an alternative to putting the
8 burden on content providers that is -- that comes in any way,
9 shape or form in terms of effectiveness is a proposal to
10 block the entire Internet based on unrated sites. And if Mr.
11 Kuromiya doesn't want to rate his site or take any other
12 affirmative action, his site would be blocked under Mr.
13 Ennis' theory of --
14 JUDGE DALZELL: Ah.
15 MR. BARON: -- the PICs compatible label.
16 JUDGE DALZELL: But that's because the parents of
17 the under 18 year old user have made that decision, a very
18 big difference, you would admit, than the Government making
19 that decision for them.
20 MR. BARON: Well, the fact is that the scheme, I
21 mean the ironic position of the parties before the Court
22 today is that we want the Internet to be available to
23 children based on the findings of Congress that said this is
24 a dramatic, wonderful medium of educational value. And if
25 you look at the proposal to block everything, it makes no
168
1 sense. 99.9 percent of the Internet or thereabouts, as Dr.
2 Olsen testified, would be blocked if you're merely relying on
3 third-party labeling schemes such as envisioned by PICs to
4 label a few thousand or even tens of thousands of URL's.
5 Professor Hoffman's testimony was at last check
6 there are 22 million URL's just on the World Wide Web. There
7 is testimony in this action that the World Wide Web is
8 growing every two months, that the Internet is doubling nine
9 to -- every nine to twelve months.
10 The third-party labeling schemes such as envisioned
11 just can't keep up and anybody can do the mathematics to show
12 that the effect of a PICs scheme that blocks sites is going
13 to block virtually everything.
14 JUDGE DALZELL: So it's better for Mr. Kuromiya to
15 bear the risk of going to a Federal correctional institution
16 because he guesses wrong?
17 MR. BARON: Uh --
18 JUDGE DALZELL: As apparently Compuserve guessed
19 wrong.
20 MR. BARON: Your Honor, I just will not concede that
21 Mr. Kuromiya is within the scope of the act for the purpose
22 of this discussion. And if he doesn't want to avail himself
23 of any access measures, well, then -- then he can take the
24 consequences.
25 JUDGE SLOVITER: You referred us to 5(B) as an -- I
169
1 think you said, well, if 5(A) is not effectively available
2 right now, they still have 5(B).
3 Is 5(B) available, just fill me in on this, to chat
4 groups and news groups and -- or is it the 5(B) being credit
5 card, debit account, adult access code or adult personal
6 identification number. There are lots of speakers back and
7 forth in this whole other area, other than the commercial
8 pornographers. Is 5(B) directed toward them?
9 MR. BARON: There may be -- there are applications
10 that non-commercial providers can avail themselves when
11 they're in those applications that some of these defenses
12 might make sense. It might make sense based on available
13 software on a particular proprietary chat room to have an
14 access code, for example.
15 JUDGE SLOVITER: But you agree that by and large
16 these are not effectively available to most chat rooms and
17 you know the stuff, news groups, is that what they're called?
18 JUDGE DALZELL: Right, right.
19 JUDGE SLOVITER: Chat rooms.
20 MR. BARON: Well, they have to parse it by
21 application but there, certainly there the availability
22 differs by the various applications.
23 JUDGE SLOVITER: I understood your brief to say that
24 it was mostly designed for --
25 JUDGE BUCKWALTER: For Web sites and bulletin
170
1 boards, isn't that right, for --
2 JUDGE SLOVITER: Commercial, yes.
3 MR. BARON: It is certainly possible to utilize
4 E(5)(B) for Web sites and bulletin boards and certainly in
5 the commercial context it's done all the time.
6 JUDGE SLOVITER: Now, as a matter of law, if you are
7 telling us that we should sustain this -- I mean we do deal
8 with law -- if you are telling us that we should sustain the
9 statute based on the availability of defenses and defense
10 5(A) is not effectively available now and defense 5(B) covers
11 at most only some but not most of the Internet users, then
12 would we be effectively, as your brief seemed to suggest, at
13 least to me, cutting the statute down to apply only to the
14 commercial type user and then we would put in the discussion
15 with Mr. Coppolino who was really purveying pornographic
16 material?
17 MR. BARON: You could certainly, short of striking
18 the statute, you could parse the statute in that manner.
19 JUDGE SLOVITER: Isn't that what we would have to do
20 based on what you say in your brief?
21 MR. BARON: Well, your Honor, let me go back. I
22 understand that there is difficulty accepting an argument
23 that because of the marketplace being poised to do something
24 and the widespread availability today not being there, that
25 the main proposal, which is the elegant, simple proposal that
171
1 we put forward may not be an available defense.
2 But we've suggested alternatives and I am not
3 willing to stand here and concede that notions of letting
4 your site be known in cyberspace through the registration
5 process that we've suggested, the multiple ways that you can
6 make it known isn't an available defense that the Justice
7 Department would take as substantial evidence en route to
8 where we're going to be in a couple of months time which is
9 widespread availability of tagging schemes.
10 Well, your Honor, with all --
11 JUDGE SLOVITER: Maybe, I mean, you know.
12 MR. BARON: Well, we've heard evidence of the --
13 JUDGE SLOVITER: And we saw that they couldn't get,
14 what couldn't we get on the -- oh, we couldn't get London or
15 something.
16 JUDGE BUCKWALTER: We couldn't get Paris so we
17 settled for London.
18 JUDGE SLOVITER: We couldn't get Paris.
19 MR. BARON: No, there are --
20 (Laughter.)
21 JUDGE SLOVITER: No, I mean all I'm suggesting is
22 that -- and it wasn't really facetious. All I'm suggesting
23 is that technology doesn't always go where you expect it to
24 go. Space ships blow up, also, I mean, so we cannot assume
25 that something will work until it has actually worked.
172
1 MR. BARON: But we're --
2 JUDGE SLOVITER: I mean --
3 MR. BARON: But your Honor --
4 JUDGE SLOVITER: And that's all I'm -- I'm
5 suggesting.
6 MR. BARON: With all due respect, we are not
7 operating in a vacuum where I'm making an oral argument prior
8 to an evidentiary hearing. We have had five days of
9 testimony. We have a consortium --
10 JUDGE SLOVITER: And all we got was hypotheticals so
11 that we expect that this will be available. I'm -- I'm
12 looking, I went through this evidence afterwards, based on
13 your brief, and I'm looking for specific examples of
14 operating systems in which your defenses would actually work,
15 not based on something that might happen if you put X
16 together with Y, but this is really working.
17 And except for Surfwatch which you kept pointing out
18 was minuscule, there isn't anything that's actually working
19 that you can point to, to say to a potential defendant: use
20 that. Is there?
21 MR. BARON: Well, I would disagree with that.
22 JUDGE SLOVITER: Well, what -- what would you point
23 us to in the evidence?
24 MR. BARON: I mean the findings that plaintiffs have
25 put in and the evidence of record would suggest that there
173
1 are other parental controls.
2 JUDGE SLOVITER: But what do you point us to?
3 MR. BARON: I can point you to the fact that the
4 major on-line providers either do or are about to implement--
5 JUDGE SLOVITER: Are not about to. Do now --
6 MR. BARON: -- parental controls.
7 JUDGE SLOVITER: This is the preliminary injunction,
8 what do they do now?
9 MR. BARON: For Compuserve or Prodigy, Cyber Patrol
10 is present. So it's a large subscriber base and there are,
11 there are a variety of parental control software products
12 that are out there. What we are suggesting is they are
13 known, they're known to the plaintiffs in this courtroom.
14 JUDGE SLOVITER: But the parental control software
15 doesn't provide a defense to the content provider, does it?
16 MR. BARON: I believe it, not by itself because it
17 doesn't work by itself because of delays and because of the
18 inefficiencies in relying on just sort of an ad hoc matter
19 for them to pick up sites, as we've got abundant evidence.
20 But what the -- the act puts the burden, Congress
21 put the burden on those that would put inappropriate material
22 for children up in cyberspace. And we should let that burden
23 stay where it is and make those individuals do something.
24 And what the -- we have suggested is that en route
25 to the widespread availability of a tagging scheme which, as
174
1 Dr. Olsen said, take four hours for Netscape to change their
2 proxy server to get 80 percent of the market and those kind
3 of actions, en route to that there are actions that the
4 providers can take today.
5 JUDGE DALZELL: Wait a minute, to beat a live
6 horse--
7 (Laughter.)
8 JUDGE DALZELL: -- Compuserve has used available
9 options and they're being reviewed, investigated by the FBI.
10 It's not over.
11 MR. BARON: I just will not accept that as a good
12 example because of the particular circumstances of the
13 referral being potentially on obscenity and we've cleared it
14 up in a letter.
15 JUDGE DALZELL: Even though the April 29 letter
16 never mentions it?
17 MR. BARON: Your Honor, well, the prior colloquy
18 would establish.
19 JUDGE DALZELL: No, we have to be -- this is deadly
20 serious to Compuserve, you know, deadly serious.
21 MR. BARON: And I would suggest that --
22 JUDGE DALZELL: And that's why a preliminary
23 injunction, you know, we have to do these things to get at
24 this now because it's having effects now. If we had any
25 doubt about it, we just read the Columbus Dispatch of the
175
1 last two days, right?
2 MR. BARON: Well, your Honor, the --there are
3 existing laws on the books about obscenity that are being
4 flouted by individuals, not just in cyberspace, but I mean
5 the fact is that there's a lot of stuff that would meet the
6 obscenity statutes independent of the passage of this act.
7 JUDGE DALZELL: Of course, and nobody is arguing
8 about that here.
9 MR. BARON: And the individuals are putting it up in
10 cyberspace and, you know, they may or may not be prosecuted.
11 Not everybody who drives over 55 miles an hour gets a ticket.
12 JUDGE SLOVITER: Thank heavens.
13 JUDGE DALZELL: Right.
14 (Laughter.)
15 JUDGE DALZELL: All I can tell you, Mr. Baron, is
16 when your colleague, Mr. Moore, wrote to Mr. Truman on April
17 29, 1996, the only statute he cited was to CDA, the only one.
18 MR. BARON: But -- but, your Honors, as a matter of
19 law the Communications Decency Act did amend obscenity
20 provisions and other provisions that are now part of this
21 litigation. And so I mean it could be fairly read as that.
22 JUDGE DALZELL: So maybe in the Communications Act.
23 MR. BARON: Well, it could be read as --
24 JUDGE SLOVITER: At the risk of incurring Judge
25 Dalzell's forever anger, let me get you to another point off
176
1 of the Compuserve. And that is you have in your brief, you
2 say in your brief, you make the argument that chat rooms
3 because that -- go back to my -- and other four that contain
4 indecent material could be segregated to adult areas by -- of
5 cyberspace, I don't understand that argument. Would you
6 explain? Is that what you meant when you said in our brief
7 we raise some others? I don't understand --
8 MR. BARON: Well, there's --
9 JUDGE SLOVITER: What testimony you're relying on
10 for that and what it would do.
11 MR. BARON: There -- there are other actions that
12 could be taken --
13 JUDGE SLOVITER: But you mentioned that one. Where
14 does that appear in the testimony?
15 MR. BARON: The -- the stipulation of the parties
16 and Dr. Olsen's declaration talks about various other
17 applications that you could have limited participation areas
18 or forums whereby you have a known list of people who have a
19 part of that cyberspace forum. It's a limited application.
20 But I'm not suggesting --
21 JUDGE SLOVITER: Well, wait a minute, would it need
22 to have a gatekeeper, a live gatekeeper in order -- you know,
23 in order to -- somebody -- is that what you mean? I guess
24 I'm trying to find out what you mean by this.
25 MR. BARON: It certainly could have a live
177
1 gatekeeper who allows access into a forum depending on
2 whether one is an adult. You wouldn't have to have a live
3 gatekeeper, you could set up something else.
4 JUDGE SLOVITER: Now, how do they find out if one is
5 an adult?
6 MR. BARON: Through either supplying credit card or
7 virtual card over the Net or other means by which --
8 JUDGE SLOVITER: But suppose it's not commercial so
9 you wouldn't have a credit card? I'm just trying, you know,
10 it's vague, I'm trying to put it all together.
11 MR. BARON: There are a number --
12 JUDGE SLOVITER: I'd like to sustain this but give
13 me arguments based on your record. Go ahead.
14 MR. BARON: Well, there are a num-- number of forms.
15 We have set out in the stipulation so the parties, beginning
16 that they were moderated forums but there's also limited
17 participation forums on list serves or one can set out news
18 groups that are of limited participation or in chat rooms
19 that allow for only adults to be admitted by a gatekeeper or
20 otherwise. But --
21 JUDGE SLOVITER: Okay, you mean a gatekeeper?
22 MR. BARON: Yeah.
23 JUDGE SLOVITER: Now, you also suggest that --
24 MR. BARON: I'm not suggesting that's a widespread
25 solution to all the problems in cyberspace, it's a secondary
178
1 matter that can be taken care of in certain applications.
2 JUDGE SLOVITER: You also suggest that where a proxy
3 server would be a vehicle that would operate with the
4 tagging. What is the current technology that would enable a
5 trusted proxy to obtain the relevant age information and
6 whose testimony do you rely on?
7 MR. BARON: Well, Dr. Olsen testified about the
8 ability to set up proxy servers to receive tags and also to
9 have access codes or hash codes, other type of methods could
10 be set up on particular Web sites to allow for adults coming
11 in.
12 JUDGE SLOVITER: Right, but with all due respect to
13 Dr. Olsen, this is all his hypothetical -- I mean he was, he
14 was really talking as a hypothetical analyst, this could
15 happen and this could happen and the other could happen, is
16 that not correct?
17 MR. BARON: Yes.
18 JUDGE SLOVITER: And there's no evidence that it's
19 currently feasible and happening, is there?
20 MR. BARON: Uhm --
21 JUDGE SLOVITER: If there is I'd like to know where
22 it is.
23 MR. BARON: Right. No, there isn't evidence that
24 these plaintiffs have put these particular measures into
25 effect, but the evidence suggests that it would be easy to do
179
1 so and they could avail themselves of the 223(E)(5)(A)
2 provisions for doing so.
3 Obviously it may not be available in all cases.
4 That's why we have emphasized the tagging and registration
5 scheme as a way en route to a better solution which is
6 feasible under the whatever available technology there is to,
7 as the way by which content providers can avail themselves of
8 a remedy.
9 I'm not sure how much --
10 JUDGE SLOVITER: And the tagging scheme is something
11 that Dr. Olsen thought of after you hired him as an expert as
12 I think the questions brought out when he testified?
13 MR. BARON: He certainly amplified on a tagging
14 scheme which was suggested itself by the legislative history
15 which suggested content selection standards and other
16 available measures would be an affirmative defense.
17 So we weren't inventing something out of whole
18 cloth, we are hooked to the conference report that suggests
19 that measures which plaintiffs here know very much about,
20 given that they represent some of the people that are behind
21 the PICs standard, can effectuate.
22 JUDGE DALZELL: But just in terms of the defense, if
23 Bianca's Smut Shack were to tag itself minus L-18, that
24 doesn't advance the ball one bit, does it, until the software
25 is out there?
180
1 MR. BARON: Well, Bianca's Cage actually does
2 represent affirmative actions which have been taken by a
3 content provider to provide their IP address, their computer
4 address in cyberspace to the unknowns for blocking purposes.
5 And that, I would submit, is an action which comes within
6 what we suggested at Page 62 of our brief as well as in Mr.
7 Keeney's letter as something that an affirmative action that
8 someone has done.
9 Now, it would have to be evaluated.
10 JUDGE DALZELL: But it has to be effective, doesn't
11 it? You have to, in order to avail yourself of the defense,
12 it has to be effective, doesn't it?
13 MR. BARON: Well, she has given notice in some sense
14 to the world that -- that that page exists. And we are not
15 suggesting that the burden is great with respect to
16 individuals. There are --
17 JUDGE SLOVITER: But how does that keep under 18's
18 from accessing it?
19 MR. BARON: Because the--
20 JUDGE DALZELL: Yes, that's exactly what I'm getting
21 at.
22 MR. BARON: Because it notify-- because it does
23 provide for some notification where she hasn't done -- she
24 hasn't availed herself of all the kinds of steps that we set
25 forth in both the letter and our brief, but the fact is that
181
1 there is some notification to the world of the blocking
2 software that's out there today so as it can be effectively
3 blocked from sectors of -- of -- that are either subscribed
4 to various ISP's or on-line services.
5 It doesn't -- I'm not going to represent --
6 JUDGE SLOVITER: How do you block -- yeah --
7 MR. BARON: -- that it's blocked for everybody.
8 JUDGE SLOVITER: But how do you block for Judge
9 Dalzell's ten year old and at the same time let Judge Dalzell
10 see it, if he wants to?
11 MR. BARON: The parents and would be availing
12 themselves of the turning on or off the software or the
13 browser that existed to either block or not block that site.
14 But they wouldn't even know. What if, just imagine, as I've
15 said, we are talking about a vast realm here, it's impressed
16 all the different applications, the Internet. This is a
17 complex area where it's not just one size fits all, there are
18 lots of applications. The fact is that through the
19 affirmative actions that content providers could take, they
20 can make a difference. And maybe they can't make as
21 effective a difference today as if I were back here in July
22 with the PICs standard having been adopted by Netscape and
23 Microsoft.
24 I assure you that if I were here in July and that--
25 JUDGE SLOVITER: You may be, you know, one way or
182
1 the other for a permanent injunction. You know, we're going
2 to -- whatever happens they'll ask for a permanent
3 injunction, I guess.
4 MR. BARON: As long as they employ me at the
5 Department of Justice and I'm still on the case, I'll be back
6 here. The fact is I may be back here --
7 (Laughter.)
8 MR. BARON: -- and arguing that there isn't a more
9 effective solution than what we argued at the preliminary
10 injunction hearing, but that's not to say that there isn't
11 something that content providers can do.
12 And again the irony is that it would be plaintiffs--
13 JUDGE SLOVITER: But it's not a negligence suit. I
14 think what Judge Dal-- what's been bothering, you know, Judge
15 Dalzell is, one, we're not sure that the U.S. Attorney's
16 Office in all of the districts is as reasonable as you and
17 Mr. Coppolino have been in the course of this litigation.
18 MR. BARON: Well, I -- your Honor, it is not just --
19 JUDGE SLOVITER: And there isn't --
20 MR. BARON: -- Mr. Coppolino and I, it is Mr. Keeney
21 who is the acting Assistant Attorney General for all the
22 District Courts in the United States --
23 JUDGE SLOVITER: Well --
24 MR. BARON: -- for all U.S. Attorneys making this
25 representation.
183
1 JUDGE DALZELL: And Mr. Lord.
2 MR. BARON: Yes. And individual cases may be
3 investigated under their facts and circumstances. Now,
4 obviously not under the stipulation for this --
5 JUDGE SLOVITER: Well, investigation is not a
6 prosecution, so I mean, you know, that I'm -- that troubles
7 me a little less, frankly, than, you know, anybody, the FBI
8 can investigate anybody and, you know, I'm not concerned
9 about that although there might be a chill involved in that
10 as well.
11 Go ahead, Mr. Baron.
12 MR. BARON: Well, I would hope not because it's an
13 isolated case and I'd hope that there wouldn't be. And we
14 are adhering to the stipulation that the Court entered.
15 JUDGE SLOVITER: We don't -- we don't deny that,
16 yeah. Or I don't think the plaintiffs deny that, I don't
17 know. Go ahead.
18 MR. BARON: I would submit to your Honors that we
19 are proposing simple solutions. What plaintiffs are
20 proposing are very complex ones. We have pointed out--
21 JUDGE SLOVITER: No, the plaintiff wants to declare
22 the statute unconstitutional, period.
23 MR. BARON: But the --
24 JUDGE SLOVITER: And that's not very complex, when
25 you think about it.
184
1 MR. BARON: -- solution --
2 (Laughter.)
3 MR. BARON: The solution for -- for the problem
4 represented that Congress was addressing is not to have
5 parents absorb the costs and absorb the complexity of going
6 out to third-party labeling schemes in the hope of catching
7 particular sites when there is simple actions that content
8 providers can take. That's the essence of our case. We
9 believe the affirmative defenses do work, that we have
10 suggested a wide array of them, both for the future as well
11 as for the present, we believe that those defense -- the
12 actions that content providers can take certainly represent
13 more effective deterrent than relying on Surfwatch alone.
14 And, for that reason, I'd submit that the
15 affirmative defense provisions should be upheld and the CDA
16 should be upheld.
17 JUDGE DALZELL: I don't know whether you or Mr.
18 Coppolino are dealing with the question of the simply talking
19 about defenses. In your brief at Page 37, Footnote 5 and the
20 text associated with it, you heap ashes on Ms. Warren's
21 concern about a prosecution and you ridicule her statement
22 that, quote, "All that is needed is for some person or group
23 of people in some community in the United States to have a
24 problem with my existence on line and to come to the Justice
25 Department with a complaint," close quote, as though that's
185
1 not depicting reality, that she shouldn't worry about that.
2 Of course, isn't that exactly what happened with
3 Compuserve?
4 MR. BARON: Oh, I --
5 JUDGE DALZELL: A group went to the Justice
6 Department with a complaint?
7 MR. BARON: There may be complaints, your Honor,
8 that is not a reason for striking down a statute and a facial
9 challenge. These cases have to be -- there is -- there are
10 powerful reasons to let the CDA be upheld and let the
11 marketplace and its creative genius as represented by many of
12 the plaintiffs and the organizations that are here in the
13 court to make -- to ensure that there are measures that
14 individuals can take.
15 And I submit that the briefing in this case is going
16 to look a lot different six months or a year or two years
17 from now because there will be, that if the CDA were upheld,
18 that at least for on a preliminary basis subject to further
19 proceedings, there will be a number of measures which I'm
20 sure the plaintiff's community will come up with as well as,
21 you know, others to ensure that individuals can screen or
22 block inappropriate material.
23 JUDGE DALZELL: But doesn't the record show --
24 doesn't the record show that they don't need a CDA for this,
25 that the market forces are so powerful, they exist out there
186
1 without a CDA. Because parents like me and -- are worried
2 about their ten year olds and twelve year olds and America On
3 Line and Compuserve and all these other folks better have an
4 answer soon or they're not going to have my business, or
5 people like me.
6 So that they don't need a CDA to have that goad to
7 come up with that technology, do they?
8 MR. BARON: I think the --
9 JUDGE DALZELL: I mean that's the record that's been
10 developed here.
11 MR. BARON: It's -- and there -- we are, the two
12 sides are not clashing completely on the issue of the -- the
13 facts that there are parental controls and certainly we are
14 relying in part that they do exist out there. But we have
15 also shown in the testimony Mr. Coppolino alluded to that
16 through cross-examination of Ms. Duvall through Mr. Schmidt's
17 testimony and through Dr. Olsen that the site, that the --
18 that the third-party software mechanisms just can't keep up.
19 And there are -- there -- it's a flawed remedy and there is a
20 tremendous amount of inappropriate material that will seep
21 through. And I think --
22 JUDGE SLOVITER: But you know --
23 MR. BARON: -- otherwise Congress is throwing up its
24 hands.
25 JUDGE SLOVITER: Well --
187
1 MR. BARON: And it can't do anything. I mean you
2 heard here an unwillingness on the part of plaintiff's
3 counsel to say that there was any effective legislation which
4 they would substitute for the CDA.
5 JUDGE SLOVITER: I wouldn't expect them to come out,
6 I wouldn't expect the American Civil Liberties Union, knowing
7 its history, to come up with something that required self-
8 tagging or to acquire some. I mean it's just that's an
9 unrealistic position.
10 But you knock their argument that we can use
11 parental controls on the ground well, it's really, and not
12 really effective and they won't be effective. And yet I'll
13 ask you the same question that I asked Mr. Coppolino, on the
14 other hand you're asking us to sustain the statute based on
15 defenses that are not even in being, much less I mean where
16 the technology is not even in being much less not effective.
17 And we won't know whether it could be effective until it's
18 tried and somebody doesn't come up and say to us: well, it
19 isn't really going to work because some clever 16 year old
20 knows how to get around it anyway.
21 Until it works we don't know how it -- until it
22 exists, it isn't working and until it works, we don't know
23 how well it will work.
24 MR. BARON: WEll, I --
25 JUDGE SLOVITER: I mean tell me what's wrong in that
188
1 problem statement of your position?
2 MR. BARON: You have to accept that on
3 representations going forth from defendants that there are
4 measures which would constitute, absent extraordinary
5 circumstances, substantial evidence of an affirmative defense
6 today. Mr. Keeney's letter says that as well as our brief.
7 If you accept that proposition, then in as applied
8 challenges it will -- the law will develop. And it will also
9 develop that in short -- in very short order there will be an
10 extremely effective solution as we suggested and as
11 plaintiffs have alluded to. So --
12 JUDGE SLOVITER: I don't want to --
13 JUDGE DALZELL: By the way -- by the way, for future
14 reference in the event this act would be upheld and I'm
15 instructing a jury as to burden of proof, who has the burden
16 of proof as to these defenses, affirmative defenses, what's
17 your position?
18 MR. BARON: The Government always has, absent a
19 statute, well, let me start again. The Government has the
20 ultimate burden of proof and -- but one would expect that a
21 plaintiff -- I'm sorry, that a defendant in a criminal
22 context would have to make some sort of showing that there is
23 an affirmative defense --
24 JUDGE DALZELL: Well, they'd make a showing but then
25 the burden of proof --
189
1 MR. BARON: -- going forward.
2 JUDGE DALZELL: -- would go back to you to prove?
3 MR. BARON: Yes.
4 JUDGE DALZELL: That it was not --
5 MR. BARON: Yes, unless there's unusual
6 circumstances, statutory or otherwise, that would be the
7 usual formulation.
8 I have no further questions -- or no further --
9 (Laughter.)
10 MR. BARON: -- remarks to make, subject to your
11 further questions.
12 JUDGE SLOVITER: Well, I will say, as I always do in
13 the Court of Appeals, that questions do not indicate that the
14 panel has reached any conclusion at all and the fact that we
15 have asked both you and your colleague, Mr. Coppolino,
16 pointed questions and that you have answered very well
17 doesn't mean really -- you know, we just ate lunch, we didn't
18 confer.
19 (Laughter.)
20 JUDGE SLOVITER: Thank you.
21 MR. BARON: All right, thank you.
22 MR. HANSEN: Your Honors, might I ask that we take a
23 very brief recess between at this point so that Mr. Ennis and
24 I can confer to determine whether we feel we need rebuttal
25 argument and, if so --
190
1 JUDGE SLOVITER: All right, especially if you come
2 back and you tell us you don't need rebuttal argument, five
3 minutes.
4 MR. HANSEN: Well, at least to make it more
5 efficient.
6 JUDGE SLOVITER: Okay.
7 MR. HANSEN: Thank you.
8 JUDGE SLOVITER: Is that all right? No, five,
9 let's, I mean you can do that in five minutes, can't you?
10 MR. HANSEN: Absolutely.
11 JUDGE SLOVITER: Yeah, cause we...
12 (Court in recess; 2:46 to 2:55 o'clock p.m.)