Spring fever is in the air at the Supreme Court as the justices prepare to hear arguments about the constitutionality of the Communications Decency Act on March 19. To familiarize themselves with the technological obstacles to finding pornography in cyberspace, some law clerks have obtained lists of especially salacious addresses on the World Wide Web and diligently browsed at their leisure. Not since the justices gathered to watch dirty movies in the basement of the Court during the 1960s (Justice Harlan, almost blind, asked his clerks to narrate as the action unfolded) have clerkly duties been quite so arduous.
In cyberspace, too, the mood is giddy. "WHY WE'LL WIN" boasts the website of the Electronic Frontier Foundation; and, indeed, there is a widespread expectation that the justices, in ACLU v. Reno, will agree with the three district court judges in Philadelphia who struck down the Communications Decency Act last June. But the triumphalism is premature. In light of technological and legal changes over the past year, there is now a plausible argument for upholding the constitutionality of the CDA that a majority of the Court might find convincing. In capsule form, here it is.
The CDA has two parts. The first part says, in effect, that if you display "indecent" or "patently offensive" material on the Internet, "in a manner available to a person under 18 years of age," you are a criminal. The second part says that you have a defense to prosecution if you take "reasonable, effective, and appropriate actions" to restrict access to minors, by "requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."
The best argument for upholding this electronic Comstockery can be summed up in a single world: zoning. Solicitor General Walter Dellinger, in his brief, and Lawrence Lessig of the University of Chicago, in a series of powerful articles, urge us to view the CDA as an Internet zoning ordinance that channels indecent material away from children while guaranteeing full access to adults. First Amendment law recognizes three categories of sexually explicit speech: obscenity, which can be banned; ordinary speech, which must be protected; and indecency, which can be restricted for children but not for adults. In its zoning cases, the Court has said that government can move porn shops to red light districts, where children can't easily find them, or require porn sellers to check identification before selling over the counter.
In cyberspace, of course, it's much harder to discriminate on the basis of age. Users are anonymous, and teenage boys don't have to wear stilts and a mustache to disguise the fact that they are teenage boys. Just as clustering porn shops near the docks is a permissible way of discouraging crime and sloth in residential neighborhoods, the argument goes, putting porn behind electronic doors is a permissible way of ensuring that the Internet is the kind of neighborhood that parents will let their children enter in the first place.
When the three judges in Philadelphia rejected the zoning argument last June, they assumed that individual speakers on the Internet would have to set up their own adult identification sites to avoid prosecution, a prospect they found "either technologically impossible or economically prohibitive." But, since last June, the technology has changed in response to the market. Services with names like "Adult Check" and "Porno Press" now provide adult identification numbers to individual Internet users for a one-time fee of $9.95, charged to a credit card; the number then serves as a "key" that provides easy access to all the Internet sites that put up the "gates" required by the CDA. This system is no longer "economically prohibitive" for the Internet sites that use it; on the contrary, "Adult Check" actually pays the sites a fee for each user they refer.
So the age verification system doesn't appear to be an insuperable burden for porn suppliers. Is it an unconstitutional burden for adult porn consumers? The answer isn't obvious. Obtaining an adult identification number requires some effort, a minimal fee, a credit card or money order and the associated stigma of having the fee show up on your credit card bill. In the future, civil liberties organizations might set up their own adult verification sites to minimize the stigma--you could order your password from "ACLU check" rather than "Adult Check"--but consumers of porn would still have to identify themselves as consumers of porn. (Today, by contrast, free samples can be downloaded anonymously from the Web and from Usenet newsgroups.) Whether the embarrassment of this act of self-identification is comparable to the embarrassment of being observed by your neighbors sneaking out of an adult bookstore is hard to say. In an adult bookstore, at least, you can wear dark glasses and pay cash to protect your anonymity. If the Court decides, in the end, that the disincentives created by the adult identification system would greatly restrict the ability of adults to buy Playboy, it should probably strike down the CDA. But, because the Internet has vastly diminished the opportunity costs associated with buying porn (you no longer need to drive from Cincinnati to Kentucky, for example), the justices might reasonably conclude that the burdens of an adult I.D. are comparatively small.
The opponents of the CDA have another argument along the same lines. An adult identification system isn't the "least restrictive means" of keeping porn out of the hands of children, they argue, because there's a less restrictive, and more effective, technology available: the Platform for Internet Content Selection, or PICS. PICS is a rating and filtering technology, like the V-chip, that permits content providers, or third-party interest groups, to set up their own private rating systems for any "pics-compatible" document that is posted online. Individual users can then choose the rating system that best reflects their own values, and any material that offends them will be blocked from their homes.
The ACLU praises PICS for allowing individual users to exercise perfect choice about what comes into their homes. Lawrence Lessig, by contrast, suggests that "PICS is the devil," from a free speech perspective, because it allows censorship at any point on the chain of distribution. Countries like China or Singapore, or American corporations afraid of lawsuits, can decide what kind of speech they want to make available to their workers, and impose draconian restrictions from above. In the long run, Lessig suggests, PICS will suppress more speech than an adult identification system would, because it will allow those who control access to individual terminals to filter out uncongenial ideas. But for the Supreme Court to accept this as a constitutional argument would require it to embrace a collectivist view of the First Amendment, which says that citizens should be exposed to a diversity of views, whether they want to be or not. If, on the other hand, you believe that the First Amendment is more concerned with preventing government from restricting the autonomy of individual speakers, then PICS seems less intrusive than checking I.D.s.
Up until now, I've been discussing the CDA as if its language about "indecent" or "patently offensive" material, "as measured by contemporary community standards" that "depicts or describes sexual or excretory activities or organs," refers only to the kind of sexually explicit speech that the Supreme Court has said can be restricted for children. The Clinton Justice Department has tried to support this view by announcing that it will enforce the statute only against commercial pornographers. But this is hardly the most natural reading of the statute. In striking down the CDA, two of the three judges in Philadelphia held that the phrases "indecent" and "patently offensive" are unconstitutionally vague and might inhibit speech that has nothing to do with pornography, such as discussion groups about gay rights or Joyce's Ulysses.
The vagueness argument, however, is hard to sustain in light of an unfortunate Supreme Court opinion handed down on June 28, 1996, several weeks after the Philadelphia decision. Justice Stephen Breyer, joined by three of his colleagues, held that the Cable Television Consumer Protection Act, which permits cable operators to ban programming that depicts "sexual or excretory activities or organs in a patently offensive manner," is vague but not "impermissably vague." The "patently offensive" language for defining indecency, Breyer held breezily, was "similar" (although not identical) to the Supreme Court's test for defining obscenity; and Breyer concluded that Congress intended to prohibit "pictures of oral sex, bestiality and rape, and not. . .scientific or educational programs (at least unless done with a highly unusual lack of concern for viewer reaction)."
The imprecision of Breyer's analysis threatens to confuse an already confused area of the law. But, in light of Breyer's holding that the government has a compelling interest in shielding children from "indecent" speech, it will be hard to argue that the identical language in the CDA is unconstitutionally vague. Opponents can try to argue that the amorphous "indecency" standard is especially inappropriate for cyberspace, where everyone is a broadcaster, but not everyone has a lawyer. (In real space, there are just a few broadcasters, and all of them have lawyers.) Moreover, the category of "indecency" was cobbled together because of the uniquely intrusive qualities of television, and on the Internet it's easier to protect children with electronic gateways. But this ends up being an argument in favor of the CDA, not against it.
Justice Breyer's indulgent view of the Cable Television Act shows the hazards of constitutional pragmatism. He criticized his colleagues for lacking the "flexibility necessary to allow government to respond to very serious practical problems," such as protecting children from indecency. But he failed to consider the degree to which the distinctions between indecency, pornography and obscenity are increasingly unstable in a global information age. Cable television and the Internet have called into question the distinction between pornography and obscenity by exposing the incoherence of geographically identifiable "community standards": especially in cyberspace, it's unrealistic to expect individual speakers to be able to predict the standards of the thousands of communities that their words and pictures may enter without their consent. It wouldn't be inconsistent with recent trends in law and technology for the Court to uphold the Communications Decency Act. It would, however, be a mistake.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.