IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M 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: THE HONORABLE DOLORES K. SLOVITER, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THE HONORABLE RONALD L. BUCKWALTER THE HONORABLE STEWART DALZELL UNITED STATES DISTRICT JUDGES - - - APPEARANCES: 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 -and- STEFAN PRESSER, ESQUIRE American Civil Liberties Union 123 S. 9th Street, Suite 701 Philadelphia, PA 19107 -and- 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 -and- 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 preliminarily? 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 both. 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 imprisonment. 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 that? 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 air. 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. JUDGE DALZELL: Okay. 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 it. 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 boo? 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 provisions. JUDGE DALZELL: Yes. 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 prurience. I think that -- I think we're flatly presented with the question of whether the Congress can criminalize such statutes. 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 indecent. 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 terms. 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 jurisprudence. 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 yet. 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 -- (Laughter.) 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. (Laughter.) MR. HANSEN: And the other way I think you can, before I go on to over-breadth, the other way I think you can -- (Laughter.) 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 minor. 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 examples. 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 correct? 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. (Laughter.) 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 upheld. JUDGE SLOVITER: Have you commented on the narrow tailoring? 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 defenses? 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 covers. 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. (Laughter.) 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 not? 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 proposition? 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. (Laughter.) 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 SLOVITER: Sure. JUDGE DALZELL: Mr. Ennis? MR. ENNIS: Good morning, your Honors. JUDGE DALZELL: Good morning, Mr. Ennis. MR. ENNIS: Bruce Ennis representing the ALA plaintiffs. 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. JUDGE SLOVITER: Okay. 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 statute. 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 Internet. 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, but-- 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 means. 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 provision. 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 speech. 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 minor. 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 testimony? 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 -- (Laughter.) 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 effective. 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 inconsistent? 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 alternative? 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. JUDGE BUCKWALTER: Okay. 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 BUCKWALTER: Right. 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 here? 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 out. 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 matter. 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 percent. 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 act. 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 world. 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 that? 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 subscribers. 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 rebuttal. JUDGE SLOVITER: But we'll see -- we'll hear you on rebuttal. 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 that-- 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 accident." 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 there. 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, schools. 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, nothing. 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 case. 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? (Laughter.) 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 -- (Laughter.) 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 subject? 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 well. Thank you. JUDGE DALZELL: All right, we will -- go ahead. JUDGE SLOVITER: We will recess for 15 minutes, please. (Court in recess; 11:07 to 11:28 o'clock a.m.) THE COURT CLERK: Court is now in session, please be seated. 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. (Laughter.) 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 to. 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-- JUDGE SLOVITER: Yes. 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 -- JUDGE SLOVITER: Okay. 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 covers. 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 -- (Laughter.) 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 -- JUDGE SLOVITER: Yes. 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 there. 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 on. 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 isolation. 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 history-- 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. (Laughter.) 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? MR. COPPOLINO: No. JUDGE DALZELL: Hansen, I mean, this is the Federal Communications Commission did this. Did they do an absurd thing? 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 objectionable. 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. JUDGE SLOVITER: Yes. 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 point. 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 reads. 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. Attorneys? 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 large. 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 communication. 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 USC? 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 community? 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 -- (Laughter.) JUDGE BUCKWALTER: For the record, that's spelled L-a-n-c-a-s-t-e-r. 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 BUCKWALTER: Right. 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 answer. 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 sex. 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 pornographic. 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 obscene. 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 Stewart. (Laughter.) 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 lawyer? JUDGE DALZELL: No, you're the lawyer for the University of California at Riverside. What would you tell them? 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. JUDGE DALZELL: How? 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 successfully. JUDGE SLOVITER: Well, you're distinguishing between pornographic and obscenity, are you making a distinction there? 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 through. 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 or... 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 content. 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 standard. 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 restrictions. 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 discretely. 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- breadth. 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 them. 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 notebook. 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 portion? 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 -- JUDGE SLOVITER: Why? 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 diminishing. 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 Honor. 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 broadcasting. JUDGE BUCKWALTER: Okay, as I just -- that's what I thought your answer would be and I wanted to understand your position. 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. (Laughter.) 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 point. 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 easily. 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 defenses. 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 argument? 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 parents. 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 Pittsburgh. MR. COPPOLINO: Well, he can't get this stuff in the library. JUDGE SLOVITER: Oh. 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 questions. 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 -- (Laughter.) 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 communities. 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 Rye." 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. (Laughter.) 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 yourself. 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. (Laughter.) 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 -- JUDGE SLOVITER: Okay. 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 offend. 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 Pacifica. (Laughter.) 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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