Justices Weigh Issues of Internet Safeguards, Censorship
By Joan Biskupic and John Schwartz
In the Supreme Court's first venture into cyberspace, the justices seemed receptive yesterday to the idea that the government should help shield children from sexually indecent materials on the Internet. But they nonetheless were skeptical about whether a broad new federal law aimed at limiting computer pornography unfairly censors users of the network that connects millions of people worldwide.
During a vigorous 70-minute session with two premier legal advocates, the justices expressed uncertainty about how to deal with the emerging technology and concern about how much control Congress should have as it attempts to regulate a growing sphere of public conversation.
The case, one of the most closely watched disputes this term, immerses the high court in a complex and unexplored area of free speech with potential implications for lawmakers and parents, librarians and educators, and a multitude of online businesses. While a capacity crowd filled the stately courtroom yesterday, free speech activists and anti-pornography advocates gathered in the rain and snow outside.
At issue is a law passed last year that makes it illegal to transmit sexually explicit material to anyone under age 18. The law excludes from prosecution those who make a "reasonable, effective and appropriate" attempt to keep indecent material out of the hands of minors.
While some justices suggested yesterday that Congress was stifling constitutionally protected conversations between adults, it seems unlikely the high court will rule with the unanimity of the special three-judge panel that resoundingly struck down the law last summer. Although the high court could ultimately find that the Communications Decency Act violates the First Amendment, the justices yesterday seemed sharply divided in both inclination and legal approach. A decision in Reno v. American Civil Liberties Union may occur by July.
Some justices were clearly troubled by how freely minors can get access through their computers to pornography, which they cannot get in bookstores or adult theaters. But they also questioned the practicality of enforcing the law: How, for example, could someone sending sexually explicit material be expected to screen out children yet still communicate with adults?
Justice Sandra Day O'Connor described the Internet as "a public place . . . much like a street corner or a park." But reflecting some of her ambivalence as well as that of others on the bench, she later suggested that Congress may have authority to restrict a narrow category of "patently offensive" materials.
Arguing in defense of the federal law, Deputy Solicitor General Seth P. Waxman said that an unregulated Internet "threatens to give every child with access to a computer a free pass to the equivalent of every adult bookstore and theater in the country."
He also asserted that "it is technically feasible to screen for age." Although the lower court that first reviewed the law said it would be prohibitively expensive for noncommercial Internet users to verify the ages of potential recipients, Waxman insisted that young teenagers could be stopped from accessing indecent material through the use of identification numbers that would be distributed only to adults.
Justice Stephen G. Breyer questioned whether the law was so broadly written that high school students, using their home computers to communicate about their sexual exploits, would be open to prosecution and potentially imprisoned, as the law allows. Waxman conceded the students might violate the law.
Breyer also likened an Internet exchange to a telephone conversation and suggested that if Congress can monitor what goes on in cyberspace it also can monitor telephone conversations. But Waxman said the two are not the same because Internet postings are "available to everyone, everywhere," and the telephone conveys a discrete conversation.
Bruce J. Ennis, who specializes in First Amendment cases, appeared for the American Library Association, the ACLU and other free speech advocates. Ennis spoke of the "real democratizing aspects of the Internet" and how "average citizens can speak to the world for free."
He emphasized that the law censors adult speech, because most users cannot afford credit card or identification systems that would screen for age. He also said the law would ultimately prove ineffective in ridding cyberspace of sexually explicit materials because 40 percent of computer postings come from foreign countries. He said a more effective way to protect children from sexually explicit material would be for parents to monitor their children's activities and to install software that blocks out objectionable material.
While the justices' comments may not reflect where they will end up on this potentially landmark case, Justice Antonin Scalia and Chief Justice William H. Rehnquist seemed most in favor of the law. Justices O'Connor and Anthony M. Kennedy were also sympathetic, but less so, and both of these usual swing justices raised free speech concerns.
Showing the greatest support for the challengers were Breyer and Justices David H. Souter and Ruth Bader Ginsburg. Justice John Paul Stevens, who wrote a 1978 opinion allowing government to limit indecency on the radio but who has generally liberal tendencies, was hard to read. Justice Clarence Thomas did not ask any questions.
© Copyright 1997 The Washington Post Company