What is the Internet? Is it a completely new forum for speech or is it something familiar, like the telephone or the radio? And if it is comparable to those mediums, should existing case law apply? The following excerpt from the court's March 19 hearing on the Communications Decency Act makes clear that the justices, looking for precedents, were wrestling with the question of what analogy -- if any -- best fits the Internet.

By longstanding rule, the justices are not identified in the transcript, although it is sometimes clear from the context who is asking the question. The lawyer is Seth P. Waxman, deputy solicitor general; he is defending the new law, which places restrictions on Internet transmissions.

Court: Suppose a group of high school students decide to communicate across the Internet, and they want to tell each other about their sexual experiences, whether those are real or imagined. They're all -- every high school student who would do this is then guilty of a Federal crime, and subject to 2 years in prison?

Waxman: If high school -- I mean, when you say they want to talk about their sexual experiences --

Court: That's been known to happen in high school. (Laughter.)

Waxman: I'm shocked to learn that there is gambling in this establishment. (Laughter.) There is a big difference, Justice [Stephen] Breyer, between discussing sexual experiences and communications and speech that is patently offensive as that term has come to be understood.

Court: Well, I mean, I even imagine high school students might read from, let's say, books or magazines that have what people might think of as patently offensive ways of describing those experiences. If you get seven high school students on a telephone call, I bet that same thing happens from time to time.

Waxman: It may.

Court: And so my concern is whether, analogizing this to the telephone, it would suddenly make large numbers of high school students across the country guilty of Federal crimes as they try to communicate to each other either singly or in groups. That's one concern I have.

Waxman: If high school students, like anybody else, communicate what a jury would find and what this Court would establish, given its responsibility to create a constitutional floor, to be patently offensive within the meaning of this statute, they would violate it, because the alternative --

Court: There's no high school student exemption? (Laughter.)

Waxman: Justice [Antonin] Scalia, you may find it in the legislative history, but it is not apparent on the face of the statute. (Laughter.)

Court: I take it then that you would also defend the constitutionality of a statute which, tracking the words we have here, prohibited indecent conversations on a public street with minors present --

Waxman: I think that --

Court: -- or between minors.

Waxman: Well, I think that a municipality certainly could. I think it is a harder case, but I think a municipality could make it a crime for an -- for two adults to engage in patently offensive, sexually explicit communications in the presence of a minor child.

Court: Why is that a harder case? It seems to me easier. It's easier to verify.

Waxman: Oh, it's a harder --

Court: The presence of that minor.

Waxman: It's a harder case because a public park is a -- it's a free space. It's an area where, unlike the Internet, speech is free, which --

Court: You're asking us to say that the Internet is not a public forum.

Waxman: The Internet is -- we don't think it is, but if it is, in any event it certainly is, like other public forums, subject to reasonable time, place, and manner restrictions.

Court: A public forum is something created by the Government, isn't it?

Waxman: Right. Right. We don't think it's a public forum, whereas a park would be, but let me -- if I can just --

Court: Well, it's a pretty public place, though, because anyone with a computer can get on line --

Waxman: Right, and that is one --

Court: -- and convey information and images, so it is much like --

Waxman: It's one of the --

Court: -- a street corner or a park, in a sense.

Waxman: It's one of the wonderful things about it, and if I can just finish answering Justice [Anthony] Kennedy's question, you know, if a theater company wanted to put on a production at the Sylvan Theater on the National Mall that contained material that was patently offensive -- I don't know what a current production would be, but assume that they did. It would not be at all unreasonable or unlawful for the Park Service to say, you have got to screen for age.

Later, Waxman tried to refute the idea that communication via the Internet can be compared to speech over the telephone.

Court: Can Congress suddenly decide that all private telephone conversations will be monitored to see if there is indecent material going across the telephone that children will knowingly pick up? That was my concern.

Waxman: I think the answer is no.

Court: If the answer is no, how does this differ, because the Internet after all, is . . . very much like a telephone. . . .

Waxman: I have to disagree with your last statement. It looks a little bit -- it looks a lot different, because on the telephone you are not displaying graphic images . . . once it's placed on a computer by anybody, anywhere, [it] is available to everybody, everywhere.