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CDA Trial Transcript 5/10/96 (morning)

                              - - -
   UNION, et al                  :
                     Plaintiffs  :
                v.               :  Philadelphia, Pennsylvania
                                 :  May 10, 1996
   JANET RENO, in her official   :  
   capacity as ATTORNEY GENERAL  :
   OF THE UNITED STATES,         :
                      Defendant  :
   . . . . . . . . . . . . . . . .
                         HEARING BEFORE:
                     FOR THE THIRD CIRCUIT
                              - - -
   For the Plaintiffs:  CHRISTOPHER A. HANSEN, ESQUIRE
                        MARJORIE HEINS, ESQUIRE
                        ANN BEESON, ESQUIRE
                        American Civil Liberties Union
                        132 West 43rd Street
                        New York, NY  10036
                        STEFAN PRESSER, ESQUIRE
                        American Civil Liberties Union
                        123 S. 9th Street, Suite 701
                        Philadelphia, PA  19107
   For the ALA          BRUCE J. ENNIS, JR., ESQUIRE
   Plaintiffs:          ANN M. KAPPLER, ESQUIRE
                        JOHN B. MORRIS, JR., ESQUIRE
                        Jenner and Block
                        601 13th Street, N.W.
                        Washington, DC  20005
                              - - -
   APPEARANCES:  (Continued)
   For the Defendant:   ANTHONY J. COPPOLINO, ESQUIRE
                        PATRICIA RUSSOTTO, ESQUIRE
                        JASON R. BARON, ESQUIRE
                        THEODORE C. HIRT
                        Department of Justice
                        901 E. Street, N.W.
                        Washington, DC  20530
                        MARK KMETZ, ESQUIRE
                        U.S. Attorney's Office
                        615 Chestnut Street, Suite 1250
                        Philadelphia, PA  19106
                              - - -
   Also Present:        MICHAEL KUNZ
                        Clerk of the Court for the
                        Eastern District of Pennsylvania
                              - - -
   Deputy Clerks:       Thomas Clewley
                        Matthew J. Higgins
   Audio Operator:      Andrea L. Mack
   Transcribed by:      Geraldine C. Laws
                        Grace Williams
                        Tracey Williams
                        Laws Transcription Service
   (Proceedings recorded by electronic sound recording; transcript 
   provided by computer-aided transcription service.)

   	(Whereupon the following occurred in open court at
   9:32 o'clock a.m.:)

   	CLERK OF COURT KUNZ:  Oyez, oyez, oyez, all manner
   of persons having any matter to present before the Honorable
   Delores K. Sloviter, Chief Judge of the United States Court
   of Appeals for the Third Circuit, the Honorable Ronald L.
   Buckwalter and the Honorable Stewart Dalzell, Judges in the
   United States District Court for the Eastern District of
   Pennsylvania may at present appear and they shall be heard.

   	God save the United States and this Honorable Court. 
   Court is now in session, please be seated.

   	JUDGE SLOVITER:  Good morning.

   	I think you should know the Court's view as to the
   argument today.  We deem this as for maybe I speak from the
   vantage point of an Appellate Judge, but we deem this for our
   benefit rather than for yours in that you have set forth in
   the comprehensive briefs and your proposed findings of fact
   and conclusions of law your positions.  

   	While, of course, you will proceed, we will
   interrupt you with -- I assume we will interrupt you with
   numerous questions, at least I know I have numerous questions
   after reading these.  And therefore, although we have given
   you time limits, those are your time limits, the Court has no
   time limits and therefore we, to the extent that we want
   clarification, we will go over those time limits, it doesn't
   reflect on either or any of the parties if we ask more
   questions of one party than of another or if our extensions
   come unequally for that purpose.

   	We believe that you shouldn't make plans to go by
   plane before lunch anywhere since it is possible that --
   likely that we will go beyond the lunch period, give
   everybody a break and then resume.  We tell you that at the
   outset so that you can know.

   	Anything else preliminarily?  Anything else

   	Okay, we will hear from counsel.

   	MR. HANSEN:  Good morning, your Honors.  My name is
   Christopher Hansen.  I'm one of the lawyers representing the
   ACLU plaintiffs in this case.

   	I'd like to begin by addressing two subjects that
   are not in dispute in this case that are extremely important
   to the plaintiff's analysis of this case.

   	The first is that this is a criminal statute, it's
   not a regulatory statute or an FCC regulation, it's a
   criminal statute.  It carries the penalties of fines,
   imprisonment and a criminal record.

   	Second, it is a criminal statute aimed at speech
   which all parties agree is constitutional and protected
   speech, at least for adults.

   	The rules of vagueness and overbreadth, which are
   the primary subjects I'm going to be addressing this morning
   are held to their strictest when either of these two criteria
   apply, either when they say the statute is a criminal statute
   or when it implicates First Amendment barriers, here we have

   	And thus the rules of vagueness and overbreadth in
   this context must be applied with particular strictness.

   	JUDGE SLOVITER:  On the other hand, this is a
   preliminary injunction request and the Supreme Court has made
   very clear that in preliminary injunctions the Court is not
   to reach out and decide the issues that are not absolutely
   essential at that time.  Is that not correct?

   	MR. HANSEN:  Oh, that's certainly correct. We think,
   however, it is going to be essential for you to not reach out
   but have to decide the issues of vagueness and overbreadth as
   they apply to this particular statute.

   	There are a couple of other features about the fact
   that this is a criminal statute that I would like to
   highlight, in addition to the fact that it carries the
   potential of imprisonment. 

   	The first is that it does require immediate
   compliance upon penalty of imprisonment.  Now, I cross-
   examined Mr. Olsen on my hypothetical, allow my clients to
   comply with this statute by 6:15 in the afternoon and it
   sounded extreme at the time because it is an incredibly tight
   schedule within which to comply with the statute. 

   	But the statute doesn't contain a phasing period, it
   doesn't contain a period of grace during which people can
   speak without the necessity of going to jail.  Indeed if my
   clients, if this Court were to uphold this statute at 6:00
   o'clock this afternoon, my clients would be in jeopardy for
   speech that they engaged in at 6:15, in jeopardy of

   	It  is also a very peculiar criminal statute in one
   other respect.  The statute says that the defenses change as
   technology changes.  Now, Mr. Ennis will primarily be
   addressing the offenses, but I'd like to highlight this one
   part of the defenses.

   	It is surely an odd criminal statute that behavior I
   engage in today is legal but tomorrow will be illegal because
   technology has changed between today and tomorrow.  It
   suggests that I have to keep track of all current technology,
   make sure I'm on top of the latest technology to make sure
   that I have defended myself against this statute.

   	And I think that feature highlights what is an
   important part --

   	JUDGE SLOVITER:  What provision specifically are you
   referring to in the statute when you say the statute says

   	MR. HANSEN:  Subsection E says it is a defense to
   engage in reasonable and effective and so on measures in
   order to preclude minors from having access to this, to the
   material.  It says reasonable and effective measures under
   current technology. And indeed both amici and the Government
   make much of the notion that technology is rapidly changing
   in this area and what is not possible today may become
   possible in the future.  Indeed I expect Mr. Ennis will spend
   considerable time talking about how the Government's
   essentially conceding that the defenses are not really much
   available today, instead the Government is relying on its
   hope the defenses will be available in the future.

   	But what this highlights, to me anyway, is the
   nature of the medium that we're talking about because even if
   we were talking about a criminal statute applicable to
   constitutionally protected speech in the context of broadcast
   or in other contexts, if we're -- if we're worrying about CBS
   having to face those kinds of problems, CBS is -- and NBC,
   there are a limited number of speakers in the context of
   television and they have batteries of lawyers and they have
   batteries of people who review programs before they go on the

   	In this case we're talking about the most democratic
   means of speech yet devised.  It is an area of a medium where
   all of us can be both speakers and listeners, where entry
   into the marketplace of ideas is simple, is relatively
   inexpensive and it makes all of us as powerful as CBS news.

   	My Webpage can be seen by just as many people as CBS
   News' Webpage.  In that context it is difficult -- we have to
   remember we are then calling upon every single American to be
   able to define the exact parameters of vague--of the statute
   here, the exact parameters of indecency, the exact parameters
   of patent defensiveness.

   	Every single American may, as Mr. Olsen suggested,
   have to hire their own lawyer to determine what the precise
   contours of those phrases are.

   	It is because of the evolving and democratic nature
   of this medium that the use of the criminal statute in this
   context is a particularly onerous method of dealing with the
   problem here.

   	JUDGE SLOVITER:  What is the problem?

   	MR. HANSEN:  Well, Congress perceives the problem to
   be that minors are obtaining access to material that are
   inappropriate for minors to be obtaining access to.  In our
   view, Congress has not made out evidence that that problem
   does exist.  In the examples, for example, and Mr. Schmidt
   provided us with a lot of examples of the kind of speech that
   the Government asserts is at issue here.  Much of that
   speech, in our view, would be encompassed within already
   existing criminal prohibitions of either obscenity or child
   pornography.  Indeed --

   	JUDGE DALZELL:  Which I take it everybody agrees is
   entitled to absolutely no protection, obscenity and child
   pornography, that's established, correct? 

   	MR. HANSEN:  I think the Supreme Court has been
   crystal clear that that is established,  that's correct.


   	MR. HANSEN:  And indeed Senator Exon, the sponsor of
   this statute, waved around, and indeed I think successfully
   waved around on the floor of the Senate what he called the
   Blue Book.  And the Blue Book consisted of pictures even more
   extreme than those you saw in the Coppolino book during the
   testimony stage, pictures that under any -- I think under
   most people's definition would be considered obscene.

   	But we're not talking about obscene speech here. 
   None of the plaintiffs is challenging prohibitions against
   obscene speech or against child pornography, we're talking
   about something that is outside the definition of what
   obscene speech is.

   	And the -- the issue of whether the two phrases,
   indecency and patent offensiveness, are either vague or
   overbroad.  It turns out after a careful reading of the
   Government's brief and the amici in support of the Government
   to be a fascinating case.

   	JUDGE SLOVITER:  Do you understand the two phrases
   to be different or the same?

   	MR. HANSEN:  I understand the Government to be
   arguing that the two phrases are the same.  I don't think
   that argument necessarily makes sense.  I mean we -- the
   normal rule of statutory construction is that when  the
   Congress uses two different clauses or words, it means to
   convey two different concepts.

   	JUDGE DALZELL:   Yeah, but when the conference
   report specifically references Pacifica and Sable as the
   source of meaning for those, doesn't the Government have the
   better of the argument?  Well, I'm not deciding the
   consequences of this but as a matter of statutory
   construction that the terms "indecent" and "patently
   offensive" are interchangeable?

   	MR. HANSEN:  Well, there's no question that the FCC
   has defined -- has defined indecency using some of the patent
   offensiveness clause that is contained in the Communications
   Decency Act.

   	There are slightly different wrinkles.

   	JUDGE DALZELL:  Right, and your point is that if
   they'd had the better of the argument if that case was
   applicable to this situation, I suppose.

   	MR. HANSEN:  Well, that's -- that's absolutely true.
   And they'd have the better of the argument if this medium
   were identical to the broadcast medium.  The Government also
   says that indecency and patent offensiveness mean different
   things in different media.  And so I'm not sure we can easily
   borrow from the other media.

   	JUDGE DALZELL:  But don't we run into trouble since
   the patently offensive locution comes verbatim out of Supreme
   Court cases, wouldn't it be a bit of a leap for the three of
   us who at last report are not on the Supreme Court to say oh,
   that's unconstitutionally vague?

   	MR. HANSEN:  No, I don't think it would be a leap at
   all.  I don't think the Supreme Court has ever found that
   that phrase -- either of the two phrases at issue in this
   case are not vague.  The closest the Supreme Court has come
   to commenting, if you will, on the vagueness of the patent
   offensiveness phrases is Pacifica, the seven dirty words
   George Carlin monologue case.

   	The Court in that case specifically does not reach
   the vagueness question, instead all they say is that in the
   context of this monologue, this monologue is punishable.  We
   agree that it is legitimate for the FCC to regulate this
   monologue, to make it go at three in the morning instead of
   three in the afternoon.  They don't reach the question of
   whether the FCC's definition of either indecency or patent
   offensiveness was unconstitutionally vague.

   	In addition to that, as I was suggesting a minute
   ago, we have some evidence from the Government in this case
   that the definition of indecency and patent offensiveness in
   the medium of cyberspace is different than its meaning in
   broadcasting.  I don't -- I'm not sure I can understand --

   	JUDGE DALZELL:  But that's not the Government.  What
   we have to look at, I mean how Mr. Coppolino and his
   colleagues interpret it is one thing, what we have to
   interpret as a law that Congress adopted and with all
   deference to Justice Scalia's views of statutory
   construction, you know, if we look at the conference report,
   et cetera, that's what we look at to find a meaning, not the
   Government's brief, isn't it?

   	MR. HANSEN:  Oh, I think that's -- I think that's
   exact.  I think first, with deference to Justice Scalia, I
   think you first look at the language of the statute, but I
   think the conference report -- I agree with your Honor, the
   conference report provides useful information in helping to
   interpret the language of the statute.

   	But I think there's one other thing that can be said
   about the depth -- the vagueness or lack of vagueness of the
   definition of indecency or patent offensiveness, either one,
   and that is I think we've come a long way since the Pacifica
   decision in terms of finding out whether we can accurately
   define what indecency means.

   	And this case, and the repeated citation to the FCC
   definitions of indecency I think is the most vivid example
   that whatever we were predicting in Pacifica we were going to
   be able to do, that is narrowly and tightly or precisely
   define vagueness, we've now learned we can't do it.  And this
   case provides any number of examples of why that's the case.

   	For example, the -- as the Court is aware, the
   obscenity test, the Miller test, includes patent
   offensiveness as well, but it also includes the element that
   the speech be prurient and it also includes the element that
   the speech have no serious value.

   	Well, in this case the Government hints at the
   notion that those concepts are somehow embedded in our
   definition of either indecency or patent offensiveness.  They
   don't ever explicitly say that and in fact at some points
   they seem to back away from it, but they certainly hint at

   	The FCC has found that prurience is not a necessary
   part of either indecency or patent offensiveness.  Indeed the
   George Carlin monologue itself, it's hard to see how anyone
   could find it prurient.  You might find it humorous or you
   might find it unhumorous, there are a lot of things you might
   say about it, but it's hard to see how anyone would be turned
   on by the George Carlin monologue.

   	So if we're in fact looking to the FCC or looking to
   prior cases as to what indecency  means, I think we have to
   reject the Government's notion to suggest that somehow this
   case is about prurience.  What --

   	JUDGE DALZELL:  But both sides have cited a lot of
   FCC decisions, very helpfully.  One that I thought was rather
   interesting that I take it neither your organization nor the
   party involved thought to take to the Supreme Court was this
   very interesting case, Merrill Hansen, spelled the same way
   as your surname.  I don't know, any relation?

   	MR. HANSEN:  No relation, no relation, your Honor.

   	JUDGE DALZELL:  Okay.  Where the two -- where the
   two disc-jockeys were talking about the Playboy article
   involving the alleged rape by Jim Baker of Jessica Hahn and
   even though the Commission agreed that it was newsworthy and
   I must say, reading the transcript myself, it seemed to me
   that the disc-jockeys who may have started out thinking they
   were going to make a joke of it, and when they found out at
   least in their view that Ms. Hahn really was raped.  And they
   said hey, this is really serious, this is bad stuff.  Okay?

   	Sounds to me like pretty constitutionally protected
   discussion of a public figure and the Commission says,
   acknowledging that it was newsworthy at the time, that the
   merit of the work is simply one of many variables and held
   that it was appropriate to fine them a forfeiture of $2,000
   for that.

   	Now, nobody said, nobody said a  constitutional boo
   to that decision, did they?

   	MR. HANSEN:  Well, somebody should have.  But as far
   as I know, no one did.

   	JUDGE DALZELL:  But after Pacifica, could you say

   	MR. HANSEN:  Oh, I think absolutely could.  I think
   that is the -- that case is one of the most perfect examples
   of how we have now learned that the effort we started, the
   road we started down in Pacifica to define indecency isn't
   working.  I mean, the Government in this case suggests that
   there's some sort of serious value component to patent
   offensiveness and indecency.  But then, as your Honor quite
   properly suggests, the FCC rejects the notion that there's a
   serious value component.

   	And if we put back into indecency or patent
   offensiveness prurience and serious value, we've recreated
   the definition of obscenity.  We then no longer need the
   concept of indecency.

   	JUDGE DALZELL:  But if you're right, wouldn't we
   have heard some echo in Sable, for example, some quibbling in
   Sable?  I mean I agree with you that Pacifica has been
   narrowed over time, but notably it hasn't been narrowed on
   the indecency point.  Wouldn't you agree with that?

   	MR. HANSEN:  No, I'm not sure I would agree.  I
   think there has continued to be ferment in the --
   particularly in the lower courts at least about the question
   of whether these, these clauses can be properly defined and
   whether they are vague or overbroad.

   	For example, in Alliance, which was argued recently,
   one of the issues lurking in Alliance -- it may not be
   reached by the Supreme Court because the Supreme Court's
   dealing with --

   	JUDGE DALZELL:  I know, we talked about that though
   and I think we've all reviewed the transcript and the word
   indecency didn't even come up.  

   	MR. HANSEN:  No, but --

   	JUDGE DALZELL:  So we shouldn't hold our breath for
   that decision, should we?

   	MR. HANSEN:  No, and I don't think the Supreme
   Court, I suspect the Supreme Court won't give us guidance on
   that in that case, but my point is that the issue of whether
   the concept of indecency or patent offensiveness is
   unconstitutionally vague remains in ferment.  We in fact cite
   some lower court cases that in some context have found that
   those kinds of clauses are in fact unconstitutionally vague.

   	It is fair to say that some, there are courts that
   have said that given Pacifica we are going to say that that
   issue is foreclosed, but we think it's by no means.

   	JUDGE SLOVITER:  In a criminal context?

   	MR. HANSEN:  No, and indeed --

   	JUDGE SLOVITER:  Has there been any criminal case
   that has sustained, that you know of, let's say any Federal
   criminal case that has sustained the use of indecency?

   	MR. HANSEN:  No.  We looked very hard for it.  As
   far as I can determine there is only one other place where
   indecency or patent offensiveness, there are two, where
   they're a crime as opposed to some sort of regulation,
   broadcast and the Dial-A-Porn context, we looked very hard to
   see if any in the last 20 or 50 years anyone had ever been
   either charged or convicted of indecency in any of those
   contexts.  We were unable to find a single example.

   	We found a couple of cases in which people have been
   prosecuted for a statute that said you may not engage in
   obscene or indecent speech, the case seemed to go -- the case
   explicitly went off purely on the obscenity issue, but we
   found no example of a crime.

   	And indeed in Pacifica the Court suggested that the
   reason they were able to reach out and find the Carlin
   monologue on acceptably -- acceptable to channel it to some
   other part of the day, one of the reasons they were able to
   do that was because it was a regulatory context and not a
   criminal context.  They explicitly suggested that they might
   have reached a different result.

   	JUDGE SLOVITER:  Now, this is your vagueness
   argument --

   	MR. HANSEN:  Correct.

   	JUDGE SLOVITER:  -- that you're in.  Okay.  You're
   going to get to your First Amendment -- I mean to your over-
   breadth argument?

   	MR. HANSEN:  Absolutely, although I think they --
   yes, absolutely.  Although I think they are -- it's difficult
   to pull them apart.  It's certainly analytically possible to
   pull them apart.

   	JUDGE DALZELL:  It's easy to do that, isn't it?

   	MR. HANSEN:  Well, but --

   	JUDGE SLOVITER:  You have different constitutional


   	MR. HANSEN:  But the facts that are sort of relevant
   to them are identical.  For example, if you assume that
   prurience is no longer part of the definitions here or -- and
   if you assume that this act, these two phrases do include
   material of serious value, then I think it presents you
   right, flat out the issue of whether we now have an over-
   breadth problem, that is whether we are now reaching speech
   that is constitutionally protected for adults that has
   serious value, that although it is about sex is not about

   	I think that -- I think we're flatly presented with
   the question of whether the Congress can criminalize such

   	JUDGE DALZELL:  See, you may be right on the -- as
   an abstract question, if you were righting a law review
   article about what the vagueness rule should be here, but my
   two colleagues and I, because we're not the Supreme Court,
   have got to, as best we can, limit existing Supreme Court
   precedent and apply it here. 

   	And I have to tell you, Mr. Hansen, that I haven't
   found a hint in the Supreme Court's jurisprudence.  You may
   well be right that they will say criminal is different, but I
   haven't seen it yet.  This may be the case where they do it,
   but our problem is we have to apply the Supreme Court's
   jurisprudence as it exists today on May 10th, 1996, not as it
   may apply because of your successful advocacy in the Supreme
   Court, wouldn't you agree?

   	MR. HANSEN:  Oh, I certainly agree with that.  But I
   think that in forming your decision you can say to the
   Supreme Court, you can establish the factual record with the
   Supreme Court that we've looked at this particular statute
   and these particular phrases and what we have found is that
   the people involved in trying to help us define what they
   mean have not been able to define them for us.

   	I mean let's talk about some of the testimony that's
   come out.  The -- Mr. Schmidt who says that it would be
   indecent or patently offensive, the Vanity Fair cover would
   be indecent or patently offensive, Mr. Olsen who says that
   Playboy is indecent or patently offensive and that all the
   dirty words are indecent or patently offensive, the FCC which
   says the crude jokes are patently offensive.

   	On the other hand, and morality in media, one of the
   amici in this case which says that the discussion of gay
   rights in some parts of cyberspace is patently offensive or

   	On the other hand we have the Government suggesting
   that discussion of gay rights is not patently offensive, but
   the facts in this case suggest --

   	JUDGE DALZELL:  But doesn't that --

   	MR. HANSEN:  -- we don't know how to define these

   	JUDGE DALZELL:  But the problem with that is doesn't
   your argument ultimately prove too much because the indecency
   in patently offensive locutions, some of the patently
   offensive locution comes right out of the Miller

   	And, for example, you've spent a good deal of time
   arguing with a good deal of force, I think, about the
   different community problems because it's one thing to
   broadcast in a local area, but cyberspace, once something is
   on it, it's there world wide.  But if we take that argument
   to its logical conclusion, we're going to read out the
   obscenity definition of Miller, aren't we?

   	MR. HANSEN:  No, I think because I think obscenity
   in Miller benefits from the interplay of all three factors. 
   I think if obscenity in Miller were just patent offensiveness
   I think we would be having trouble.

   	JUDGE DALZELL:  No, the community issue because--

   	MR. HANSEN:  Oh.

   	JUDGE DALZELL:  -- because the patent offensiveness
   also has the limiting phrase by contemporary community
   standards and that of course also comes from Miller.

   	MR. HANSEN:  Well, that's one of the ways in which I
   think the application of this -- that particular phrase to
   this statute presents us with particular problems.  I mean in
   Miller we know pretty much now that the community standards
   applies to local community standards.  In this case we've got
   a whole series of proposals about what community standards
   means.  We don't know for sure whether it's national
   community standards or local community standards.  The
   Government's witness suggested it was local community
   standards, the conference report suggests it's national
   community standards.

   	JUDGE SLOVITER:  Can we decide this case on the
   preliminary injunction phase of it without reaching the
   vagueness issue?

   	MR. HANSEN:  Sure, yes, absolutely you can.

   	JUDGE SLOVITER:  Because you haven't told us how

   	MR. HANSEN:  Well, I think there are two ways that
   you can.  I think one is -- and one is the over-breadth which
   you've now pushed me to a second time and I'll now go to --


   	JUDGE SLOVITER:  I don't even see a timer here.  Do
   you have a timer?

   	JUDGE DALZELL:  We have  the clock, Judge Sloviter. 

   	JUDGE SLOVITER:  Oh, well, I don't follow that.

   	JUDGE DALZELL:  I've been watching it.

   	JUDGE SLOVITER:  Yes, I'm used to yellow lights and
   green lights.

   	MR. HANSEN:  I may not have got it the first time,
   your Honor, but I got it the second time.


   	MR. HANSEN:  And the other way I think you can,
   before I go on to over-breadth, the other way I think you 
   can -- 


   	MR. HANSEN:  -- is what Mr. Ennis is going to talk
   about and that is the whether it's technologically or
   economically feasible to comply with the statute.

   	If the statute is read to include material that is
   valuable both for adults and for minors --

   	JUDGE SLOVITER:  We have to read the -- we have to
   read the statute the way it's written, don't we?  We'll talk
   to the Government about its effort to change the statutory
   language but our problem right now is not what the Supreme
   Court is going to do because the Supreme Court may surprise
   us all and not take this case.  We have an obligation to
   decide the case in front of us.

   	Now, on what is the narrowest ground on which we can
   decide this preliminary injunction issue?

   	MR. HANSEN:  Well, I'm not sure I know what the
   narrowest way is.

   	JUDGE SLOVITER:  All right.

   	MR. HANSEN:  But I think you can say that the act,
   as written, reaches speech that is constitutionally protected
   both for minors and for adults.  I think the first question
   is whether it reaches speech that is constitutionally
   protected for adults, I don't think there's really any
   serious dispute about that.  I also don't think, as for the
   reasons Mr. Ennis will be discussing, I don't think there's
   that much serious dispute that an awful lot of adults are
   going to be precluded from obtaining access to this kind of
   speech as a result of this act.

   	I mean just to take the most simple example, if we
   accept the credit card screening mechanism that the
   Government suggests, there are an awful lot of adults that
   don't have credit cards and that won't be able to obtain
   access to speech that is constitution-- they're
   constitutionally entitled to get simply because they don't
   have a credit card.

   	I mean it reminds me of one of the exhibits the
   Government suggested in which they said that every 15 year
   old in America is computer literate.  Well, there are 15 year
   olds in America that aren't literate, much less computer
   literate.  Similarly, there are adults that don't have credit
   cards and under this scheme won't be able to obtain access to
   this information.

   	So the first issue and the issue where you can stop
   if you reach this issue is whether this will prevent adults
   from having access to information that they are
   constitutionally entitled to.  It's the Butler argument, it's
   the Sable argument.  That is that what we have done in this
   context is we have, in the guise of protecting children,
   we've prevented adult, we've required that all speech be
   brought down to the level acceptable to the most vulnerable

   	But if that, if you are unpersuaded by that part of
   the argument, then I think you also have to go ahead and
   reach the question of whether the speech in this case is
   protected from minors as well as for adults.  It is clear
   that minors do have rights to speech, it's clear that minors
   do have rights to obtain access to speech.

   	In this instance what we have is a huge volume of
   speech that the undisputed testimony shows is valuable for
   minors.  And let me take a couple of the most obvious

   	The safer sex information is probably the most
   obvious example.  The exhibits in the record and the
   testimony from the witnesses indicate that a great many
   minors, particularly older minors, are in fact sexually
   active.  Whether we like that or not is irrelevant, the fact
   is that they are sexually active.  And in order to protect
   themselves from diseases including the fatal disease of AIDS,
   in order to protect themselves from pregnancy which is of
   course a constitutional right for minors as well as for
   adults, it is important, it's not merely -- it's vital that
   they obtain access to the kinds of speech that my clients
   engage in.

   	JUDGE SLOVITER:  How do you answer the Government's
   argument that the act couldn't possibly be read to apply to
   information of that sort?

   	MR. HANSEN:  Well, I think there are -- I think the
   answer to it is embedded in the colloquy Judge Dalzell and I
   were having, that is this act prohibits speech that has
   serious value.  The Government's suggesting really that this
   case is really just about pornography, it's just about
   really, really sexually explicit stuff.  Well, it's not about
   obscenity, it's not about that level pornography, it's not
   about prurience because prurience is not an element of this,
   not a necessary element about this and it's not about serious
   value because speech that has serious value is punishable
   under this statute.

   	Well, if that's the case, it seems to me safer sex
   information is most certainly at jeopardy under this statute.

   	JUDGE SLOVITER:  The Government suggests that we
   read this in the context of a conference report, is that

   	MR. HANSEN:  Correct, yes.

   	JUDGE SLOVITER:  But didn't the conference report
   specifically exclude a deletion of serious value?

   	MR. HANSEN:  No, it's the other way around.  The--
   one of the --

   	JUDGE SLOVITER:  It excluded, didn't it exclude,
   wasn't there an effort to put in an exclusion from the
   statute for --

   	MR. HANSEN:  Oh, yes.

   	JUDGE SLOVITER:  -- I used my words -- I thought I
   used my words carefully.

   	MR. HANSEN:  Yes, I'm sorry.  The --

   	JUDGE SLOVITER:  There was an effort to exclude from
   the scope of the statute --

   	MR. HANSEN:  Matters of serious value.  That is
   there was an effort to make --

   	JUDGE SLOVITER:  If you haven't, I mean, isn't --

   	MR. HANSEN:  Yes, your Honor.

   	JUDGE SLOVITER:  -- that important?  And why don't
   you stress that in the argument.

   	MR. HANSEN:  Okay.


   	MR. HANSEN:  Yes, the one -- one member of Congress
   proposed that the statute substitute, harmful minor statute
   be substituted for the indecency and patent offensiveness.

   	JUDGE SLOVITER:  That's a separate issue.  

   	MR. HANSEN:  Well, harmful to minors includes
   prurience and includes value.  Congress explicitly rejected
   that alternative and both for the reasons you suggested and
   for the reason I'm now suggesting, Congress made, I think,
   crystal clear that value is part of this statute.  And if you
   engage in speech that is about sex, even if it has value, you
   risk going to jail under this statute.

   	JUDGE DALZELL:  I would like to know because --
   well, you've got about ten minutes left on this.  Let's
   assume we and/or the Supreme Court agree with you and the CDA
   is held unconstitutional.  So Senator Coates and Senator Exon
   come to you and say Mr. Hansen, you are obviously the right
   person with Mr. Ennis to talk to, here's the pen, write me a
   CDA.  Could you write a --

   	MR. HANSEN:  Somehow I don't think that will happen.

   	JUDGE DALZELL:  Could you write a child a CDA that
   passes constitutional muster?

   	MR. HANSEN:  I'm not sure you could.  I mean
   Ginsburg suggests that a harmful to minors statute might well
   be constitutional.  The question then would be whether you
   could apply that standard in the context of cyberspace and I
   think the answer to that would, at least in large measure,
   depend upon the ability to comply with the statute which is--
   which is largely sort of the defenses issues that Mr. Ennis
   is going to be addressing.  My view is no, you could not.

   	JUDGE DALZELL:  So therefore the issue really is
   medium specific is what your argument is?

   	MR. HANSEN:  Oh, there's no question that the issue
   is medium specific.  All the case law and the defendants
   admit that whether -- that the rules are different from
   medium to medium and that what may be, for example, indecent
   in TV is not indecent here.  What may be an accept --
   constitutionally acceptable rule in the area of broadcast is
   not -- may not be a constitutionally acceptable rule here.

   	JUDGE DALZELL:  So your position is then that you
   would give the pen back to Senator Exon and Senator Coates
   and just say I'm terribly sorry but for this medium we can't
   do it?  Is that -- is that your position?

   	MR. HANSEN:  Well, yes, I would say that and then I
   would also say to Senators Exon and Coates: but I have a
   better solution for you to the problem that you're troubled
   about and that solution is the whole constellation of PICs
   and Surfwatch and the other mechanisms that empower parents
   to be able to prevent their children from having access to
   indecent material and yet don't infringe on constitutionally
   protected rights, either for children or for adults.

   	JUDGE DALZELL:  And they say to you that's okay,
   that's great, how do we make sure this happens, they say, we
   want to give you a law to make sure this happens.

   	MR. HANSEN:  I think my first answer would be relax
   for a second, it's happening.  I mean, you know, all of the--
   we have considerable evidence that PICs is coming along, it's
   going to be up very soon.  We have considerable evidence that
   AOL is work-- and the other on-line services are working
   rapidly to improve and tighten and strengthen their parental
   control mechanisms.  

   	The attention that this act has gotten and that this
   case has gotten has been enormous impetus toward people
   finding those kinds of parental --

   	JUDGE SLOVITER:  What level of scrutiny do we apply
   to this statute?

   	MR. HANSEN:  I don't think there's any question.  I
   think the Government concedes that this is -- that you have
   to find -- in order to uphold this statute you have to find,
   you have to apply strict scrutiny and you have to find that
   there is no -- that it is narrowly tailored.  Both
   requirements have to be found here before this statute can be

   	JUDGE SLOVITER:  Have you commented on the narrow

   	MR. HANSEN:  No, the narrow tailoring largely goes,
   I think, to the defenses which I think Mr. Ennis is going to
   address although there isn't --

   	JUDGE SLOVITER:  What do you mean the narrow
   tailoring goes to the defenses?  Can't you have a free speech
   case in which the statute doesn't have any written-in

   	MR. HANSEN:  Yes.

   	JUDGE SLOVITER:  Isn't that part of the basic
   concept of what we're supposed to do when we look at whether
   something's protected under the first amendment?

   	MR. HANSEN:  Yes, I think that -- I think that part
   of the question is, is the definition of speech here
   sufficiently narrowly tailored that it gets at the problem
   that Congress was trying to get at and doesn't reach out and
   get a -- and create other problems.  And I think for the
   reasons, all the reasons we've been talking about this
   morning, I think this speech clearly does reach out to speech
   well beyond that which the Government's professed interest

   	JUDGE BUCKWALTER:  Mr. Hansen, I've been concerned
   throughout this, my involvement in this, about the question
   of this being media specific.  And if it is media specific,
   what is your position is the media it's most analogous to and
   what is the Government's position.

   	But I don't want you to speak for the Government.


   	MR. HANSEN:  Our position certainly is that if we
   are to draw an analogy, print would be the appropriate
   analogy because in this -- but I think we would suggest to
   you that this is a medium different than all other media in
   the sense of its democratizing and many to many qualities. 

   	That is almost all the other media, with the
   possible exception of telephone, is a relatively limited
   number of speakers giving out information to a large number
   of listeners.  One of the real marvels of this medium is it's
   making us all speakers and listeners and thus we think it's
   entitled the highest protection because it enable-- it
   empowers the most number of speakers.

   	JUDGE BUCKWALTER:  Thank you.

   	JUDGE DALZELL:  I want to get back for a second
   because it goes, I think, to your over-breadth argument here
   where you argue about that some minors, older minors should
   be entitled -- for example, sexually active minors.  But
   doesn't that undermine -- you would agree that Congress
   surely has the power to define who a minor is.

   	MR. HANSEN:  Yes.

   	JUDGE DALZELL:  And any definition it comes up with
   is by definition one size fits all because if you get back
   from that don't you drive the courts to determine, for
   example, is this -- is 12 mature or is this child
   sufficiently mature, this one's sexually active, this one's

   	And so to avoid that kind of unedifying wildly
   inefficient system, Congress as every legislature has the
   inherent power to say who is a minor and who isn't.  Isn't
   that right?

   	MR. HANSEN:  Oh, I think that's right, but I think
   their definition of the minor in the context of this statute
   has to bear some relationship to a valid governmental
   purpose.  That is, if they decided that a minor was 30, I
   think we would all have little difficulty throwing that out
   because we believe that there are 25 year olds who have, you
   know, the sufficient maturity and sufficient need for the
   kinds of speech we're talking about here that they ought to
   be able to have access to it.

   	Similarly, I think, we can say given the nature of
   the speech involved here and given the realities of the world
   that drawing the line at 18 in this context approaches the
   same level of irrationality in the sense that there are
   certainly 17 year olds who have sufficient maturity and
   sufficient --

   	JUDGE DALZELL:  But isn't that an argument that you
   should make to Congress and not to us?

   	MR. HANSEN:  Well, I think it's --

   	JUDGE DALZELL:  I mean could we say as a matter of
   constitutional law that the -- that the drawing the line at
   18 was so irrational as to violate, I assume, due process?

   	MR. HANSEN:  Oh, I think you can.  I think you can--

   	JUDGE SLOVITER:  You want us to say the statute
   would be constitutional if it was to 14?

   	MR. HANSEN:  No, I don't want you to say that, but I
   do -- but I do think --

   	JUDGE SLOVITER:  Well, then I don't understand what
   this argument goes to.

   	MR. HANSEN:  The question is whether this statute is
   reaching out to a great deal of information that basically
   everyone concedes is valuable, at least for a large number of
   minors.  And if it is in fact speech that is valuable for a
   large number of minors, not only not harmful but valuable,
   then the statute is over-broad even as it applies to minors
   and not just as it applies to adults.  And I think that's how
   I would use the question.

   	And I think -- 

   	JUDGE SLOVITER:  Go ahead.

   	MR. HANSEN:  I think there is some notion to the
   fact that the Government, the Congress can draw some lines in
   this area but where the line sweeps in large numbers of
   minors who are appropriately, who ought to be appropriately
   able to see this kind of information --

   	JUDGE DALZELL:  Based on your reading of the
   jurisprudence, how substantial does the over-breadth have to
   be for it to cross the line of impermissibility?

   	MR. HANSEN:  I think if it -- if more than a small
   number of applications are involved then I think you have
   substantial over-breadth.  That is I think the over-breadth--

   	JUDGE DALZELL:  What's your citation for that

   	MR. HANSEN:  I don't have one off the top of my head
   but I'll have one by the time of rebuttal, if you'd like.


   	JUDGE DALZELL:  Fair enough.

   	MR. HANSEN:  I think the case -- the non substantial
   over-breadth cases, the cases that say we -- there's
   substantial over-breadth here --

   	JUDGE SLOVITER:  It was in your brief and in the
   ALA's brief.

   	MR. HANSEN:  They're in both briefs and they talked
   about the question -- it is possible to hypothesize a small
   number of applications that might be constitutionally
   protected and that's not what we're talking about in over-
   breadth.  And that's the line of cases I am drawing on for
   the answer.

   	In our view the -- one of the crucial parts of this
   case is that which we've just been discussing and that is the
   nature of this medium here.  We have what is a new medium, is
   an enormously exciting medium, it is a democratizing medium
   and it is an enormously evolving medium.

   	The testimony was undisputed that this medium is
   changing on a daily basis and changing rapidly.  This statute
   not only infringes constitutional rights in the ways we've
   talked about this morning but it also has the potential for
   stifling this new and exciting and dramatic medium and in our
   view this Court should find the statute unconstitutional.

   	JUDGE DALZELL:  Thank you.   

   	Shall we call Mr. Ennis?


   	JUDGE DALZELL:  Mr. Ennis?

   	MR. ENNIS:  Good morning, your Honors.

   	JUDGE DALZELL:  Good morning, Mr. Ennis.

   	MR. ENNIS:  Bruce Ennis representing the ALA

   	I'm going to speak primarily about the Subsection E
   safe harbor defenses to Subsection D's criminal prohibition. 
   To put it in context, I think that it's fair to say that
   unless speakers can use the safe harbor defenses authorized
   by Subsection E, then Subsection D standing alone would
   constitute a flat ban on speech that is constitutionally
   protected for adults.

   	JUDGE SLOVITER:  Let me ask you a general
   proposition, do you know of any criminal law that might have
   been unconstitutional but for defenses that were put in?  I
   mean this, the whole proposition that you can
   constitutionalize a possible over-broad or vague criminal law
   by defenses is a new one to me but there may be examples out
   there.  Can you think of any?

   	MR. ENNIS:  Well, Judge Sloviter, I think that's a
   key question in our case.  I'm not aware of any.  There --

   	JUDGE SLOVITER:  I guess it's a question for the
   Government then, giving them advance notice.

   	MR. ENNIS:   The closest I can think of that, your
   Honor, are examples from broadcast and Dial-A-Porn but
   they're not like this law.

   	JUDGE SLOVITER:  But they're not criminal statutes,
   are they?

   	MR. ENNIS:  Well, both -- yes, they are both
   criminal statutes.


   	MR. ENNIS:  Though the FCC has never sought or
   obtained criminal sanctions in the broadcast area against
   indecent speech.  And --

   	JUDGE DALZELL:  Well, although Pacific and Southern
   Company, Incorporated, licensee of radio station KSD-FM, when
   it got fined -- they called it a forfeiture of $2,000, smells
   like a fine to me.

   	MR. ENNIS:  Well, it certainly is and it's an
   administrative fine, your Honor.  All I'm pointing out is
   that the Supreme Court stressed in its Pacifica decision that
   it was not dealing with a criminal sanction.

   	JUDGE DALZELL:  Quite right, you're quite right.

   	MR. ENNIS:  But let me return to your question
   because it is an important question.  In every other medium
   where Government attempts to regulate or criminalize
   indecency, in every other medium speakers have a sure and
   safe way of complying with the act, all speakers.

   	For example, in broadcast, speakers know that if
   they broadcast the indecent material only in the evening
   hours that are specified by FCC as okay for indecent
   material, they are at no risk whatsoever of any governmental

   	In the dial-a-porn context which only regulates
   commercial dial-a-porn, all commercial providers of dial-a-
   porn can use a credit card which is a complete defense, all
   speakers in the commercial dial-a-porn context have a sure
   and safe and completely effective safe harbor.  That is
   emphatically not the case with respect to this act.

   	So it does raise the question you've asked, is there
   ever an example in which you can ban speech and then put the
   affirmative burden on the speaker to show with evidence and
   an affirmative defense to a prosecution that their speech
   somehow comes within a safe harbor and the answer is no.

   	JUDGE SLOVITER:  Okay.  And then in -- and of course
   if the Government disagrees though we expect it will tell us,
   but to whom is the safe harbor provision, the defense
   provision available?  Is it available for all of the persons
   who might, individuals who might be held liable under A and D
   or only some of them?

   	MR. ENNIS:  Your Honor, the defense on its face is
   available and in fact must be raised as an affirmative
   defense by all of the millions of speakers who use the

   	In reality, as I hope to show this morning, the
   defense is not available to any speakers who use the Internet
   except for commercial speakers who charge for access to their
   speech.  With that sole exception, not one of the so-called
   safe harbor defenses can with any reasonable --

   	JUDGE DALZELL:  Well, apparently those defenses are
   merely evidence, as I understand Mr. Keeney's letter to our
   colleagues in New York, right?

   	MR. ENNIS:  That's at most what they are.

   	JUDGE DALZELL:  At most evidence.

   	MR. ENNIS:  Well, that's right, the Keeney letter--

   	JUDGE DALZELL:  But it's still going to be up to a
   jury to determine whether that carries today, right?

   	MR. ENNIS:  That's correct, Judge Dalzell.  The
   Keeney letter says that at most, if a defendant takes the
   steps the Government suggests, a speaker takes the steps the
   Government suggests, at most that would be, quote,
   "substantial evidence" which that defendant in a criminal
   prosecution could then argue to a jury would qualify for the
   safe harbor defense.

   	But it would be up to disparate juries throughout
   the country.

   	JUDGE BUCKWALTER:  But in a criminal setting the
   burden would always be on the Government to prove that it was
   not a good faith defense, it would never be upon the --

   	MR. ENNIS:  You would think so, Judge Buckwalter,

   	JUDGE BUCKWALTER:  Or even in insanity.

   	MR. ENNIS:  But that is not the way this statute is
   set up, which was Judge Sloviter's question.  This statute,
   Subsection -- let me try and break it out.

   	JUDGE SLOVITER:  Go ahead.

   	MR. ENNIS:  If you start with Subsection D,
   Subsection D flatly prohibits the display of patently
   offensive speech in a manner that would be, quote, "available
   to minors."

   	JUDGE DALZELL:  Right.

   	MR. ENNIS:  As we've shown in our proposed findings
   of fact 855, we've collected all the evidence, there's no
   dispute on it, you cannot display speech on the Internet in a
   way that's broadly available to adults without that speech
   necessarily also being broadly available to minors.

   	So what that means is if you just look at Subsection
   D by itself, Subsection D criminalizes the display of speech
   on the Internet that would be broadly available to adults
   because it necessarily would be broadly available to minors
   as well.

   	Thus unless the Subsection E safe harbor defenses
   narrow the sweep of Subsection D, Subsection D would quite
   clearly be unconstitutional under Bolger, under Sable and
   under Butler, all of which unanimously hold that Government 
   cannot constitutionally ban speech to adults even for the
   purpose of protecting minors.

   	JUDGE DALZELL:  Sure.  And what did the trick in
   Sable was the defense.

   	MR. ENNIS:  It was the defense.

   	JUDGE DALZELL:  And that's what Congress did, at
   least what Congress thought they were doing.  Isn't it fair
   to say what Congress thought they were doing in this statute
   was they reached into Pacifica and they reached into Sable
   and they threw it in to the CDA and they said it's got to be
   constitutional because the Supreme Court says so.

   	MR. ENNIS:  Exactly right, Judge Dalzell.

   	JUDGE DALZELL:  Isn't that a fair characterization?

   	MR. ENNIS:  That is completely fair.  The
   legislative history bears that out.  Congress thought --

   	JUDGE SLOVITER:  What about the use of the word
   "knowingly?"  Throughout this long proceeding I haven't heard
   anybody focus on the fact that Subsection D to which you
   refer specifically makes criminal only that which is
   knowingly sent to persons under 18 and knowingly permits
   under Subsection 2.  Wouldn't that be part of the
   Government's required case in chief and what does it mean?

   	MR. ENNIS:  I'm not sure, the Government would have
   to tell you what that means. It's unclear to me what it

   	JUDGE SLOVITER:  But it's in there.

   	MR. ENNIS:  It is in there and -- but and also is in
   there for Subsection D, but for Subsection D --

   	JUDGE SLOVITER:  It is D I'm talking about.

   	MR. ENNIS:  On its face it would simply mean knowing
   that you have displayed speech.  If --

   	JUDGE SLOVITER:  Don't you have to also know that
   it's a person under 18?

   	MR. ENNIS:  No, under D you only have to know that
   you have displayed speech in a manner that is, quote,
   "available" to a person under 18, whether anyone under 18
   ever had access to the speech or not.

   	JUDGE SLOVITER:  Well, then that's not A, you're not
   talking about D(1)(A), you're talking about D(1)(B).  And one
   says knowingly.  In other words, whoever in interstate or
   foreign communications knowingly uses any interactive
   computer service to display in a manner available to a person
   under 18 is part of the Government's burden to show that you,
   that the speaker or sender knew that there were people under
   18 receiving it?

   	MR. ENNIS:  I think that the fair inference from the
   statute would be that that would be so, but I don't know what
   the Government's position on that is.

   	JUDGE SLOVITER:  Well, lots of times we have been
   advised to construe a statute to construe the knowingly
   language in such a way as to make the statute constitutional. 
   That's a construction that is consistent with the language of
   the statute itself, we don't have to cut out any -- any

   	MR. ENNIS:  Yes. 

   	JUDGE DALZELL:  Isn't your point that America On
   Line, for example, or Compuserve has to know, they have to
   know because they'd be stupid not to know that it is
   available to people under 18 because there's no way of not
   making it available to people under 18?

   	MR. ENNIS:  That is the whole point, Judge Dalzell. 
   And if you make the speech broadly available to adults on the
   Internet, if you wish to speak to the world, this speech will
   necessarily be available to minors as well and you will know
   that it is available to minors as well and therefore --

   	JUDGE DALZELL:  And you won't be heard to say I
   didn't know.

   	MR. ENNIS:  Right.

   	JUDGE DALZELL:  Mr. Burrington could not appear in a
   courtroom in the District of Ohio where he's from AOL,
   whoever Compuserve is, and say oh, I didn't know there were
   people under 18.  He'd be cut to shreds by Mr. Coppolino and
   his friends on cross-examination, wouldn't he?

   	MR. ENNIS:  That's correct.  That's why Subsection D
   bans display of speech in a manner that's available to minors
   on the Internet.  And your question was didn't Congress
   simply think this is okay, we'll borrow the dial-a-porn
   analogy?  Unfortunately, Congress did not hold hearings on
   the nature of the Internet and it did not focus on this
   question.  It thought that the dial-a-porn analogy would
   work, it doesn't because the vast majority of speakers on the
   Internet do not charge for access to their speech.

   	There is a small subset of speakers on the Internet
   who do charge for access to their speech and those speakers
   can, with the dial-a-porn analogy, require the presentation
   of a credit card before they allow access to their speech. 
   It is a defense for that small subset of speakers.

   	JUDGE DALZELL:  Therefore your argument goes
   perversely the CDA if it were upheld, the people who could
   easiest, who could comply with it the easiest are precisely
   the pornographers.

   	MR. ENNIS:  It's even more than that, your Honor. 
   That's correct but it's even more than that.  The
   pornographers, the commercial pornographers who are charging
   for access to their speech were requiring credit cards before
   this act was passed.  They would continue to require credit
   cards if this act were enjoined, they would continue to
   require credit cards if the act were repealed.  This act does
   nothing to protect minors from the commercial speech by
   commercial purveyors of sexually explicit speech because they
   already require credit cards.

   	What the act does instead is to burden the huge
   range of non-commercial speakers on the Internet and say to
   them you cannot make your speech available for free to the
   world unless you carry the affirmative burden of coming
   within the safe harbors.

   	There are only three possible  types of safe harbors
   the Government has suggested and none of them can be used by
   non-commercial speakers.  The three categories I think can
   usefully be thought of as falling into three groups.  One is
   called charging, another would be called screening and a
   third would be called warning.  I think that's a fair way to
   think of these.

   	We just talked a little bit about the charging.  You
   can charge for your speech on the Internet but the evidence
   is undisputed that the only speakers who can use, require a
   credit card before giving access to their speech are
   commercial speakers who are actually charging for their

   	Credit card companies simply will not verify credit
   cards for non-commercial transactions, they don't do it. 
   Therefore if I have a Webpage and I want to make my speech
   available for free, I don't have the option of using the
   verified credit card defense.  No credit card company will
   verify it.  And that's true for the vast majority of speakers
   on the Internet.

   	So we can forget charging as a safe harbor defense
   for most speakers.  That brings us to screening.  Screening
   requires two things:  screening the content of the material
   to decide which material would be inappropriate for minors
   and therefore would have to be segregated into a different
   area and then would require screening for age, so that when
   people attempt to access the material that is the adults only
   material, you would be able to determine whether the person
   attempting to access the adult material was an adult or a

   	The evidence is quite clear on that that you cannot,
   there's no technological way to screen for age based on
   current available technology, it simply can't be done.  And
   in huge areas of the Internet News Groups, IRC Chat, lists or
   mail exploders, it is technologically impossible for the
   speaker to get an adult ID number or a credit card number, it
   can't be done.

   	And I want to emphasize something here because we've
   spent most of the time in this case talking about Webpages
   and the World Wide Web because that's a popular way of
   speaking on the Internet.  We haven't spent as much time
   talking about  News Groups, Chat Rooms and mail exploders for
   the very good reason that there's no dispute that the safe
   harbor defenses can't be used in those areas, credit card and
   adult access codes can't be used on those areas. 

   	But the important point is those are huge areas of t
   he Internet.  There are hundreds of thousands of messages a
   day that are posted to News Groups.  So we've concentrated a
   lot on the World Wide Web, but when we realized that this law
   bans speech in all those areas of the Internet, we're talking
   about substantial number of applications.

   	The third possible way of coming within a safe
   harbor is the Government has suggested there are really two
   ways to --

   	JUDGE SLOVITER:  Can you go back to the one before
   for a minute?

   	MR. ENNIS:  Sure.

   	JUDGE SLOVITER:  You argue that screening becomes
   ineffective or unusable because of the need for a common
   gateway interface?  Could you -- I think you argued that in
   your brief?

   	MR. ENNIS:  Well --

   	JUDGE SLOVITER:  Would you just bring us into that,
   explain why that is?

   	MR. ENNIS:  The reason that is in news groups, chat
   rooms and list services is there is no simultaneous
   communication between the speaker and the listener and the
   listener has no way of communicating directly with the
   speaker.  So it's not possible to transmit the adult ID code
   or the credit card number in those mediums of communication. 

   	On Web sites it is possible, it is theoretically and
   technologically possible for the speaker and the listener to
   communicate interactively.

   	JUDGE SLOVITER:  The big companies don't use comment
   room except common gateway interface.  Am I misreading the

   	MR. ENNIS:  No, you're -- you're completely correct,
   Judge Sloviter.  I was just trying to explain that in Web
   sites in general it is possible to have that kind of two-way
   exchange of information to send adult ID codes and credit
   card numbers back and forth, but for all of the Web sites
   that are offered by the major on-line service providers,
   those Web sites do not have the CGI common gateway
   interference script capacity that is needed to have that
   dialogue, so those Web sites can't do it.

   	The only Web sites really that can do it are
   separate commercial Web sites that are set up by commercial
   providers of sexually explicit material.  And they do it and
   they require credit card payment.

   	JUDGE SLOVITER:  Okay, you were going to your third,
   the warning.

   	MR. ENNIS:  The third is give warning.  The
   Government suggested there are basically two ways of coming
   within this safe harbor defense and that is to tag your
   speech, to self label your speech in some way as
   inappropriate for minors or to register your speech with the
   Internet Yellow Pages or with one or ten or fifty of the 200
   and so additional directories of Internet listings.

   	JUDGE DALZELL:  Are we to take that point seriously
   in light of what's happened to Compuserve?  Because they did
   take it and with that service that's in question that you
   brought to us, to our attention, it is, it says it's adult,
   it's tagged.  But it didn't prevent the headlines to
   Compuserve in the Ohio newspapers and I'm sure that ruined
   their day, don't you think?

   	MR. ENNIS:  I think it --


   	MR. ENNIS:  I think it -- I think it more than
   ruined their day, your Honor.  If you're a commercial on-line
   provider and there are headlines around the country saying
   you're being investigated or reviewed or whatever the word is
   for being a purveyor of pornography to children, you're not
   going to sign up a whole lot of new subscribers that day or
   for many days to come.  It more than ruined their day.

   	The -- I think you're right.  We can't  take --

   	JUDGE DALZELL:  I mean that suggests to me, and of
   course I'm going to ask our friends on the other side about
   this, are they really serious about these defenses?  Because
   that material was tagged, it had a warning. 

   	MR. ENNIS:  It had a warning and it not only had a
   warning, it was within the proprietary service and it said
   you can click this button and that material is not available
   to any minors in your household.

   	So not only was it tagged, not only was it in a
   separate directory, it also came packaged with a completely
   effective parental control device.  Even so, that matter was
   referred on to the FBI.

   	Now, the Government can't seriously argue that
   tagging or putting your name in a registry would constitute a
   safe harbor defense.  The most they've ever argued in their
   brief is that it, quote, "might qualify."

   	And the Keeney letter says at most it's substantial
   evidence and it's only substantial evidence if the evidence
   of tagging is coupled with, quote, "evidence that the
   marketplace of browsers are actually screening for that
   particular tag."

   	There was testimony at trial that that is
   technologically impossible today.  It is not technologically
   impossible today for speakers to know, to have evidence
   whether the marketplace of browsers are actually screening,
   so it's an evidence that's totally impossible to provide.

   	JUDGE SLOVITER:  Well, what -- I find both your
   position and the Government's position somewhat inconsistent
   internally.  You say you should, you have a better
   alternative and that is to have parents do it via Surfwatch
   and groups like that and yet you argue that the Government's 
   tagging system is not effective, nobody said it's really
   working yet.  The Government says its tagging system is the
   one that we should use but yours is not working and

   	Now, either there is a potential tagging system for,
   workable tagging system for both parties or there isn't.  The
   evidence shows that there was some success by Surfwatch but
   minuscule really in the totality of the Internet.

   	What is your position as to why your position is not

   	MR. ENNIS:  I understand your question, your Honor. 
   It is a complicated question, let me try to explain that.  In
   order to explain it, I have to back up a half step.

   	JUDGE SLOVITER:  Go ahead.

   	MR. ENNIS:  And indicate that even if a speaker tags
   or puts their -- registers with a registry, all it does is
   warn listeners, give them notice of the nature of the speech
   so that if they wanted to block the speech and had the
   software capacity, they could do so.

   	But the Government's experts agree that without the
   cooperation of the end user with people down the
   communication chain, merely tagging speech or registering it
   in a registry does nothing whatsoever to prevent access to
   that speech by minors.  In fact, using search engines minors
   can more easily gain access to that speech.

   	JUDGE SLOVITER:  Then why do you rely on Surfwatch
   and groups like that to say that is a least restrictive

   	MR. ENNIS:  Well, let me explain that, your Honor. 
   What's wrong with the Government's tagging proposal is it is
   completely dependent on end users, parental responsibility,
   or it won't shield a single minor from anything.  

   	JUDGE DALZELL:  But so is PICs.

   	MR. ENNIS:  Yes, yes, it is, but there's a diff--
   here's the difference, your Honor.  If the parent is going to
   be a responsible parent and is going to take steps to protect
   their children, with PICs, the parent can set the PICs
   browser so that it will not allow access to any speech on the
   Internet unless the speech has been rated as appropriate by a
   third-party bureau the parent knows and trusts.

   	That would completely protect minors from
   inappropriate material without requiring speakers to self-
   label or tag their speech at all.

   	JUDGE BUCKWALTER:  And that's the essential
   difference --

   	MR. ENNIS:  And that's the essential --

   	JUDGE BUCKWALTER:  -- in a nutshell.

   	MR. ENNIS:  It is.

   	JUDGE BUCKWALTER:  You don't want the speaker to
   have to do anything and the Government wants the speaker to
   have to make some judgment.

   	MR. ENNIS:  That's the point, your Honor. 


   	MR. ENNIS:  That is exactly the point because the
   Government -- 

   	JUDGE SLOVITER:  Are PICs currently working?

   	MR. ENNIS:  Actually, the press reports yesterday
   indicated that two days ago the final PIC standards are out,
   it will be working in July.

   	JUDGE SLOVITER:  All right.  We don't have any, I
   think we have to rely on the evidence that was before us.  We
   don't have any evidence that PICs is currently working. 

   	JUDGE BUCKWALTER:  Well, we --

   	JUDGE SLOVITER:  Well, wait a minute, could he
   answer my question first?


   	JUDGE SLOVITER:  You can -- go ahead.  And, yeah,
   it's directed to him.

   	MR. ENNIS:  Well, that's right and that's evidence,
   what that means is that PICs isn't working to block the
   Government's tags either, so that  there's no safe harbor
   today, even if speakers use the Government's L-18 pack.

   	JUDGE DALZELL:  But didn't Mr. Vesser who's from the
   Worldwide Web consortium, didn't he tell us that PICs would
   be operational in three to six months?

   	MR. ENNIS:  Yes, it will be.

   	JUDGE DALZELL:  But that is in the record. 

   	MR. ENNIS:  Yes.  Probably in June or July it will
   be operational.  There are -- there are --

   	JUDGE BUCKWALTER:  Mr. Ennis, let me get back to the
   point here, at this point, and then -- it might be the right
   time to get back to it.  You gave a little bit of short
   shrift and I'm sure not intentionally to my talking about
   burden of proof here.  Burden of proof may not be important,
   I'm not sure yet, but isn't the burden of proof always going
   to be on the Government in a case like this to prove that the
   defendant has not -- the burden's not going to be on the
   defendant to prove his safe harbor is effective, it's going
   to be on the Government to prove that it's not effective. 

   	MR. ENNIS:  I'm afraid not, your Honor.

   	JUDGE BUCKWALTER:  Because it's like a defense of
   insanity.  I mean you can arrange a defense of insanity but
   the Government has to prove you were sane, you don't have to
   prove you were insane. 

   	MR. ENNIS:  Well --

   	JUDGE BUCKWALTER:  And isn't that the same analogy

   	MR. ENNIS:  It's been a long time since I looked at
   the insanity defense but my recollection is the Government
   has to prove you had the mental intent to commit the crime
   but you bear the burden of establishing insanity defense.

   	JUDGE BUCKWALTER:  No, no, well, I don't -- that's 
   a -- that isn't really what you and I have here.  I think the
   same is true in a consensual defense to rape, for example. 
   You may raise that defense but the Government has the burden
   of proving it was non-consensual.  You don't have any burden
   to --

   	MR. ENNIS:  Well --   	   

   	JUDGE BUCKWALTER:  -- to prove it was consensual. 
   So I mean in this, so in this --

   	MR. ENNIS:  Your Honor --

   	JUDGE BUCKWALTER:  -- context of criminal law --

   	MR. ENNIS:  Let me say that --

   	JUDGE SLOVITER:  Why don't you wait till the rest of
   the question, the rest of Judge Buckwalter's question came

   	JUDGE BUCKWALTER:  Yeah, I was going to say in the
   context of criminal law isn't the burden going to be on the
   Government here?  Once the defendant raises the fact of well,
   I tried to do this and this is what I did, he doesn't have to
   prove that was effective, the Government has to prove that it
   was not.

   	MR. ENNIS:  Your Honor, I would hope so.  That's not
   my understanding of the Government's position, but it doesn't

   	JUDGE BUCKWALTER:  I'll talk to them about that.

   	MR. ENNIS:  It doesn't matter because even if the
   burden is on the Government, still the speaker can have no
   assurance whatsoever that if they take the steps the
   Government suggests they will surely and safely have a safe
   harbor, even if the burden is on the Government to prove that
   the steps were not effective rather on them to prove that the
   steps were effective, they are still at risk of losing that
   battle in front of a jury.  And it could be any jury in any
   community in America.

   	Therefore, no prudent speaker --

   	JUDGE BUCKWALTER:  Yeah, well, now I'm not exactly
   sure I know where this burden of proof argument goes in this
   whole scheme of things but I did want to discuss it.

   	MR. ENNIS:  Well, I think it's a very important
   point and the way I would say it is the statute is
   unconstitutional, whether the burden is on the Government to
   deal with the safe harbor defenses or the burden is on the
   speaker.  The unconstitutionality is compounded if the burden
   is on the speaker.

   	But backing up to Judge Sloviter's question, there
   are right now today through all of the major on-line service
   providers ways to block access through Compuserve or Prodigy,
   for example, to all speech on the Internet that the parents
   don't want to come in or on America On Line to block access
   to all areas of the Internet except the small areas that
   America On Line has prescreened and put in their Kids Only
   room as appropriate for children.

   	So there are end user capacities for everyone who
   uses the on-line service providers to block access to the
   Internet today.

   	The point I'm trying to make with this -- the
   difference between the Government's proposal and ours is the
   act, tagging and registering cannot possibly protect minors
   unless parents acquire software that will read the tags and
   then turn it on and use it.

   	If the parents do that, there is no need for the act
   because they can block access to all inappropriate speech
   even if no speaker ever self-labeled or rated their speech
   and even if there had never been any act at all.

   	JUDGE DALZELL:  Doesn't Dr. Olsen's proposal, the
   minus L-18 proposal have at least one advantage over PICs, as
   I understand the testimony?  And that is with his tagging
   proposal you could tag the four-letter words in the
   Canterbury Tales, let's say, and expurgate the Canterbury
   Tales by tagging those words, whereas as I understand PICs,
   the best you could do would be to give each page a URL and
   delete the whole page that has a four-letter word on it.  Do
   I understand the testimony correctly?

   	MR. ENNIS:  The testimony was to my mind somewhat
   confusing on that point but I think that may be an accurate
   recollection of the testimony.  There are some advantages to
   the L-18 over PICs and some -- and many advantages to PICs
   over L-18.  The principal advantage of L-18 is it's typing in
   four key strokes, that's it.  The principal disadvantage of
   L-18 is it's a blockbuster, all-or-nothing approach. 
   Everything is either patently offensive or it's okay.

   	Whereas with PICs you can say well, this has some
   nudity but it's in the context of a serious piece of
   literature or --

   	JUDGE DALZELL:  Even under PICs, for example, we
   heard from Mr. Kuromiya and his group.  When PICs becomes
   operational doesn't Mr. Kuromiya have a tough call to make
   about the critical path information?  Because as I understand
   his testimony, he said we want to reach those sexually active
   teenagers who are under 18.  So far from having a good faith
   defense that I did what I could to prevent it, he's going to
   come in and tell the jury:  I want to reach them.  In fact, I
   want to pander and titillate them because I need to get their
   attention to help save lives.

   	So what's he going to do with PICs?

   	MR. ENNIS:  I think that your question illustrates
   another difference between PICs and the Government's proposal
   which is quite important to understand.  PICs primarily
   relies upon ratings by third parties that the parent can no
   or trust.  In that example perhaps Planned Parenthood would
   rate Web sites of material that's sexually explicit but
   appropriate for minors.  The parent might trust Planned
   Parenthood.  They go to Planned Parenthood and Planned
   Parenthood says yes, you can let your child access Kuromiya's
   Web site, that's okay, it's good, it's valuable information.

   	The Government's proposal, the parent would have to
   know and trust each of the individual millions of speakers on
   the Internet.  Why would a parent do that?  Why would a
   parent have any reason whatsoever to trust that some
   individual speaker they know nothing about is accurately and
   appropriately labeling their speech or is inappropriately
   labeling their speech?

   	JUDGE SLOVITER:  Why would a parent trust anyone to
   do that?  Isn't that a similar indictment of the Surf Watch
   et al. argument?

   	MR. ENNIS:  Well, a parent certainly could come to
   rely upon third-party rating bureaus that the parent has some
   knowledge of, for example, the Christian Coalition could have
   a rating service that many parents might turn to, the ACLU
   might have one, Planned Parenthood might have one.

   	JUDGE SLOVITER:  How feasible are any of these in
   light of the evidence in this case of the millions of
   communications that go on all the time on the Internet?  And
   that's both for the Government's proposal and your proposal.

   	MR. ENNIS:  Well, what that comes down to, Judge
   Sloviter, is the amount of risk that individual parents are
   willing to tolerate with respect to their own children.

   	And the advantage of PICs and Surf Watch Manager and
   all of the other products we've talked about is they give
   parents total control, all the way from zero access to the
   Internet to unrestricted access to the Internet or anything
   in between, based upon the parents' judgment of the balance
   that's appropriate for their children.

   	That's why -- that's another reason why our proposal
   is better than the Government's but the most important reason
   why it's better, let me get right to that, is that the
   Government's proposal, the Government's tagging and
   registration proposal will be completely ineffective at
   blocking or deterring any of the substantial amount of
   sexually explicit speech that is posted abroad.

   	By definition the criminal laws of this United --
   United States are not going to deter the posting of indecent
   or patently offensive material abroad.

   	So the Government's tagging system won't work, it
   just can't, can't work at all.

   	There was testimony by Ann Duvall that at least 30
   percent of the sites blocked by Surf Watch are foreign sites. 
   There was testimony by Donna Hoffman that at least 40 percent
   of all the host computers connected to the Internet are
   located abroad and that the percentage of foreign computers,
   as a percentage of the total, is rapidly approaching 50

   	There's no reason to think that there's any less
   percentage of sexually explicit material posted on foreign
   computers than on domestic computers, so it's probable that
   about 50 percent of the sexually explicit material available
   on the Internet is posted abroad.

   	JUDGE DALZELL:  Didn't Dr. Olsen or Mr. Schmidt, I
   forget who, say well, that's all true, but if we have the
   tagging we can concentrate all of our energy on the offshore
   content and so we've reduced our problem by, to take your
   figures, half.

   	MR. ENNIS:  But it just doesn't, it makes no sense
   at all.  If they have the tagging but parents are not using
   the blocking software, the tagging does nothing.  If the
   parents are using the blocking software you don't need the
   tagging to keep all of that speech away from children. In
   fact, it's only with the use of the end user software that
   you can block access to the foreign material as well.

   	JUDGE DALZELL:  But on the PICs proposal there was a
   lot of discussion in the testimony and in your questions and
   in the briefing about differing communities and differing
   communities having different standards of indecency, let's
   say.  I don't see how PICs deals with that because PICs is
   still an all or -- or tagging for that matter, they're still
   all or nothing.

   	The example I gave of Brainerd, Minnesota versus New
   York City, okay, which I think most people would agree are
   rather different communities, PICs would either block both
   places or not block both places, same thing with tagging,
   right?  So you don't deal with the community issue with PICs.

   	MR. ENNIS:  That raises the fundamental question
   with this law because the law makes it a crime to make speech
   available in a way that's available to minors.  And if a
   parent isn't using PICs  or Surf Watch, that speech will be
   available in all those communities you talked about.  That's
   the fundamental problem with the law.

   	If Congress had thought about this, they might have
   tried to come up with a much more sensible law that could
   have done many things.  For example, it could have encouraged
   the development of these end-user software products.  

   	One of the real problems with this law, in my
   opinion, is that it gives the wrong signal to parents.  I
   think it gives a signal to parents that the Federal
   Government has stepped in and taken care of the problem of
   inappropriate material on the Internet, so parents don't need
   to worry.  

   	In fact, parents do need to worry.  Even with the
   Government's tagging proposal, if parents don't go to the
   trouble of acquiring and using parental software devices, all
   of that material will be available to their children despite
   this act.  That's one thing I hope can come out of the
   publicity surrounding this case is that parents will learn
   that they do have available to them very effective parental
   control devices, but they have to use them.

   	This act has not taken care of the problem and if
   the parents don't use those devices, all the sexually
   explicit speech on the Internet will be available in every
   home in America that's connected to the Internet, despite the

   	Let me briefly say, there were some questions about
   facial challenge, in earlier briefs the Government seemed to
   take the position that we could not bring a facial challenge. 
   But if you look at Pages 14 through 17 of the Government's
   post hearing brief, the Government acknowledges that we can
   bring a facial challenge in at least two ways.  We're
   bringing a vagueness challenge and we're alleging that the
   act is vague in all applications, so that's appropriate as a
   facial challenge.

   	More to this point, the Government now acknowledges
   that we can bring a substantial over-breadth facial challenge
   and we have standing to do that, all we have to show is that
   the law is substantially over-broad.

   	And in answer to the question from your Honors, the
   two cases that discuss that are Shomburg and City of Houston,
   both of which say that a law is over-broad if a substantial
   number of its applications would be unconstitutional.

   	What I think we have shown is that Subsection D is
   substantially over-broad because in every one of its
   applications except for commercial speakers, it bans speech
   that is constitutionally protected for adults.

   	JUDGE SLOVITER:  Why do you keep ignoring Subsection
   A which I think you also challenge?

   	MR. ENNIS:  Well, we do challenge it, your Honor. 
   We're not ignoring it, it's just that the --

   	JUDGE SLOVITER:  Well, you keep focusing on
   Subsection D.

   	MR. ENNIS:  That's right.  That's because Subsection
   D is the section that will affect most Internet speakers,
   those who want to make their speech broadly available to the

   	Subsection A is a more focused law about speakers
   who want to make their speech available to a much more tiny
   segment of the world.  We do challenge both, but the truly
   draconian and sweeping provision of this law is Subsection D.

   	JUDGE DALZELL:  If the Government though -- and I
   intend to ask Mr. Coppolino about this -- the Government does
   say in Footnote 46 of their brief, Page 37, I think, that
   they have, quote, "concerns," close quote, about your
   standing because they argue that your worries are so far
   fetched, so hyperbolic as to raise these, quote, "concerns,"
   close quote, about your standing.  Do you want to address

   	MR. ENNIS:  Well, first of all, I think the
   Government is simply wrong about that, I think our concerns
   about our standing are not at all hyperbolic or far-fetched
   as the Compuserve incident from just two days ago would make
   painfully clear.

   	This is a law which, if you look at the text and at
   the conference report, makes clear it criminalizes the
   display of patently offensive speech that is not obscene and
   the law makes clear that that speech is criminalized even if
   it has serious value.

   	Therefore, all of our speakers who engage in speech
   that does have serious value are at risk of prosecution under
   this law.

   	Also, under the over-breadth doctrine, pure over-
   breadth doctrine, we would have standing under Fox to bring
   this challenge on behalf of those speakers whose speech did
   not have serious value.  So either way you look at it, I
   think there's no standing issue in this case.

   	JUDGE DALZELL:  Well, it's certainly true that the
   Government has said consistently that -- and of course it
   never filed a motion as to standing and it was assured to me
   when we were talking about the stipulations that the
   Government had no standing concerns, but that Footnote 46
   raised my eyebrows a little bit and that's why I raised it
   with you.

   	MR. ENNIS:  Well, let me make a footnote point to
   that is that not only have we brought an extraordinarily
   broad coalition of plaintiff groups representing truly
   virtually all of the mainstream media publication and
   computer entities in America.  Those groups have sued also on
   behalf of their patrons, their subscribers and their users. 
   The librarians are also suing on behalf of their patrons and
   members.  America On Line is suing on behalf of its

   	So we're suing on behalf of millions of speakers on
   the Internet.  Many of those speakers speak to news groups,
   list serves, IRC chat rooms, and it's quite likely that some
   of the speech they engage in would not have serious value
   under the Government's definition. 

   	So we're also speaking on behalf, we're bringing
   this suit on behalf of speech that does not have serious
   value.  Accordingly, we have standing for that third reason
   as well.

   	I'd like, if I could, to make one final point and
   then reserve the balance of my time for rebuttal.

   	JUDGE SLOVITER:  I think you've used most of your
   time, but go ahead.

   	JUDGE DALZELL:  Yes, you've reserved 15 minutes for

   	JUDGE SLOVITER:  But we'll see -- we'll hear you on

   	JUDGE DALZELL:  And you ten, right.

   	MR. ENNIS:  Do I still have some time left?

   	JUDGE DALZELL:  Yes, you have five minutes.

   	MR. ENNIS:  Let me make one brief point.

   	JUDGE SLOVITER:  And a substantial amount of your
   initial time.

   	MR. ENNIS:  Yes.  The Government suggests that the
   act should not be struck down because the act in combination
   with user blocking software would be more effective than
   either alone.  There are several problems with that argument. 
   First, as I think we have shown, this act does nothing,
   literally nothing or at most only a marginal amount to
   protect children from inappropriate speech that would not
   already be done as a result of market forces and end user
   software even in the absence of the act.  And that marginal
   benefit comes at the expense of suppressing constitutionally
   protected speech for adults.  So the act violates --

   	JUDGE SLOVITER:  That implicates a factual issue as
   to how frequently one might -- well, a child is likely to
   inadvertently find speech that was intended to be suppressed
   by this statute.

   	What is your understanding of, given all the
   evidence that we saw here, of the frequency of what the facts
   show as to the frequency of an inadvertent coming across

   	MR. ENNIS:  I think the evidence on that is clear
   and I think Congress agreed.  The Government's expert, Howard
   Schmidt, testified in court that, quote, "The odds are slim
   that someone would come across a sexually explicit site by

   	Congress in fact found in the act in one of its
   findings that the interactive computer services, as the name
   suggests, the word interactive, "offer users a great deal of
   control over the information that they receive as well as the
   potential for even greater control in the future as
   technology develops."

   	JUDGE SLOVITER:  Well, now we saw a few examples
   presented by the Government's witnesses where that was
   likely.  What I have yet to see is somebody testify as to
   how, beside the very slim, how frequently that could occur
   because obviously it can occur.

   	MR. ENNIS:  It obviously can occur and --

   	JUDGE DALZELL:  We saw it in the Jasmine example.

   	MR. ENNIS:  Yeah, it obviously can occur.  We don't
   take the position that it is impossible to be surprised by
   what comes up on your computer screen.

   	We do take the position and have all testified to
   this effect, Bill Burrington testified to this effect, that
   in interactive computer services, unlike broadcast TV or
   radio, the speaker, I mean the listener makes an affirmative
   choice of where they are going to go and they have to select
   where they're going to go.

   	You don't turn on your computer and sexually
   explicit images pop on your screen.  You turn on your
   computer and you have to select where you want to go to get

   	JUDGE SLOVITER:  Is the Government entitled to
   prevent a child who wants to go into sexually active material
   from being able to do so?

   	MR. ENNIS:  Regardless of the parents' wishes?

   	JUDGE SLOVITER:  Mm-hmm.

   	MR. ENNIS:  I think that's a very difficult
   question, your Honor.  I think as a constitutional matter if
   Congress wanted to have as an interest and to exercise a
   parents' patri interest in protecting child-- minors from
   access to material, even if their parents thought it was
   appropriate for their children, it could conceivably have
   such an interest.  It would raise very serious constitutional
   questions in my mind, some of which are noted in the Fabulous
   opinion by your Honor.

   	But the important point here is, is that Congress
   has given us no reason whatsoever to think that that is the
   interest underlying this act.  To the contrary, in this act
   Congress found as a fact that its objective in the text of
   the act was, quote, "To empower parents to restrict their
   children's access to objectionable or inappropriate on-line
   material" and the conference report is even clearer.

   	The conference report confirms, quote, "The
   important Federal policy of empowering parents to determine
   the content of communications their children receive."

   	JUDGE SLOVITER:  Isn't there evidence on the record
   that there are a great number of possibilities for people
   under 18 to access the Internet outside of the home?  There
   are lots -- there's lots of evidence --

   	JUDGE DALZELL:  Internet cafes.

   	JUDGE SLOVITER:  Well, but even if little children
   don't go to cafes --

   	JUDGE DALZELL:  Libraries.

   	JUDGE SLOVITER:  -- at libraries, et cetera,

   	MR. ENNIS:  Schools.

   	JUDGE SLOVITER:  Yeah, and where -- and you also
   assume in your argument and in your brief very knowledgeable
   parents, parents who know how to, assuming they have a
   computer in the house, who will know how to contact the
   entities that will be able to help them in putting things
   like Surfwatch on.  

   	And I'm not sure how realistic that is in today's
   world.  I mean we have children who don't know about birth
   control, who aren't told by their parents about AIDS, because
   we have a whole substrata of our society in which parents are
   unwilling or unable to give this information.  So how can you
   make the assumption that we can rely on parents for this kind
   of protection?

   	MR. ENNIS:  Well --

   	JUDGE SLOVITER:  And do we have to?

   	MR. ENNIS:  Two responses, your Honor.  Your final
   question is yes, we do have to.  If parents do not act
   responsibly, if parents don't do what they can do, nothing in
   this act will protect children from inappropriate material,

   	But the two answers I'd like to give are first, I
   respectfully disagree with your Honor.  I think the testimony
   by Ann Duvall, the testimony by Bill Burrington was clear
   that it is very easy for parents to use the parental control
   devices like Surfwatch, Surfwatch Manager, the America On
   Line Compuserve Project Parental Control devices, it's really
   quite easy.  Any parent that has a computer can almost
   certainly use those devices.

   	Second, if parents can't figure out how to use those
   devices then that is a problem for the Government as well
   because the Government's whole idea about tagging or
   registering speech can't work unless the parents have the
   capacity to use that end-user software.  So if it's a
   problem, it's a problem for the act, not a problem for our

   	JUDGE DALZELL:  Last question, the same question I
   asked Mr. Hansen.  Senator Exon and Senator Coates give you
   the pen to write child of CDA, do you give it back to them or
   do you write something?

   	MR. ENNIS:  Well, my first answer would be exactly
   what Mr. Hansen answered, wait a decent interval, let the
   marketplace work, especially since Congress made findings of
   fact that it wanted to preserve a vibrant, free market in the
   Internet, quote, "unfettered by Government regulation."  Let
   the market work for a while and see if you even need any
   governmental intervention of this nature whatsoever.

   	But if I were pushed to try to come up with a
   different law I think there are many things Congress could
   have considered that would have narrowed the scope of the
   law, in answer to Judge Sloviter's question, without even
   thinking about the affirmative safe harbor defenses.

   	If Congress was truly concerned about commercial
   pornography it could have written a much narrower law that
   only criminalized the display to minors of truly sexually
   explicit material. 

   	JUDGE DALZELL:  But those laws already exist.

   	MR. ENNIS:  Well, for obscenity it does, but they
   could have gone down one notch and tried that.  They could
   have made clear that speech with serious value is not
   criminalized, they could have done that.

   	JUDGE DALZELL:  So you disagree with what Mr. Hansen
   said about the medium specific aspect here?

   	MR. ENNIS:  Oh, no, no, no, not at all.  The reason
   that this very broad coalition of plaintiff groups is before
   the Court today is precisely to emphasize the point that this
   medium of communication truly is unlike any other that has
   ever gone before it and that the appropriate First Amendment
   standards of review that this Court must develop to govern
   regulation of this new medium of communication have to take
   those characteristics into consideration.

   	One of the principal characteristics is it is a
   truly global medium, which Congress forgot about it.  It is
   not as if patently offensive speech that's posted abroad has
   to come through a Customs Office checkpoint before it reaches
   American homes where it can be physically screened by Customs
   officers.  Everything that's posted abroad is instantly
   available in every home in America, this is a global
   communications medium.

   	I can suggest a few other ways of narrowing the
   statute that Congress could have considered.  For example,
   the Government has made much in its evidence about the so-
   called teaser ads by commercial providers of sexually
   explicit speech who have teaser ads and then charge with
   credit cards to actually get into their Web sites.

   	If that was really Congress' concern, Congress could
   have crafted a much different statute designed to regulate
   advertising.  Now, in my opinion there would be very, very
   serious constitutional problems with regulation of
   advertising on the Internet, but they would be of a different
   order of magnitude because they would be judged under the
   intermediate standard of review, not under strict scrutiny
   because commercial speech is judged on an intermediate
   standard of review.  That's another narrower thing Congress
   could have done.

   	There are many ways Congress could have narrowed
   this law, the most important of which would be to take out
   the word speech available to minors.  That basically bans all
   speech.  Congress could have said, passed a law that said
   before you engage in patently offensive speech on the
   Internet you should give fair warning that your speech is
   patently offensive.  Then all these tagging defenses would
   make some sense because you would be giving fair warning. 
   That's a different scheme that Congress, I think probably
   would be an unconstitutional scheme, but it would certainly
   be a narrower scheme than the one Congress adopted.

   	JUDGE SLOVITER:  It doesn't help to suggest what you
   think is unconstitutional now, does it?


   	MR. ENNIS:  I was just trying to respond to Judge
   Dalzell's question.  If I were --

   	JUDGE SLOVITER:  The answer may be -- I mean if you
   really think it -- that there's nothing that Congress could
   have done constitutionally.

   	JUDGE DALZELL:  It's okay to say that, Mr. Ennis.

   	JUDGE SLOVITER:  I mean I'm not sure that's right --


   	JUDGE SLOVITER:  -- but I can't see how it helps us
   to suggest statutes that you would later challenge.

   	JUDGE DALZELL:  Because for sure you wouldn't want
   to repeat what's happened with dial-a-porn, would you?  That
   is to say where you have ten years of litigation over the

   	MR. ENNIS:  No, I think that's right and I think
   that's precisely why Congress specifically authorized a
   facial challenge in this case because there's allegedly
   history makes clear that Congress did not want to wait for
   ten years to find out whether they've got a valid law or not.

   	And if it's limited to an as-applied challenge, then
   you're into years of litigation about the constitutional
   scope of the law.  That's why I think Congress invited a
   broad facial challenge to this law.

   	Let me finish the point I said was the final point I
   was going to make about this combination.  The Government's
   argument that the less drastic alternative of end-user
   software coupled with the act would be more effective than
   either alone.  That argument is flatly inconsistent with
   current law and would basically wipe out the less restrictive
   alternative requirement of strict scrutiny because it is
   almost always the case that a combination of the Government
   prohibition and the less restrictive alternative together
   would be more effective than either alone.

   	In the Bolger case, for example, the combination of
   the Government prohibition on unsolicited mailings when
   combined with the less drastic alternative of parental
   supervision of incoming mails would surely be more effective
   than either alone, but the Supreme Court struck down that
   governmental prohibition and relied exclusively and solely on
   parental supervision of what their children would receive in
   the mail.  That's the appropriate response for this case as

   	Thank you.

   	JUDGE DALZELL:  All right, we will -- go ahead.

   	JUDGE SLOVITER:  We will recess for 15 minutes,

   	(Court in recess; 11:07 to 11:28 o'clock a.m.)

   	THE COURT CLERK:  Court is now in session, please be

   	MR. COPPOLINO:  Good morning, your Honors.

   	JUDGE DALZELL:  Good morning, Mr. Coppolino.

   	MR. COPPOLINO:  Your Honors, just first by way of a
   couple of procedural points, whatever the Court's wishes are
   in terms of our having rebuttal time, if you would permit us
   I would reserve ten minutes if you could --

   	JUDGE SLOVITER:  Why would you have rebuttal time?

   	MR. COPPOLINO:  Well, that's -- if you want them to
   have  the last word then that's fine with me.

   	JUDGE SLOVITER:  No, that's not the question as to
   whether we want them to have the last word, you didn't call
   it, this is not an appeal, you didn't cross-appeal.

   	MR. COPPOLINO:  I understand.

   	JUDGE SLOVITER:  And I didn't understand the whole
   thing about surrebuttal.

   	JUDGE DALZELL:  There's no counterclaim, at least
   that I've seen.

   	MR. COPPOLINO:  Okay, then forget that then.  I
   think -- 

   	JUDGE SLOVITER:  Good try.


   	MR. COPPOLINO:   I had to try.

   	That being the case, Mr. Baron and I will divide the
   argument essentially along the lines that Mr. Hansen and Mr.
   Ennis divided it.  I do expect that I will cross over a bit
   into Mr. Ennis' area to talk about the safe harbor defense
   concerning credit cards and access codes and the parental
   control software is the least restrictive alternative with
   respect to that.

   	Given the amount of time we have, you know, I would
   expect to go for about an hour on my time and then Mr. Baron
   would have about an hour thereafter.

   	JUDGE SLOVITER:  You will forgive us if we don't
   keep in our minds what the break of the -- of you both is and
   if we ask you questions that -- I'd rather you not say well,
   Mr. Baron's going to handle that.  It's the frustration of
   having two arguers rather than having one that you can do
   unless it's something that really Mr. Baron promises to get

   	MR. COPPOLINO:  Yes.  Well, the only area, I think
   it's a very discrete area having to do with the defenses for
   the non-commercial providers concerning tagging, labeling--


   	MR. COPPOLINO:  -- registering, Dr. Olsen's areas,
   there's some crossover.  And I'll, if I feel like he could
   have the better handle on it, I'll just --


   	MR. COPPOLINO:  -- so indicate.

   	JUDGE SLOVITER:  Are you finished the procedure?

   	MR. COPPOLINO:  Yes, I am, your Honor.

   	JUDGE SLOVITER:  Good.  Mr. Coppolino, I would like
   to know because I'm not satisfied that I fully understand at
   this point what is the Government's position as to what the
   statute, A and D, let's leave aside C, what the statute

   	MR. COPPOLINO:  I take it by your question, your
   Honor, you are specifically asking about the indecency
   standard, what types of speech it covers.

   	JUDGE SLOVITER:  No, I'm asking about -- that's my
   second question which is whether they really are the same
   thing, but what do you understand -- I read your brief very
   carefully, I even indexed it all myself, no law clerks, what
   do you --


   	JUDGE SLOVITER:  -- what is your position as to what
   is covered by the statute?

   	MR. COPPOLINO:  The statute, I -- I would say on its
   face covers indecent, that is patently offensive
   communications over a telecommunications device in 223(A) and
   an interactive computer service in 223(D).  And therefore it
   could cover communications across various media, Web sites,
   Usenet groups and so on that might be within that standard of
   patently offensive.  So --

   	JUDGE SLOVITER:  And is that the way we have to read
   the statute?

   	MR. COPPOLINO:   I don't think that's the way you
   necessarily have to construe it and I think as you may
   discern from our brief an important point we would make to
   the Court, principally in connection with the substantial
   over-breadth argument is that if there are some applications
   that give the cause concern that the Court would have to look
   to whether the plainly legitimate sweep of the statute is
   substantial or whether the applications that you consider
   might be unconstitutional are substantial in comparison to
   the plainly legitimate sweep.

   	I'm jumping ahead a bit, but --

   	JUDGE SLOVITER:  No, well, but I think we have to
   get, because everything else will follow, I assume everything
   else follows from what you claim is covered.

   	Now, do you claim -- I'm going to ask you a series
   of questions if my colleagues will permit because -- do you
   claim that A and D, the patently offensive and the indecent
   provisions are the same?

   	MR. COPPOLINO:  Yes, I do, your Honor.

   	JUDGE SLOVITER:  Now, then I want to know if that's
   so, I mean how can you do that in light of the language?  For
   example, D talks in terms of communications that describe
   sexual or excretory activities or organs.  Is that anywhere
   in A?

   	MR. COPPOLINO:  It is not specifically defined in A. 
   Here is my position on that --


   	MR. COPPOLINO:  -- point, your Honor.  Our position
   is that as the courts have construed the term indecent or
   indecency, that the meaning for that term, the standard, if
   you will, has been communications which in context describe
   sexual or excretory activities or organs in a patently
   offensive way.

   	In Pacifica case, for example, the standard, the
   statute at issue specifically  used the word "indecent." 
   That's all that it had.  And the FCC interpreted the standard
   to mean patently offensive communications of sexual or
   excretory activities in every other case that has interpreted
   the decency standard has interpreted it to mean that.  So
   that's our position.

   	JUDGE SLOVITER:  Yeah, but --

   	JUDGE BUCKWALTER:  Okay, you have the same -- I know
   you have  the same question, I guess.

   	JUDGE SLOVITER:  Go ahead, you go ahead.

   	JUDGE BUCKWALTER:  There's -- there's no other act
   though quite like this one, is there, where you have in the
   one section the indecent and in another totally different
   section dealing with a totally different subject because
   you're not dealing with telecommunications in D, you're
   dealing with interactive computer.  You have a totally
   different prohibition, okay?  So there's nothing quite like
   this before, has there?

   	MR. COPPOLINO:  No, there's nothing quite like this
   statute before, no, your Honor.

   	There is -- there is --

   	JUDGE BUCKWALTER:  I guess that's a --

   	MR. COPPOLINO:  I don't think it's totally different
   though, Judge.  I would say that, as we had a separate brief
   on this issue of what is the difference between
   telecommunica-- telecommunications device and interactive
   computer service and I --

   	JUDGE BUCKWALTER:  But the statute itself says
   something, doesn't it, or did I misread that, that the
   interactive computer is not telecommunications?

   	MR. COPPOLINO:  It's not, it's not
   telecommunications device, but the point I was going to make
   is that a transmission of a communication all through the use
   of a modem, say, over a computer system would be covered by
   A, and therefore we don't think it's that different.

   	I recognize there are some -- there are some
   legislative craftsmanship problem here in that they didn't,
   didn't have a separate section which says definition indecent
   or so on, but I think there is so much case law --

   	JUDGE BUCKWALTER:  You might not even have to have
   that if you didn't have two different, plain different words

   	JUDGE DALZELL:  But doesn't the conference report
   make it clear that they do have the same meaning?

   	MR. COPPOLINO:  I think so, your Honor.  I think--

   	JUDGE DALZELL:  Because the conference report makes
   it absolutely clear that these terms are taken from Pacifica
   and Sable, doesn't it?

   	MR. COPPOLINO:  Well, I think it does, it referred
   to the definition of indecency as its been con-- as its been
   construed in Pacifica and Sable.

   	JUDGE SLOVITER:  Well, I want the Government's
   position.  I mean we'll get each other's, yeah, afterward.

   	MR. COPPOLINO:  That is our position.  That is our
   position, that when we are talking about the indecency
   standard in 223(A), the word "indecent" or the patently
   offensive provision in 223(D), we are talking about the
   indecency standard as it has been construed and understood by
   the Courts from Pacifica, Sable, the Dial-A-Porn cases and so

   	JUDGE SLOVITER:  So you want us to write into A the
   words describing sexual or excretory activities or organs?

   	MR. COPPOLINO:  Well, yes, your Honor.

   	THE COURT:  But they're not in there.

   	MR. COPPOLINO:  Yeah, I -- I don't think that is an
   enormous task of statutory construction based on our
   representation as well as the legislative history but yes --

   	JUDGE SLOVITER:  Well --

   	MR. COPPOLINO:  -- I think you should interpret
   indecent in A as patently offensive descriptions of sexual or
   excretory activities.  I don't know how else it would be --

   	JUDGE SLOVITER:  Does that give notice to the
   required notice in a criminal statute to all the people who
   may be subject to this?

   	MR. COPPOLINO:  I think it -- I think it certainly
   would give substantial notice because obviously as part of
   the process we have a legislative process and we have a
   process whereby the Federal Courts undertake a constitutional
   interpretation of it and I think that that interpretation
   just on that point would be fully consistent with a broad
   array of case law discussing the indecency standard and what
   that standard specifically means, particularly where I don't
   think there's any disagreement between the parties and I
   don't think that there is any case law to suggest that there
   would be some different meaning to the word indecent in

   	JUDGE SLOVITER:  Okay.  And you want us also, as I
   read your brief, to read the statute to have a built-in
   exception for works of value.  Let me -- that's a sort of a
   paraphrase of what your brief says.  Is that correct?

   	MR. COPPOLINO:  I'm sorry, I can't really agree with
   that characterization, your Honor, it's too broad an issue. 
   And if I could just try to explain it, I would --

   	JUDGE SLOVITER:  Sure, I would certainly like to
   hear that -- keep to that in light of the legislative

   	MR. COPPOLINO:  Yes, I will do that.

   	JUDGE SLOVITER:  -- which says we won't accept such
   a exemption.

   	MR. COPPOLINO:  Yes, I understand, I understand your
   question and let me try to get to it as directly as I can.  I
   think that obviously the first major line of attacks by the
   plaintiffs in trying to demonstrate that the statute
   effectively bans speech is not only that it's over-broad
   across applications but the indecency standard covers a broad
   array of speech.

   	And while arguing at the same time that we are
   trying to narrowly construe it, that we have equated it to
   pornography, that is really not what we have attempted to do. 
   We are asking the Court to construe that standard in the
   context in which it's been applied by Congress and upheld by
   the courts.

   	For example, it has been applied by Congress in
   regulating Dial-A-Porn, it has been applied by Congress in
   regulating cable and leased access television to materials
   that clearly constitute the type of sexually explicit
   materials that one could characterize as pornography.

   	And our point is that it's not simply anything about
   sex or anything with an expletive, the parameters are fairly
   specific.  It has to first concern sexual or excretory
   activities, not just any kind but patently or obviously
   offensive material.  Now, that can include pornography.  It
   can also include what we would consider to be shocking,
   offensive or vulgar textual discussions such as were at issue
   in the Pacifica case and we're not suggesting otherwise.

   	Certainly the language on a number of the cites that
   we provided to you have that type of language, but I --

   	JUDGE DALZELL:  Let's put some flesh on it because
   it, in terms of what the Government's position is because I
   share Chief Judge Sloviter's befuddlement on this point.

   	JUDGE SLOVITER:  I'm not sure I would describe
   myself -- 

   	JUDGE DALZELL:  Well, all right, then I will
   describe it for myself as that.


   	JUDGE DALZELL:  I asked counsel on the other side
   about the Merrill Hansen decision, okay?  If the Merrill
   Hansen dialogue between those two disc-jockeys about Jim
   Baker's alleged rape of Jessica Hahn, if that had taken place
   on the Internet, okay, would that be indecent under the CDA
   and therefore subject those two gentlemen plus the station to
   criminal sanctions?

   	MR. COPPOLINO:  I think if you -- I re-read the case
   after you had referenced it and I think that is probably the
   hardest case, I've read all of the FCC materials that you had
   talked about because it was obviously a very explicit
   description, but then they stopped and said hey, this is
   serious, this woman was being raped.

   	And I would say to the Court that in the broadcast
   context, as I think we've made clear, the standard is much
   less tolerant.  Judge Sloviter explained this in a fabulous
   case, in that context you're going to get away with an awful
   lot less and your First Amendment freedoms are more limited.

   	So I don't think I can say that that discussion
   would necessarily be indecent, although prior to the point
   where they got to, hey, wait a minute, maybe we shouldn't be
   making jokes about this, this is a serious situation, it was
   a fairly explicit discussion.

   	But I'd like to make this point to the Court in
   respect to the FCC adjudication because I think that is
   helpful in trying to understand the standard.  Even in the
   area of broadcast where First Amendment freedoms are most
   limited and where there is the least tolerance, I think that
   the FCC decisions reflect a very serious intent to limit the
   indecency standard to patently offensive and shocking
   materials that are taken, for example, out of context.

   	JUDGE DALZELL:  But that's why I'm concerned about
   the Hansen case.  We have 94 U.S. Attorneys, I think, at
   least 94 cause there's 94 districts, okay, that at least one
   of them or one of your colleagues in Washington such as the
   gentleman who was in recent contact with Compuserve will look
   at Hansen or the language of this and say let's convene a
   Grand Jury.

   	Now, you know, if a party hears the words Grand Jury
   convened about me, it will really ruin their day, wouldn't
   you agree?

   	MR. COPPOLINO:  Yes, I --

   	JUDGE DALZELL:  So that the fact that a jury later
   on, that a jury later on will say oh, acquitted, that's not a
   lot of comfort, is it?

   	MR. COPPOLINO:  Your Honor, I think that we cannot
   provide assurance that there might not be a prosecutor that's
   going to take the most absurd case or very extreme case and I
   think that in assessing --

   	JUDGE DALZELL:  Is this an absurd case?


   	JUDGE DALZELL:  Hansen, I mean, this is the Federal
   Communications Commission did this.  Did they do an absurd

   	MR. COPPOLINO:  I indicated just a moment ago that I
   felt that the standard would be tighter in the broadcast
   context and that in many other cases that they have decided
   in the broadcast context it is very clear that they are
   focusing on patently offensive stuff taken out of context.

   	But to answer your question, in the context of the
   facial challenge I think the Court has to construe the
   indecency standard in a manner consistent with how it's been
   applied by the Congress and the courts.  That's not to say
   that there aren't going to be hard cases.  Those hard cases
   should not take the whole statute down, they should simply be
   left for admittedly a difficult as applied challenge.

   	But we can show, I believe it's fair to say, that
   the indecency standard as it has been applied and construed
   covers a fairly narrow category of speech.

   	JUDGE SLOVITER:  I still don't understand whether
   that narrow category of speech covers work that some people
   would consider to be of value.  Take, for example, the play
   that was in two parts on Broadway about AIDS.

   	JUDGE DALZELL:  Lost in America?

   	JUDGE SLOVITER:  The two --

   	JUDGE DALZELL:  Angels in America.

   	JUDGE SLOVITER:  Angels in America.  Now, a lot of
   people might be offended by that -- leave aside Shakespeare
   and leave aside Chaucer which we know from the book content
   and leave aside "Catcher In The Rye" which we know from the
   print media are considered offensive in some media and go to
   a more contemporary type of literature that some people would
   think is serious and some people would think is

   	If that were printed in, you know, print on the
   Internet, Mr. -- Pittsburgh Library --

   	JUDGE DALZELL:  Dunninberger (ph.).

   	JUDGE SLOVITER:  Yeah, would that be covered or
   would there be a built-in non-specified defense that says
   this is a serious work?

   	MR. COPPOLINO:  Two points, your Honor.


   	MR. COPPOLINO:  Our point is that yes, material that
   might be found indecent might also be considered to have
   serious value.  The plaintiff's position seems to be is that
   indecency covers all works that have serious value and that's
   where really we are disagreeing.  We -- because I don't
   believe that's necessarily the case as you parse the
   standards in the obscenity and indecency area that you have
   to conclude, as they have, that indecency necessarily
   includes serious material and necessarily excludes material
   that has prurient appeal.  That's where our disagreement is.

   	The answer to your question is yes, it's possible
   that something that is serious in some way could be indecent. 
   Our point with respect to the --

   	JUDGE SLOVITER:  And it certainly deals with sexual,
   I saw half of it, sexual or excretory activities or organs.

   	MR. COPPOLINO:  Yes, but our point with respect to
   plaintiff's materials, first of all, is that what they have
   presented in context in its full context is -- is serious
   material that ought not to be found and should not be found
   indecent.  And I have to say to your Honor that if you're
   just going to talk about a play on AIDS, the whole play in
   context, it has serious value.

   	If you're going to talk about, as in one of the FCC
   cases, taking specific stuff out and putting that out there
   and making it available, then the context is completely
   changed.  So it's very difficult to answer the question well,
   is all serious -- is all serious work covered by the
   indecency standard.

   	JUDGE SLOVITER:  But that's not the question.  That
   may be their question, but that's not my question.  My
   question is does the -- and we're not bound by anything that
   the plaintiffs say, that may also be extreme.

   	My question is simply as a matter of notifica-- one
   is a matter of the First Amendment and two is a matter of
   notification because it's a criminal statute.  To the world
   out there what does this statute read or reasonably read  to
   those people so that if somebody wants to send somebody else
   a paragraph or a scene from a contemporary play, is that
   person and the other person is 17, is that covered by the
   statute?  And I still don't have a yes or a no from you.

   	MR. COPPOLINO:  Well, the problem is I don't know
   that I can say yes or no to a categorical question that is
   serious material covered because the application of the
   indecency standard depends on the specific communication and
   its context.

   	I got in -- we kind of got into this thicket for two
   reasons: one is they're coming in saying that anything having
   to do with sex, whether it's a reference in Bible, the Bible
   or Shakespeare, breast cancer, breast feeding, so on--

   	JUDGE SLOVITER:  Leave them out of it and just --

   	MR. COPPOLINO:  Fine, okay.

   	JUDGE SLOVITER:  -- talk to the three of us at this

   	MR. COPPOLINO:  I think the material --

   	JUDGE SLOVITER:  And the three of us want to -- I
   think the three of us want to know how broadly this statute

   	MR. COPPOLINO:  Then our position would be  that the
   statute should apply to non-obscene patently offensive
   material, sexual -- concerning sexual and excretory
   activities of the nature that Congress has indicated that it
   is targeting, namely the sexually explicit sites on the
   Internet and of the nature that Congress has targeted and the
   courts have recognized in other cases such as Dial-A-Porn and
   the Act Two -- the Act Three in the Alliance case, materials
   of that nature.  

   	Clearly, your Honor, I think it's fair to say that
   the target of the indecency standard has been materials with
   very little value, with significantly little, with
   significant or --

   	JUDGE DALZELL:  But who determines that, the 94 U.S.

   	MR. COPPOLINO:  I think it starts in the first
   instance and in the face of a vagueness challenge here with
   the Court construing the standard as it has been applied by
   Congress and as it has been reasonably applied by the Courts
   who have considered similar cases.

   	JUDGE SLOVITER:  But they're not criminal, by and

   	MR. COPPOLINO:  Well, by and large.  The Dial-A-Porn
   statute is a criminal statute with a regulatory overlay but,
   yes, they are predominately not criminal.  But I think that
   again I would start with the point that this is not a
   completely open-ended standard, there are parameters here. 
   First of all, you have to have sexual or excretory activities
   or organs.  That's minimum that has to be in the

   	JUDGE SLOVITER:  Even though A doesn't so state?

   	MR. COPPOLINO:  Well, yes, I understand.  Well, I
   understand that, your Honor, but there's nothing --

   	JUDGE SLOVITER:  I mean you're asking us to be the
   activist Judges that Congress ex-- that some members of
   Congress excoriate because you're asking us really, Mr.
   Coppolino, to rewrite the statute.

   	MR. COPPOLINO:  Well, I --

   	JUDGE SLOVITER:  To put words into the statute that
   aren't there.  And at least I want to know clearly what words
   you think we ought to put in and your brief suggests, for
   example, we should put in prurient, you know, that --
   commercial, the kind of -- that it's really intended to hit
   what already is being hit.  And what I'm trying to find out
   is what more is in this statute than in, already in 18 USC.

   	MR. COPPOLINO:  Right, your Honor, I --

   	JUDGE SLOVITER:  And I know your position is
   difficult, especially when I come at you like -- when all
   three of us come at you like that, but -- but we really want
   to understand.

   	MR. COPPOLINO:  And I understand and I'm not --

   	JUDGE SLOVITER:  And we know it comes like you say
   with the overlay of constitutionality and Congress has sorted
   out, we know all that.  And you know it's very rare that we
   declare a statute unconstitutional.

   	MR. COPPOLINO:  You don't have to rewrite the
   statute, you don't have to be activist Federal Judges
   legislating and I'm not asking you to do that.  With respect
   to the indecency standard, I think that's a fairly simple
   task of statutory construction to say that the word indecent
   means what every court that has considered an indecency
   challenge has understood it to mean.  That's our view, at
   least, that it's fairly simple to do that.

   	With respect to the over-breadth issue, the over-
   breadth issue goes to whether or not the statute, the
   statute's potentially unconstitutional applications are
   substantial in comparison to its plainly legitimate sweep.

   	Our point on that is that it's plainly legitimate
   sweep -- 

   	JUDGE SLOVITER:  Is what?

   	MR. COPPOLINO:  Is enormous and is very substantial
   and substantially outweighs what might be considered to be
   potential problem areas, due to potential problem areas.  And
   let me --

   	JUDGE SLOVITER:  What is its plainly legitimate
   sweep that is not already covered by the two provisions in 18

   	MR. COPPOLINO:  Your Honor, the plainly legitimate
   sweep is --

   	JUDGE SLOVITER:  That is not already covered.

   	MR. COPPOLINO:  Yes.  18 USC does not cover indecent
   materials, it covers obscenity and child pornography.  And
   this statute extends that to materials that would fall within
   the indecency standard.

   	JUDGE SLOVITER:  And what is indecent?

   	MR. COPPOLINO:  Well, your Honor, let me go back to
   the point and try to explain it this way because --

   	JUDGE SLOVITER:  And not only what is indecent,
   where does it have to be viewed as indecent, in other words,
   in what community?  Would you take those two questions --

   	MR. COPPOLINO:  Yeah, I think I can deal with that
   one first.  There's no in-- I mean I think that the indecency
   standard is a standard that will be judged on a community
   basis and I think that that --

   	JUDGE SLOVITER:  What community, you mean local

   	MR. COPPOLINO:  Well, yeah, where the communication
   is at issue.

   	JUDGE DALZELL:  Where the communication what?

   	MR. COPPOLINO:  Is at issue.

   	JUDGE SLOVITER:  Now, is that not a problem when
   you're dealing with something that comes across the entire
   United States?  Leave aside the rest of the world, I
   understand your position that you can only deal with what's
   here and, you know, let's not worry about what's there, you
   know, that's true, I don't have to worry about what they're
   singing in Paris.

   	But the United States is so diverse, what goes in
   Philadelphia, as cosmopolitan as Philadelphia is, may not 
   go-- where are you from?  -- Lancaster.

   	JUDGE DALZELL:  Lancaster.

   	JUDGE SLOVITER:  May not go --


   	JUDGE BUCKWALTER:  For the record, that's spelled 

   	JUDGE SLOVITER:  Well, seriously, so what -- and are
   we on the same -- and we're all in the same district, in the
   same Eastern District no less.  What -- and Lancaster is
   where the Amish are?


   	JUDGE SLOVITER:  And "Witness" and --

   	JUDGE BUCKWALTER:  And Mennonites.

   	JUDGE SLOVITER:  Mennonites.  What -- and I know
   we're taking your time, we're going to give you time to

   	MR. COPPOLINO:  No, that's fine, I want to answer
   your questions.

   	JUDGE SLOVITER:  What community is it when somebody
   sends something over the Chat News that I could access,
   assuming I knew how, and that he could access?

   	MR. COPPOLINO:  The answer, I think, to the question
   is, it is a problem if you construe the indecency standards
   as the way plaintiffs have, that someone might be offended,
   for example, by a serious discussion of prison rape or safe

   	But if the indecency standard is properly understood
   to be applicable to the types of materials Congress has
   intended to cover, then the disagreements between communities
   are going to be at the margins.  Some communities like New
   York, for example, will consider the movie, "Deep Throat,"
   not to be obscene but merely indecent.  Philadelphia or
   Lancaster may have a different view of that.

   	JUDGE SLOVITER:  No, Philadelphia would be with New
   York but Lancaster would --

   	JUDGE BUCKWALTER:  Would not.

   	JUDGE SLOVITER:  -- might be somewhere else.

   	MR. COPPOLINO:  I recognize that, your Honor, but
   first of all we're in the ballpark of that kind of material
   in --

   	JUDGE DALZELL:  Well, wait a minute now.  You just
   say we're in the ballpark.  One of the amici put before us a
   Web site of the University of California that has an exhibit
   of the University of California that has an exhibit of Edward
   Weston and Robert Maplethorpe photographs and it has two
   examples of those photographs.  The Maplethorpe photograph is
   the depiction of a man with an erect penis, okay, and that's
   the subject of that photograph, quite obvious.

   	Now, we don't have to speculate.  We know in
   Philadelphia, because that's where the show started, the
   Maplethorpe show was a big hit at the Institute for
   Contemporary Art but when it went to Cincinnati, in that
   community people were very upset by it.

   	Now, is the University of California at Riverside, I
   think it was, who has that on its site, is the University of
   California at Riverside subject to prosecution under the CDA
   in Cincinnati?

   	JUDGE BUCKWALTER:  There's no indication, your
   Honor, that the standard is simply going to be that you're
   subject to prosecution where your site is.  So I'd like to be
   able to tell you that they're not exposed to liability where
   that material can be downloaded, but what I want to come back
   to you though and in connection with the Maplethorpe example
   is that again you have -- you have steered me to now two very
   tough cases which I would suggest to the Court not be the
   cases which bring the statute down on a facial basis.

   	It is conceivable that that Maplethorpe picture of a
   man with an erect penis might in some communities, in
   Lancaster or in other communities it might be considered more
   conservative, might be a problem because it is certainly a
   depiction of a sexual organ, we can agree to that.

   	JUDGE DALZELL:  It fits the literal definition, we
   don't have to speculate.  We know in Cincinnati that in that
   community they find that a patently offensive depiction of a
   sexual organ, so it is verbatim in D.  So the U.S. Attorney
   for the Southern District of Ohio indicts the University of
   California at Riverside?

   	MR. COPPOLINO:  Well, big, big leap there, your
   Honor.  I mean this is the statute which just doesn't say if
   you have this communication or this image on your -- on your
   Internet you have no -- you have no defenses.

   	The point I would make is that --

   	JUDGE BUCKWALTER:  No, no, no, no, but he's saying,
   he didn't say it about defenses though, but do they indict?
   That's what he was saying.

   	MR. COPPOLINO:  The point I was going to make --

   	JUDGE BUCKWALTER:  And isn't the answer yes?

   	MR. COPPOLINO:  No, no, I don't think the answer's
   yes.  I think the point is that if you're going to have an
   image like that in your site, and we're getting closest to
   the line perhaps without going across the line to materials
   that aren't serious or do appeal to the prurient interest,
   but if you're going to have an image like that on your site
   and there is some risk, then there are steps that are
   available to you to ensure that there may not be access by
   minors because of the fact that there is possibility that
   that might be found to be indecent.

   	But this is the hardest case and I again would
   suggest that --

   	JUDGE SLOVITER:  But we could give you, I mean I
   would imagine we could give you lots of hard cases.  In other
   words, we picked two but we don't have all day to stay here. 
   I asked a witness, if you recall, what about the Indian
   statues, statues of, you know, copulating, loads of different
   methods of copulation.  And we didn't have a chance to ask
   you --         

   	MR. COPPOLINO:  Sure.

   	JUDGE SLOVITER:  -- in those contexts.

   	MR. COPPOLINO:  But that is where, that is I think
   where we suggest to the Court that a fair, reasonable and
   appropriate and narrow, if you will, construction that does
   not involve being activists or re-writing the legislation is
   to -- is to recognize that the indecency standard as Congress
   has intended to apply it in this case, if properly applied to
   the types of materials that are, that have been described in
   the Congressional record and that we have put forward with
   Mr. Schmidt's materials because I think it's very clear to
   say, I think it's very fair to say that those are the
   materials that Congress had in mind.

   	Now --

   	JUDGE SLOVITER:  Mr. Schmidt's materials are, I
   would think, almost exclusively materials that are

   	MR. COPPOLINO:  I wouldn't disagree with that.

   	JUDGE SLOVITER:  Or obscene.

   	JUDGE DALZELL:  Obscene.

   	JUDGE SLOVITER:  Obscene.

   	MR. COPPOLINO:  I do disagree with that, but I agree
   they're pornographic, I don't --

   	JUDGE SLOVITER:  Well, I would think they were

   	MR. COPPOLINO:  Can I address that?

   	JUDGE DALZELL:  Well, some were obscene for certain.

   	I mean I know it when I see it, just like Justice


   	MR. COPPOLINO:  I did that, I -- but can I just
   address this point?  I certainly wanted to provide you
   examples of a range of materials that are out there and we by
   no means went to the far reaches of the extreme of what's
   easily available to you on the Internet, but we did provide
   somewhat of a range precisely because in some communities
   they may not be obscene and I wanted the Court to see
   examples of what those might be, given the fact --

   	JUDGE SLOVITER:  I can't imagine that community.

   	JUDGE DALZELL:  But, Mr. Coppolino, the point is in
   a case where you have an over-breadth challenge to a statute,
   it seems to me that to come back to my Maplethorpe example --
   the reason I keep coming back to Maplethorpe is we don't have
   to hypothesize anything about Maplethorpe.  We know for a
   fact how Mr. Maplethorpe's photographs are received in
   different communities, okay?

   	And you're the lawyer for the University of
   California.  Does the University of California at Riverside's
   gallery have to come to you and get an opinion and say Tony,
   we've got these photographs of Weston and Maplethorpe and we
   happen to think they're great, but are we going to get
   prosecuted in Cincinnati if we put this on here?  What would
   you tell him?

   	MR. COPPOLINO:  Am I the Justice Department or their

   	JUDGE DALZELL:  No, you're the lawyer for the
   University of California at Riverside.  What would you tell

   	MR. COPPOLINO:   I would tell them you shouldn't
   because as the --

   	JUDGE DALZELL:  You should not put that on there?

   	MR. COPPOLINO:  No, you should not be prosecuted
   under the indecency standard because Congress has construed
   that, has applied and construed that standard in a fairly
   specific way.

   	However, if you are concerned there are things that
   you can do to protect access by  minors to that site. 


   	MR. COPPOLINO:  Well -- 

   	JUDGE DALZELL:  Because we were told that those
   images -- we were -- you know, but we were told by your
   expert that images that he knew of no technology to block
   images.  He could block words, but not images.  And that's
   why I keep coming back to the Maplethorpe example because
   they're images.

   	MR. COPPOLINO:  Well, your Honor, you can block --
   you can block a file, certainly, you can block a site, we've
   seen that.  You can block a file and you can have the image
   attached to the file and if the file is blocked, I believe
   the image would be blocked as well.

   	I don't think it's correct to say that images can't
   be, if images couldn't be blocked, America On Line's Parental
   Controls would not work and they specifically attempt to
   block down binary downloads.

   	JUDGE SLOVITER:  Isn't the issue though one of
   chill?  In other words, if you're dealing with a First
   Amendment challenge and the university says oh, who wants to
   bother, who wants a lawsuit, who wants to have to come up
   with a defense, it's not worth it.  We're not making money
   out of this, this is something that we're doing.  And isn't
   that a concern when we're dealing with a criminal statute?  I
   keep coming back to the criminal statute because people are
   supposed to know, at least I was taught in law school and 17
   years on this court I've been taking the position that people
   are entitled to know what it is they may be prosecuted for.

   	And if these not insubstantial number of cases are
   at the edge and they have to keep running to their lawyers
   and saying where do you think this falls in a statute that
   doesn't say specifically the things that Mr. Coppolino who's
   nice but he now works for the university making more money,
   and so I don't know who's going to construe the statute,
   doesn't that present a problem and how do we deal with it?

   	MR. COPPOLINO:  The answer is, your Honor, again
   that there are parameters to the standard and this Court
   certainly can go a long way towards reducing the potential
   chill by construing the statute in a manner in which Congress
   has intended it to apply and in a manner in which the Courts
   have recognized that it has been applied.

   	Again, it is sexual and excretory activities that
   are patently offensive.  Now, we recognize with the --

   	JUDGE SLOVITER:  We don't know where, either,
   patently offensive.

   	MR. COPPOLINO:  We recognize that there's always the
   potential risk in some cases in a criminal statute with some
   hypothetical, but there has to be an expectation that the
   Government is going to apply the standard in the manner in
   which it is clearly intended to be applied and in a manner in
   which the courts have said can constitutionally be applied
   and we certainly are not asking the Court to re-write it, but
   to take this standard as it has been intended.

   	And there is one point I would like to make about
   this because I think my argument is not complete unless I
   make it.  The point that I've tried to make is that the
   plaintiffs construe what we have submitted as pornography,
   which I think is a fair characterization, but what I disagree
   with is that because that material appeals to the prurient
   interest and arguably has no serious value, it is necessarily
   obscene.  That is a legal determination and I think that that
   analysis is simply wrong.

   	To be obscene under the Miller test, you have to
   satisfy all three standards or obscenity.  And therefore it's
   conceivable that something could appeal to the prurient
   interest as these materials do but not be considered patently
   offensive or in some communities might have serious literary
   or artistic value and therefore would not be indecent, would
   not be obscene.

   	And the reason that this is important is that
   material that is obscene, as you know, is not legal, it can
   be banned entirely.  It is a very -- and therefore it is a
   very narrow category of speech and I think that Justice
   Scalia's observation in Sable is that the more narrow that
   category of speech of obscenity is, the more Congress needs
   to sweep into this, into the indecency standard this type of
   stuff, the kind of stuff in the Schmidt notebook.

   	Because if it just simply said let's limit the
   statute to obscenity, well, then a lot of that material is
   not going to be obscene in many communities and it would be
   freely available and the protection of minors, which is the
   Government's compelling interest, would not be served.

   	And this is clearly the case in a number of statutes
   in which Congress has tried to use the indecency standard

   	JUDGE SLOVITER:  Well, you're distinguishing between
   pornographic and obscenity, are you making a distinction

   	MR. COPPOLINO:  Well, yes.

   	JUDGE SLOVITER:  They're not challenging, as I
   understand it they're not challenging the application of the
   statute to that which is obscene, everybody agrees to that,
   or that which is pornographic.  I thought I saw that.

   	MR. COPPOLINO:  No, I'm afraid  that with
   pornographic, your Honor, we get into a subjective term, as
   Mr. Hansen -- as Mr. Hansen nicely lectured me at the TRO
   hearing, as you can -- as you might remember, your Honor --
   pornography is not a legal term.

   	Now, I can accept the colloquial characterization of
   pornography is appealing to the prurient interest and lacking
   serious value, but I do not accept the conclusion that that
   is necessarily obscene.

   	I think a Playboy centerfold appeals to the prurient
   interest, might have some artistic value to some, clearly it
   appeals to the prurient interest.  I doubt it's --I doubt
   it's obscene.  And I think that our laws clearly reflect that
   understanding, that common sense understanding of where a
   line is between obscenity and indecency.

   	Obscenity is the hardcore and what is hardcore is
   going to vary in communities and at least one Circuit Court
   in the Second Circuit thought "Deep Throat" wasn't hard core
   enough to render an obscenity characterization.  And that is
   enough for Congress to say in order to effectively protect
   minors, to serve our compelling interests, we'd better use
   this indecency standard or a lot of bad stuff is going to get

   	But it doesn't mean that safe sex information which
   they have presented which is in context, very serious and
   important information, is indecent.  It doesn't mean that
   ACLU's briefs on the Pacifica case or the Cohen case are
   indecent because they discuss an area having to do with a
   dirty word.

   	JUDGE SLOVITER:  What about the statutory history of
   the statute, what were the exceptions that Congress, the
   conference committee or Congress rejected?

   	MR. COPPOLINO:  The harm to minors, I think, is what
   the Court is referring to.

   	JUDGE SLOVITER:  Was that Representative Berman's

   	MR. COPPOLINO:  Well, harm to minors, your Honor, is
   a separate standard and the plaintiff's argument seems to be
   that Congress, if it wanted to regulate pornography, should
   have used a harm to minors standard because that's been used
   by the states to set up display while --

   	JUDGE DALZELL:  No, it's more than that because
   Congress specifically rejected that, that therefore it's a --
   there is the breadth is necessarily wider since Congress was
   given the opportunity to take it and elected not to,
   specifically elected not to.

   	MR. COPPOLINO:  In harm to minors, and harm to
   minors is a variable obscenity standard.  It is -- it is
   material that is not obscene as to adults but obscene as to
   minors, which means it has to satisfy the three standards of
   Miller as to minors.  It must be -- appeal to the prurient
   interest of minors, must be patently offensive depictions
   about sexual or excretory activities, it must have no serious
   literary value, as to minors it is, I concede, a narrower
   standard but a Congress -- but that does not mean by reverse
   implication that the indecency standard therefore doesn't
   include anything that is -- that -- anything that appeals 
   to --

   	JUDGE DALZELL:  Yeah, but don't you think that that
   precludes, to get at what Chief Judge Sloviter has been
   trying to get at for 40 minutes now --

   	JUDGE SLOVITER:  Have I been?

   	JUDGE DALZELL:  -- doesn't that -- doesn't that rule
   out for us, unless we be accused of being activist Federal
   Judges, that how could we engraft a harmful to minors test
   when Congress specifically rejected it?

   	MR. COPPOLINO:  I am not asking you to engraft a
   harmful to minors test and I can tell you the way that I
   think you can do it.

   	JUDGE DALZELL:  Okay, you're not.

   	JUDGE BUCKWALTER:  No, mm-hmm.

   	MR. COPPOLINO:  I think you can, you can, first of
   all, cite the authority to which Congress has applied the
   indecency standard and recognize that that standard has been
   applied to materials that are comparable to the types of
   materials that we believe are primarily at issue in this
   case.  And I refer you to, for example, the materials at
   issue in Dial-A-Porn which I think very few would
   characterize as --

   	JUDGE DALZELL:  Yeah, but you know in the Sable case
   Professor Tribe (ph.) was representing Sable and he argued to
   the Court, well, you know, this is a community standard and,
   you know, how in the -- the telephone, we have to go
   community to community and the Supreme Court said well, you
   know, that's your burden, okay?  And it's okay to say to a
   commercial provider whose only business is Dial-A-Porn,
   that's your burden.

   	Isn't it quite another matter to say to the
   University of California at Riverside or to Mr. Kuromiya
   sitting over there that they all have to go running to First
   Amendment lawyers to determine whether what they're putting
   on the Internet passes community standards from Brainerd,
   Minnesota to Cincinnati to Philadelphia to San Francisco?

   	MR. COPPOLINO:  I think it's a fair question, your
   Honor, but I think the question goes to something other than
   the indecency standard.  I would suggest it goes more to the
   issue of the least restrictive means or the over-breadth of
   the statute as opposed to the standard because I think that
   however -- wherever you apply a standard to, you have to have
   a standard.  You have to try to define what it is you're
   trying to target.  And my point to the Court is that you can
   recognize that the indecency standard applies to a very
   narrow category of speech.

   	The second inquiry would be does the act as a whole
   sweep too broadly in its reach to commercial versus non-
   commercial sites, Web sites versus USNet versus Chat Rooms. 
   But I would regard those as separate issues.  I think if you
   struck down the statute simply on the basis that the
   indecency standard was too vague and no court that has had a
   vagueness challenge has found it to be vague.  And they
   haven't really, really specified this point about commercial,
   non-commercial, they simply said we think this is -- this is
   clear enough for what has been applied to here by Congress.  

   	If it sweeps too broadly, I think those are issues
   more of least restrictive alternative and over-breadth which
   I'd be willing, I'd like to address and --

   	JUDGE DALZELL:  But the Dial-A-Porn --

   	JUDGE SLOVITER:  You can -- no, go ahead, go ahead.

   	JUDGE DALZELL:  The Dial-A-Porn cases, and we all
   agree that Congress reached into Pacifica, reached into Sable
   and begot the CDA.  We all agree also, do we not, that Dial-
   A-Porn is all porn because that's what they call it.  That's
   the only content on Dial-A-Porn is porn.  Now, whether it's
   obscene or not is another matter.  There's only one type of

   	What our friends over here represent are 46 players,
   by my count, representing God knows how many individuals
   within their organizations and I'm sure you would agree with
   me, Mr. Coppolino, that not one of those plaintiffs is in the
   pornography business.

   	MR. COPPOLINO:  Not one of them is in the
   pornography and therefore in our view not one of them falls
   within the plainly legitimate sweep of this statute and I
   think you can find that. 

   	Now, whether or not the indecency standard can be
   construed to apply to all of their serious, political or
   scientific or educational speech, ACLU, human rights watch,
   safe sex and so on, I don't think you have to.  And my
   authority for that is to direct the Court's attention, number
   one, to what Congress has intended to apply the statute to
   and, number two, to authority applying the indecency

   	You're absolutely correct, the indecency standard
   was applied to Dial-A-Porn, which is Exhibit No. 1, to show
   that indecency can be applied to porn, to materials that
   appeal to the prurient interest.  It doesn't have to be-- it
   doesn't have to be obscene and that I think is a very
   important conclusion because the Court can therefore say
   okay, I can -- the indecency standard can survive a vagueness
   challenge that the plaintiffs are making that this has to be
   cabined into the obscenity area for the reasons that Judge
   Scalia said in Sable.  If you throw it into the obscenity
   area, an awful lot of this patently offensive, sexually
   explicit material is going to fall out, it's not going to be
   obscene, it's not going to be completely illegal and
   therefore it's going to be available to minors without any

   	But I think your question does go more to the over-
   breadth and the least restrictive means and let me deal with
   the over-breadth because I think it can be dealt with fairly

   	There are two facial challenges.  One is it has to
   be invalid in every application and I think we show that's
   clearly not the case.

   	JUDGE SLOVITER:  Well, a substantial number?

   	MR. COPPOLINO:  No, there's two, there's two tests
   really.  One is, is it invalid in every application, answer
   no, I think you can -- you don't have to pause on that one.

   	JUDGE DALZELL:  And the other is substantial over-

   	MR. COPPOLINO:  Substantial over-breadth again goes
   to the question of whether or not the potentially
   unconstitutional impermissible applications are substantial
   in comparison to the statute's plainly legitimate sweep.  And
   they first, I think, bootstrap back in their indecency
   argument, that if indecency covers so much, it's over-broad,
   separate argument.

   	The second point they make is, which is really the
   over-breadth point, is that the statute regulates more
   broadly than Web sites and more broadly than commercial Web
   sites and it goes to non-commercial speech and other types of
   speech.  Therefore, it's substantially over-broad.

   	But I don't think you can reach that conclusion that
   it's substantially over-broad that easily and I don't think 
   you can reach it at all.  The first point we would make to
   the Court is that we have presented evidence, a small sample
   but nonetheless a lot of evidence that there are -- that
   there is an enormous amount of material out there, a vast
   amount of material to which the statute can constitutionally
   apply.  And that is the type of material in Mr. Schmidt's
   notebook --

   	JUDGE SLOVITER:  Yeah, but if we think that that 
   is-- suppose we don't agree with you and we think that that
   is obscene.  What would follow from -- I gather that you
   think that some of it is not obscene, I'd like to see those
   portions of it, maybe those are the few that I would look at.

   	But leaving that -- leaving -- 

   	JUDGE DALZELL:  "Chip's Erotic Tunes," probably.

   	JUDGE SLOVITER:  Well, when we looked at it, we
   thought and we had a motion from the plaintiffs that say
   that's irrelevant because that's -- that's all obscene.  And
   we let it in but that doesn't mean that we found that it was
   not essentially obscene.

   	MR. COPPOLINO:  Well, I don't think you have to find
   one way or the other that it's obscene or indecent and I
   don't think you should because this is a -- this is a
   standard, the line between what types of pornography are
   obscene and indecent is going to vary.  But I think it's very
   clear under the law that what is obscene is extremely narrow
   and if you were to decide that everything in the Schmidt
   notebook, everything that Surfwatch blocks is obscene, well,
   I don't think I'm going to win on the substantial over-
   breadth argument because the substantial over-breadth
   argument does make the point that this material can be
   covered and should be covered by the indecency standard
   because what is obscene is far too narrow and therefore,
   therefore the statute does have a broad, plainly legitimate
   sweep because these materials are properly within the scope
   of the indecency standard.  It is a major problem that
   Congress sought to address and you don't have to re-write the
   statute to reach this conclusion, you can see that the
   materials are there, you can see that the statute can reach

   	And let me just make my point on the credit card
   defense.  You can see that the credit card and access code
   defense is readily available to those types of providers, no
   re-writing required.

   	JUDGE SLOVITER:  You'll agree that all of those
   materials in the Schmidt notebook, I think now called the
   Coppolino note --

   	MR. COPPOLINO:  Oh, let's call it the Schmidt

   	JUDGE SLOVITER:  -- notebook were designed to appeal
   to the prurient interests of the viewer?

   	MR. COPPOLINO:  Do I think that?

   	THE COURT:  Yeah.

   	MR. COPPOLINO:  Yes, I would say that they would but
   they don't, that doesn't mean they're obscene, your Honor and
   that's the point.

   	JUDGE SLOVITER:  All right, well, whether or not
   they are, you would agree that that classification of
   material is designed to appeal to prurient interests?

   	MR. COPPOLINO:  Yeah, but let me backtrack a half a
   step and say that there are some of those images that some
   might consider just artistic and that wouldn't, that wouldn't
   find them pruriently appealing.  Very few, I would hasten to
   add, but there are some mild nudes and centerfold type images
   which are not as explicit as others.

   	JUDGE SLOVITER:  all right.  But most of them were
   very explicit?

   	MR. COPPOLINO:  Yes, your Honor, but the point I'm--

   	JUDGE SLOVITER:  Is that right?  Now, what is the
   other area of the substantial so-called indecency material
   that would come within the statute that is not of a serious,
   that has no serious value?

   	MR. COPPOLINO:  Well, I think the best examples I
   can give the Court in that regard, the non-pornographic but
   yet indecent materials would be of the nature of the kinds of
   things that, for example, the SEC has identified.  They do
   not go out and say --

   	JUDGE SLOVITER:  Such as?

   	MR. COPPOLINO:  Well, such as I put forward, I
   think, in the record three examples.  One was highly explicit
   excerpts from a play on AIDS.  It wasn't the whole play, it
   wasn't the subject matter, it was just those experts.  FCC
   said we're not penalizing you for discussing AIDS, we are--
   we are -- we do think these specific excerpts are indecent in
   its text and it's obviously not necessarily pornographic but
   let me make --

   	JUDGE SLOVITER:  Wait a minute, wait a minute, let's
   take that one.

   	MR. COPPOLINO:  Mm-hmm.

   	JUDGE SLOVITER:  So what you're saying is that even
   though the play itself, the work itself could be viewed as 
   a-- and I don't remember what the work was -- but as a
   serious literary work dealing with AIDS if excerpts of it are
   patently offensive in some communities, then those excerpts,
   at least, would fall within the statute?

   	MR. COPPOLINO:  They might, your Honor, but I have
   to say I don't think that's a terribly startling conclusion
   because I think that the indecency standard makes clear that
   if you do take stuff that is in the context of the
   communication at issue is patently offensive, it can be
   indecent.  And in this instance material is taken out of
   context, out of its serious value and simply put out there.

   	JUDGE SLOVITER:  But wouldn't that cover almost all
   the plays on Broadway today?  I haven't, I don't go
   frequently, I --

   	MR. COPPOLINO:  I don't -- you -- that assumes a
   fact not in evidence that I know what's in those plays.

   	JUDGE SLOVITER:  But don't almost all plays and I
   gather from writer friends almost all books have to have a
   little bit of sexual activity in order to sell?  And does the
   fact that a portion of what is, even though not high
   redeeming value but the serious work has some material that
   you would call -- now, I know we're on your first category
   but I want to explore that.

   	MR. COPPOLINO:  Second category now, yeah.  Well,
   we're on the non-pornographic category, right.

   	JUDGE SLOVITER:  That's right.  That would -- that
   would subject, putting those on the Internet would subject
   the speaker to potential criminal sanctions cause it has a

   	MR. COPPOLINO:  No, I would say not, your Honor.  I
   would say --

   	JUDGE SLOVITER:  Well, that's what I'm trying to
   find out.

   	MR. COPPOLINO:  -- that if you -- if you -- there's
   been a lot of examples thrown about, "Catcher In The Rye,"
   which I read in high school, "Lady Chatterly's Lover," I
   would say that these works are serious literary artistic
   works which in context are not indecent and I have yet been
   cited a case which says that those are indecent under
   Congress' indecency standard.  They can show me some like--

   	JUDGE SLOVITER:  Yes, but isn't it true that --

   	JUDGE DALZELL:  But we know that in some communities
   they are.

   	MR. COPPOLINO:  No, I don't think we know that.  I
   think we know that --

   	JUDGE DALZELL:  Oh, sure, sure, we do.  "Lady
   Chatterly's Lover?"  My God, it went to the Supreme Court,
   that issue, didn't it?

   	MR. COPPOLINO:  But, your Honor, I think that --

   	JUDGE DALZELL:  On whether it was obscene.

   	MR. COPPOLINO:  The issue is whether or not this
   book in its entire context on the Internet is going to be
   legally indecent under this standard as Congress has applied
   it.  Whether the alternative is an obscenity standard where
   very little is going to be covered, I think the answer is
   that's not what Congress intended and that it would not and
   should not be found to be indecent.

   	JUDGE DALZELL:  Let me, if I may?

   	JUDGE SLOVITER:  Go ahead, yes, sure, I didn't mean
   to interrupt.

   	JUDGE DALZELL:  I asked our friends on the other
   side a number of questions about the medium and the
   significance of the medium.  Now -- and I think it's
   undisputed or indisputable that Congress reached out to the
   Pacifica case and you put tremendous weight on the Pacifica
   case and the Sable case and begot the CDA.

   	As I read your material and your position in this
   case, you say that Pacifica should not be limited just to
   broadcast because what really bothered the Supreme Court and
   permitted that to be upheld was the surprise element.  And
   that's why you took us through "Jasmine" and "Little Women."

   	Do I understand your position correctly, that that's
   why Pacifica, because you would agree this is not
   broadcasting we're dealing with here?

   	MR. COPPOLINO:  I do agree it's not broadcasting and
   I have left the Pacifica argument in just to make a point
   that as the Court applies the Sable standard, it considers
   the elements of pervasiveness and surprise that are -- that
   exist on the Internet.

   	I am not here arguing, after I read the Fabulous
   decision, that you've got to apply the Pacifica standard of
   review, Sable doesn't even apply.  I don't think that's a
   fair characterization of our position.

   	But -- and so Sable requires the Government has a
   compelling interest that the statute regulate least
   restrictively.  But I'm not going to abandon the lessons of
   Pacifica entirely as you apply Sable.

   	This is a highly pervasive medium.  You asked Mr.
   Hansen how does it compare, what would you compare it more
   to, print or broadcast.  It's a hard question but I think
   clearly you've got to compare it more to broadcast.  In my
   first exhibit --


   	MR. COPPOLINO:  Well, I would say Mr. Bradner, Mr.
   Bradner and others have made the point that this is a medium
   that for which other types of media area converging.  It's
   not just point and click and get a text, you get text, you
   get images, you can get video, you can get -- you can get a
   lot of other materials that are piped through to the home in
   a manner in which the differentiation between the media is

   	JUDGE SLOVITER:  Yeah, but isn't the key in
   broadcasting the fact that there are only limited number of--

   	MR. COPPOLINO:  Well, that's definitely a key, your

   	JUDGE DALZELL:  Frequencies.

   	JUDGE SLOVITER:  -- frequencies.

   	MR. COPPOLINO:  I think that's right, that's
   definitely our key but I think there what --

   	JUDGE SLOVITER:  Is that not -- isn't -- and
   therefore the Government has to regulate.

   	MR. COPPOLINO:  It's ap-- I think it's almost--

   	JUDGE SLOVITER:  Don't --

   	MR. COPPOLINO:  Okay.

   	JUDGE SLOVITER:  And here you don't have that kind
   of limitation and therefore governmental interest or
   involvement.  I just want to hear your response.

   	MR. COPPOLINO:  Well, the response to that is that
   yes, the limited number of entities on the broadcast spectrum
   is a key factor in Pacifica which I think led the Court to
   find that communication was indecent.

   	The point I'm trying to make is that there are other
   elements that can be derived from Pacifica such as
   pervasiveness and elements of surprise which can be applied
   here.  It's not a perfect analogy, but I don't think you can
   discount it entirely in this media.

   	JUDGE BUCKWALTER:  But even though there is no
   perfect analogy here, and, you know, I think you can get a
   list and you can put on one side and, you know, it's going to
   kind of balance out, I think.  But why does that matter? 
   Both parties seem to think the specific nature here matters. 
   Why does it matter?

   	MR. COPPOLINO:  I think it matters most directly in
   connection with the Government's compelling interest because
   if we can -- as we have demonstrated to the Court, this is a
   pervasive media, there's 12 million on line through
   commercial on-line services, millions more through ISP's,
   computers -- computers come right in --

   	JUDGE BUCKWALTER:  But I mean in the law and this,
   this is I'm asking you for your explanation of the law, why
   does it matter if we look at this more like broadcasting than
   if we look at it more like a newspaper?

   	MR. COPPOLINO:  Well, I think it matters more if you
   look at it more like broadcasting because I think that
   certainly there's less tolerance of indecency in

   	JUDGE BUCKWALTER:  Okay, as I just -- that's what I
   thought your answer would be and I wanted to understand your

   	JUDGE DALZELL:  But that's what I don't get.

   	MR. COPPOLINO:  So I'm trying to get you closer to
   that and then the newspapers.

   	JUDGE DALZELL:  In terms of pervasiveness and
   surprise, okay?  Let me give an example because it relates to
   this medium question that I've been pressing, okay?

   	I brought with me yesterday's Inquirer, okay?  Now,
   I'll tell you a little anecdote.

   	JUDGE SLOVITER:  The Philadelphia Inquirer, you
   might as well advertise it.

   	JUDGE DALZELL:  The Philadelphia Inquirer, right.


   	JUDGE DALZELL:  And I'll tell you a little anecdote,
   little anecdote, okay, in the Dalzell household.  My ten year
   old son within the class that Congress wants to protect, we
   know that.  My ten year old son is a rabid Phillies fan and
   the first thing he does in the morning when he comes down for
   his breakfast is he gets the Inquirer and he looks to see how
   the Phillies did.

   	So yesterday he looked and he saw that the Phils
   edged Astros' intent, but he also saw above the fold a
   Liberian prisoner faces death and that is to say one of the
   more grisly pictures I have ever seen above the fold of an
   unarmed man being shot to death while men in the background
   are laughing.

   	Now, let's assume that parents who shared the horror
   of my son at seeing this went to Congress and said this has
   got to stop, so let's pass a newspaper decency act that
   provides that any depiction of murder be shown below the
   fold.  It's a trivial intrusion, it costs nothing.   Do you
   have any doubt that that would be unconstitutional?

   	MR. COPPOLINO:  I have very few doubts that that
   would be unconstitutional.

   	JUDGE DALZELL:  So why would that minimal, that
   minimal intrusion on the editors of the Philadelphia Inquirer
   to prevent what I think most fair-minded people would say is
   the most indecent picture that they could imagine of one
   human being wantonly killing another defenseless human being,
   that that can't be moved to the bottom of the fold but that
   Congress has the power to control the access of a much more
   pervasive medium, the Internet?

   	MR. COPPOLINO:  A couple of points, your Honor. 
   First of all, indecent, yes, but not necessarily, but not
   indecent as this indecency standard means.  Indecency under
   the Communications Decency Act or in a number of these other
   acts in Dial-A-Porn does not mean serious material, not
   suitable for adults -- or for children like someone getting
   killed on the front page of the Philadelphia Inquirer.  It
   means, first of all, sexual or excretory activities.

   	For example, Mr. Ennis, I believe, cited an abortion
   case, a District Court decision where someone wanted to put
   on an ad about abortion and there was going to be a very
   graphic depiction of abortion.  And the District Court said
   hey, I think this is indecent and you have to channel it to
   past ten o'clock, FCC disagreed with that. 

   	FCC said you should channel it under a separate
   regulation but it's not indecent.  So that's my first point
   in response.

   	JUDGE DALZELL:  Yeah, but I don't think you're
   answering my question.  My question is since we agree with
   each other under Tornillo and other cases that Congress would
   not have the power to adopt a newspaper decency act which
   would merely require the Inquirer to put this same photo on
   the same page but below the fold so it has no cost, it's
   trivial, but that would still be unconstitutional.  What is
   it about the Internet medium that makes it a completely
   different ball game?

   	MR. COPPOLINO:  Well, I think -- I think one of the
   differences, we all know the print medium has the very
   broadest of First Amendment protections and I think the
   differences with the Internet media is that it allows for
   tremendously broad array of materials far beyond what would
   go into a newspaper to come right into the home and be easily
   available, not mere text, not even mere images but moving
   images as well and as technology advances you're going to see
   the speed with which the stuff can come down to your computer
   increase.  It is becoming television-like, I guess is the

   	JUDGE DALZELL:  But this happened instantly to my
   son on his way to finding out that the Phillies beat the
   Astros, instantly, total surprise, worse than finding
   "Jasmine" he sees this human being wantonly murdering an
   unarmed person who is pleading for his life.

   	MR. COPPOLINO:  I think the answer is the best I can
   think of at this point is that I think the answer is that the
   interactive computer services and home computers are becoming
   more entertainment and television-like in what they can put
   forward to children.

   	And I guess to change the analogy a little bit, if I
   may, your Honor, what I am putting at issue in this case and
   what I believe is at issue in the indecency standard are the
   types of materials that we have submitted and your son could
   not pick that up on his doorstep.

   	He couldn't go into a drugstore and buy Penthouse or
   PLayboy, I think you said he was ten years old, they can't
   tell that to minors.  He couldn't go into an adult book
   store, he couldn't go into an adult movie theater and he
   can't get that stuff.

   	So he can pick up a paper and see a very graphic
   picture of that, but he can't get our stuff -- this stuff as

   	JUDGE SLOVITER:  If he subscribed, I don't know if
   these are subscription magazines or anything, but if he
   subscribed, if his parents subscribed to them they'd come
   through the mail and Congress couldn't, could it, say that
   you can't let the child look in the centerfold?

   	MR. COPPOLINO:  No, Congress can't regulate every
   problem but it can regulate problems in some ways.  And what
   it has done is try to regulate this problem in a I think
   fairly described a least restrictive manner, certainly as
   with respect to the content providers because these, the
   content providers certainly for commercial sites because
   these folks can avail themselves of these very specific

   	JUDGE SLOVITER:  Isn't a key to your argument that a
   child, person under 18, could inadvertently come across some
   of this material?  I notice that you put a lot of focus on
   that evidence during the evidentiary portrayal.  Is that --
   and in your brief.  Is that inadvertence a key to your

   	MR. COPPOLINO:  Well, I'm not sure I would describe
   it as -- well, I certainly wouldn't describe it as the key or
   a key.  I think it's an important part of the argument to
   show to the Court, number one, that the Government has a
   compelling interest here and, number two, that this material
   is pervasive and you should take that into account.

   	JUDGE SLOVITER:  The Government's -- yeah, but let's
   go back.  What is the connection between the Government's
   interest and the what we'll call for this point inadvertence?

   	MR. COPPOLINO:  Well, here is the connection.  You
   can get this kind of material on the Internet by looking for
   it and I believe  the evidence shows you can get this kind of
   material when you're not looking for it.

   	Certainly you can get -- you can get right up to it. 
   And I think that the reason we put those searches in Mr.
   Schmidt's testimony, we put both kinds.  You're a 14 or 15
   year old, you're familiar with the ways of the world, you
   want to go out and find stuff you can't get in the drugstore
   or the book store, you can find it.  You can look for and
   find it.

   	But you are someone who is searching for a Disney
   character or for something on media images of women, the
   journalism student at -- in a high school who is searching
   for that and you can be confronted then with sexually
   explicit, links to sexually explicit sites.  And I would
   suggest to the Court this demonstrates that the Government
   does have a compelling interest here and underscores what
   that interest is.

   	JUDGE SLOVITER:  If we-- if we find -- and I'm not
   saying we will, we haven't even talked to each other for
   weeks -- well, they may have, but I haven't.  If we -- they
   are on the same floor.

   	If we find that the evidence does not support the
   proposition that there is a significant problem of
   inadvertently chancing upon such material because you have to
   do a lot of clicks or because there's a warning, what would
   remain of the Government's contention of a compelling
   Government interest?

   	In other words, is there a compelling Government
   interest as a matter of law to shield 15 year olds from -- 14
   year olds from material they want to see and their parents
   don't care whether they see or not?

   	MR. COPPOLINO:  Your Honor, I think that virtually
   all of our interest remains.  And I'll tell you -- I'll tell
   you why.  I think that to just evaluate  the case on this
   issue of inadvertence, of surprise, it's a factor, it's
   something to take into account.  Certainly these hits are
   jarring when you're looking for something that's not sexually
   explicit, but the key point is the ease with which minors --
   anybody, but minors in particular can get access to this
   stuff and that is the important thing.  Not whether --

   	JUDGE SLOVITER:  If they want it.

   	MR. COPPOLINO:  If they want it.

   	JUDGE SLOVITER:  And whether or not the parents
   care?  Because I thought in reading the conference committee
   that it all dealt with, you know, they want to help the

   	MR. COPPOLINO:  Well, yes, they do want to help the
   parents.  Here's the point, your Honor.  A child or a minor,
   let's take a junior high student or someone over 13, as I
   said, he can't go buy it in the store, he can't go into the
   movie theater, he can't go into the adult book store, but he
   can't --

   	JUDGE SLOVITER:  He can go into the library in

   	MR. COPPOLINO:  Well, he can't get this stuff in the


   	MR. COPPOLINO:  And he can click it on and get it,
   and that's really, I think, the heart  of the interest.  If
   he knows what he's doing or if it's an accident, but the key
   to the interest is that you can get it, you can get a lot of
   it, you can get it easily and you can get it across a range
   that has never been available before to minors.  And that's
   the significant interest at stake. 

   	JUDGE DALZELL:  Books, what, I keep coming back to
   that question: what is it about this medium which our
   friends, I think you would have to agree with them, have
   established is this most democratic of mediums that the human
   mind has come up with yet, what is it about this medium that
   makes it different from print in terms of the constitutional
   protection it should receive?

   	MR. COPPOLINO:  Uhm, well, I'm not sure I really
   understand the question but I'm going to try to -- I'm going
   to try to answer it this way.  This is a telecommunications
   medium which pipes down to the home this kind of material
   along with other kinds of materials that would be useful to a
   child, educational materials, scientific materials and so on.

   	If you talk about the print medium, the print medium
   in your newspaper there, you're not going to get access to
   this kind of patently offensive, sexually explicit material
   at all.  You're not going to get access to that kind of stuff
   unless you go buy it, but this you can.

   	JUDGE DALZELL:  Above the fold in the New York Times
   just within the last two weeks above the fold was a story on
   female genital mutilation in Africa, it had a photograph of a
   woman who was scared to death to go back there, and I'll tell
   you, I think -- it's a terrible problem but I would be a bit
   concerned about my son reading it above the fold.

   	MR. COPPOLINO:  Sure.

   	JUDGE DALZELL:  Should we have that newspaper
   decency act?

   	MR. COPPOLINO:  I'm not going to advocate the
   newspaper decency act, your Honor.

   	JUDGE DALZELL:  So your argument really is that this
   is like broadcasting?

   	MR. COPPOLINO:  My argument is that this is much
   closer to broadcasting than it is to print.  And in a few
   years, as Mr. Bradner said, it will be virtually the same as
   broadcasting.  You're not going to have a handful of
   entities, but you're going to have -- you're going to have
   this very pervasive -- if I could just make one last point,
   your Honor.

   	JUDGE SLOVITER:  No, it won't be last because we
   have questions.

   	MR. COPPOLINO:  Mr. -- Mr. Burrington and I believe
   Mr. Bradner, but certainly it is a fact in the record that
   the Internet can be piped through not just through a 14.4 or
   a 28.8 modem, but through coaxial cables, that's a coming
   technology, it's being tested out in the market right now.

   	That's going to zoom the stuff down to the
   marketplace faster than we can do now with these, with even
   this T-1 line that we had in here.  And, and as I have
   indicated, you have more than just pictures and text.  You're
   going to have images, you're going to have movies.  It's
   going to be like cable television more than anything else.

   	JUDGE DALZELL:  If we hold, for example, that a
   chatroom bears no resemblance to anything on the broadcast
   medium, do you lose?

   	MR. COPPOLINO:  No, I don't -- I don't think we lose
   but I do think that the chatrooms and some of the other
   medias present different questions and admittedly tougher

   	JUDGE DALZELL:  But you would agree with me that the
   chatroom bears no resemblance whatever to a broadcast medium?

   	MR. COPPOLINO:  Well, one thing --

   	JUDGE DALZELL:  It's interactive, people are talking
   to one another --

   	MR. COPPOLINO:  Mm-hmm.

   	JUDGE DALZELL:  -- not the telephone.

   	JUDGE BUCKWALTER:  Well, aren't the broadcast media
   shows interactive, too, some of them, as I recall?  The talk,
   the call-in shows and so forth?

   	MR. COPPOLINO:  I think that's right, but even --
   even with --

   	JUDGE BUCKWALTER:  Are they --

   	MR. COPPOLINO:  The one thing you have to bear in
   mind on the interactive computer service is  that it's
   generally run over telephone lines and a chatroom certainly
   is not -- is not all that different from communicating over a
   telephone line although you can see it in print on your
   screen.  And Dial-A-Porn comes over the Internet.  You can
   have audio applications.

   	JUDGE DALZELL:  But Dial-A-Porn doesn't go beyond
   porn, by definition.  The Supreme Court made it absolutely
   clear that's all they were dealing with was porn, they
   weren't dealing with the generic question of whether Congress
   has the power to control a conversation that I have with
   Chief Judge Sloviter or, I guess more accurately for this
   case, that she has with my ten year old son.

   	MR. COPPOLINO:  Your Honor, that's right.  But were
   kind of back now to does this indecency standard cover every
   time someone uses a dirty word in a chatroom when they get
   mad.  And I would suggest that that's really not what it's
   intended to cover and the chatrooms do present tougher issues
   than the commercial Web sites where it is clearly
   constitutional.  But as Mr. Baron will indicate this
   afternoon, there are methods that if you -- there are methods
   where if you're going to have a highly sexually explicit
   chatroom discussion, that there are methods that people can
   take to screen access even to that, screen access by minors
   even to that kind of stuff, that this is not -- there are 
   not -- there are not, as Mr. Ennis says, no possible defenses
   even for those media.

   	But if I could maybe --

   	JUDGE SLOVITER:  I'd like to get back  to the
   Government's first, basic First Amendment position because
   I'm -- and I know we've thrown this at you, but we've been
   bottling this up as we read it.

   	If -- does the Government have the right to make it
   a criminal offense for a 14 year old to read Henry -- let's
   assume that Henry Miller's "Tropic of Cancer" would be
   indecent under the statute.  I mean, as I recall from when I
   read it and I was probably not 18 at the time, there -- I
   mean I think I might find it much more indecent now than I
   did then, but my --


   	JUDGE SLOVITER:  -- sensibilities have changed.

   	But I'm thinking of like the most indecent,
   potentially indecent book I ever read.  And let's assume, I
   think, can we assume that "Tropic of Cancer" would be
   indecent in some communities?

   	JUDGE DALZELL:  Oh, yes, I think so, in some

   	JUDGE SLOVITER:  Certainly patently offensive, the
   language, the subject matter and everything else.  Do you
   claim that the First Amendment's extension of rights to read
   that kind of material don't cover a 14 year old?  I just want
   to -- yeah, do --

   	MR. COPPOLINO:  Don't cover a 14 year old?  Well, I
   do think that, first of all, if you assume the conclusion
   that it is indecent --

   	JUDGE SLOVITER:  Yeah, let's --

   	MR. COPPOLINO:  -- which I'm not quite sure I agree
   with.  But if you take that assumption, I do think that
   Congress can draw a bright line, that it's very difficult to
   differentiate between the maturity levels and the abilities
   of minors at different ages to deal with this stuff.

   	Now, certainly a 14 year old might be able to deal
   with it better than an eight year old that probably couldn't
   even read it.  So there are differences between minors, I
   don't dispute Mr. Hansen's point on that.  I think the
   problem though is once you try to move that line down and try
   to capture the more mature minors, you're going to have a
   terribly difficult problem regulating that.  And therefore I
   think Congress is entitled to say age of, you know, age of
   adulthood, age 18, is the line that we're going to draw here.

   	Now, you're assuming that this book is indecent and
   I'm not sure.  I mean I read "Catcher In The Rye" in high
   school and I wasn't 18 yet.

   	JUDGE SLOVITER:  I think this is -- this is a
   different medium.  I think that this is a different, as I
   recall I think this is far different from "Catcher In The

   	JUDGE DALZELL:  Oh, very different.

   	JUDGE SLOVITER:  And I think they even tried  to
   keep it out of this country at some point.

   	JUDGE DALZELL:  They did, they did.

   	MR. COPPOLINO:  I'm going to go buy it, in fact.


   	JUDGE DALZELL:  It's really not that good.

   	JUDGE SLOVITER:  I don't think it is now but one
   might have argued that it had some benefit at that time
   because it opened the freedom to read literature like this. 
   I don't know.

   	But I'm just interested in the basic proposition
   because we're dealing with the Government's interests.  I
   mean I am coming back to this case because the question is,
   is there a compelling Government interest?

   	And if you don't deal with the inadvertence, if you
   say well, inadvertence is not really a problem, there's more
   of a Government interest here and you say yes, there is and
   it's not just the inadvertence, then the question is how much
   Government interest has been sustained by the case law in
   keeping children from material that is not purveyed for
   prurient interests by commercial enterprises, and that's a
   very basic question that we have.  And --

   	MR. COPPOLINO:  Yeah, I -- I'm not aware of the
   cases which have said that the Government has a compelling
   interest in shielding minors from access to literature of
   this -- I'm not quite sure what this is so I'm not going to,
   I'm not going to talk about that.  But let's just assume
   serious literature that might contain sexually explicit
   scenes in it, the Government's compelling interest has been--

   	JUDGE SLOVITER:  Themes.

   	JUDGE BUCKWALTER:  What is the Government's
   compelling interest in this case?

   	MR. COPPOLINO:  The Government's compelling interest
   has been in this case and in many cases like it has been
   consistently upheld as to protecting minors from exposure to
   non-obscene materials, that is materials that are not obscene
   as to adult but nonetheless harmful to minors.  And when you
   look at every one of those cases, whether it's the indecency
   cases or the harm to minors cases, you are talking about the
   kinds of sexually explicit materials we've put forward.  And
   we are suggesting to the Court that that is the compelling
   interest that is here.  The plaintiffs --

   	JUDGE SLOVITER:  But we didn't, but they didn't put
   a harmful to minors provision in.  We have to read it in?

   	MR. COPPOLINO:  No, your Honor, the cases involving
   non-obscene mater-- materials that are not obscene as to
   adults but harmful to minors are both the harmful to minors
   test and the indecency test.  In Sable and in these cases
   implying the indecency standard, they point that right out.

   	They say the Court in -- Supreme Court in Ginsburg
   and Ferber says that the Government has a compelling interest
   in protecting children from material that is not obscene as
   to adults but harmful to minors and in this case they're
   using the indecency standard, I don't think that that really
   matters much.

   	I could probably conclude with two --

   	JUDGE SLOVITER:  Go ahead.

   	MR. COPPOLINO:   I could -- I could conclude now, I
   could start again this afternoon.  The only --

   	JUDGE SLOVITER:  No, go ahead, you finish up

   	MR. COPPOLINO:  Okay.  That would be probably a good
   idea.  I mean the -- just the one point I want to make, the
   one --

   	JUDGE SLOVITER:  And you've done beautifully.

   	MR. COPPOLINO:  The one -- two final points.  On
   this issue of over-breadth and I think least restrictive
   means, I would ask the Court to very seriously consider that
   there is a substantial valid application of the statute as to
   the types of materials that we have submitted and you don't
   have to re-write the statute to find that.  I think we
   presented you the evidence that there is a serious problem
   and I think the defenses, certainly the credit card and
   access code defenses easily apply, it can apply and the
   providers can do it.

   	Let me just touch briefly on the -- 

   	JUDGE SLOVITER:  Could I ask you another question?

   	MR. COPPOLINO:  Okay.

   	JUDGE SLOVITER:  Okay, I didn't think you'd say no.


   	JUDGE SLOVITER:  Mr. Baron is going to deal with the
   defenses but as I understand, you're saying that if it's
   material with a serious redeeming value it wouldn't be
   covered and --

   	MR. COPPOLINO:  No, I'm saying that material that as
   a whole has a serious redeeming value --


   	MR. COPPOLINO:  -- it shouldn't be covered by this
   standard such as the materials the plaintiffs have submitted.

   	JUDGE SLOVITER:  Now, in the conference committee
   report the conference committee report says they would --
   they are not really a problem because there is no intent to

   	Do you think we have to read into the statute an
   intent to offend?

   	MR. COPPOLINO:  well, I think that that language is,
   I think that intent to offend is such a significant standard
   that that would be a lot to read that intention standard into
   the statute, but I think it underscores Congress' intention
   that the material be limited to -- to the types of materials
   that they specifically identified in the Congressional
   Record, to the types of materials that I am talking about.

   	But I don't --

   	JUDGE SLOVITER:  Is your answer a yes or a no?

   	MR. COPPOLINO:   I guess my answer is I don't think
   you can read into the statute an intent to offend cause it's
   not in the statute.

   	JUDGE SLOVITER:  Even though that was the reason --
   well, neither are a lot of the other things.  But that was
   the reason the conference committee report gave for exempting
   in a way although not explicitly material of a serious
   redeeming value.

   	MR. COPPOLINO:  Yes, but my arguments with respect
   to your construction of indecency and over-breadth I think
   are fully comfortable within the statutory language, to read
   in an intense standard is more.  And I would just suggest to
   the Court that that language in the conference report
   underscores the parameters and the limitations of the
   indecency standard, but I think beyond that I really couldn't
   ask -- tell the Court to construe it that way because it's
   just -- it's just not plain from the statute.

   	The -- I guess the last point, I'll make this fairly
   quickly.  As you know, I cross-examined Mrs. Duvall and I
   think that the parental controls -- I just want to make a
   point on the parental controls as a less restrictive means.

   	They are certainly very commendable products but I
   think we saw a number of the flaws with those products which
   suggest that they cannot by themselves serve this purpose.
   And I think, just to sum it up in a nutshell, Mrs. Duvall I
   think very candidly indicated that Surfwatch is constantly
   trying to update.  They started with 2,000 sites, they're now
   up to about 8,000.  There's four to eight hundred new sites a
   week, there's a constant lag and there is a constant effort
   to change, to chase up and catch up with these sites. 

   	And, as the Court also saw in Mr. Schmidt's
   testimony, sites change their names almost within a couple of
   days.  And therefore Surfwatch by itself and products like
   that which try to identify sites or have key words can't do
   the job.  Key words don't necessarily get you there either
   because you saw there's lot of exhibits that we submitted
   that don't have a sexually explicit URL and they're not going
   to get picked up on a key word search.  So you've either got
   to know what that site is, if you haven't found it already,
   Surfwatch is not going to pick it up.

   	So I think -- I think our brief has made that point
   pretty clearly and I guess I will -- I will stop there.

   	JUDGE SLOVITER:  What scrutiny do we apply?

   	MR. COPPOLINO:  Your Honor, I -- you apply the Sable
   test, but you -- which is --

   	JUDGE SLOVITER:  Is that strict scrutiny?

   	JUDGE DALZELL:  That's strict scrutiny, sure.

   	JUDGE SLOVITER:  Okay, that's all right.

   	MR. COPPOLINO:  Taking into account my argument on


   	JUDGE SLOVITER:  Thank you very much.  We will meet
   again in an hour and we will begin with Mr. Baron.

   	Thank you, Mr. Coppolino.

   	(Court in recess; 12:46 o'clock p.m.)


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