Washington, D.C.
    Wednesday, March 19, 1997
    The above-entitled matter came on for oral
    argument before the Supreme Court of the United States at
    10:06 a.m.
    APPEARANCES:
    SETH P. WAXMAN, ESQ., Deputy Solicitor General, Department
    of Justice, Washington, D.C.; on behalf of the Appellants.
    BRUCE J. ENNIS, ESQ., Washington, D.C.; on behalf of the Appellees.





                                                          2
 1                          C O N T E N T S
 2    ORAL ARGUMENT OF                                      PAGE
 3    SETH P. WAXMAN, ESQ.
 4         On behalf of the Appellants                        3
 5    ORAL ARGUMENT OF
 6    BRUCE J. ENNIS, ESQ.
 7         On behalf of the Appellees                        33
 8    REBUTTAL ARGUMENT OF
 9    SETH P. WAXMAN, ESQ.
10         On behalf of the Appellants                         







11                  ORAL ARGUMENT OF SETH P. WAXMAN
12                    ON BEHALF OF THE APPELLANTS
13              MR. WAXMAN:  Thank you.  Mr. Chief Justice and
14    may it please the Court:
15              The Internet is a revolutionary advance in
16    information technology.  It also provides a revolutionary
17    means for displaying patently offensive, sexually explicit
18    material to children in the privacy of their homes.
19              With as many as 8,000 sexually explicit sites on
20    the World Wide Web alone at the time of the hearing, and
21    the number estimated to double every 9 months, the
22    Internet threatens to render irrelevant all prior efforts
23    to protect children from indecent material.
24              All of the laws regulating the display of
25    indecent materials in theaters and book stores, on radio,





                                                          4
 1    TV, cable, and telephone, all of these approach
 2    insignificance when the Internet threatens to give every
 3    child with access to a connected computer a free pass into
 4    the equivalent of every adult bookstore and video store in
 5    the country.
 6              Congress debated for a year-and-a-half before
 7    enacting the Communications Decency Act which, as we
 8    explain in our brief, contains three distinct provisions.
 9              Let me go right to the broadest one, which
10    prohibits the display of patently offensive material "in a
11    manner available to a person under 18 years of age."
12              When read together with the statutory -- 
13              QUESTION:  That is (d)(1)(A)?
14              MR. WAXMAN:  That is (d)(1)B).
15              QUESTION:  (d)(1)(B).  Thank you.
16              MR. WAXMAN:  When read together with the
17    statutory defenses, this provision permits persons to post
18    indecent material on the Internet so long as they take
19    reasonably effective steps not to expose it to children.
20              The district court found that on the World Wide
21    Web, where most of the material that concerned Congress is
22    posted, it is technologically feasible for speakers to
23    screen for age, and on commercial sites that is commonly
24    done.
25              Even as to noncommercial sites, the evidence



                                                          5
 1    showed that the technology exists, and is operating, to
 2    provide adults with a verification code that allows them
 3    to access adult-only sites at no cost to those who post
 4    information on those sites.
 5              QUESTION:  Mr. Waxman, does that technology
 6    require use of something called CGI -- 
 7              MR. WAXMAN:  It does -- 
 8              QUESTION:  -- in order to screen it out, in
 9    effect?  Is that the mechanism by which that can be done?
10              MR. WAXMAN:  The -- Justice O'Connor, the
11    mechanism by which a Web site can screen for age, or a
12    particular page, or indecent material on a Web site could
13    screen for age is, or at least at the time of the hearing
14    was by the use of something called CGI script.
15              But the obtaining of an adult ID is something
16    that the unrebutted evidence showed was a service that
17    even at the time of the hearing, without the benefit of
18    the Communications Decency Act in effect, an adult,
19    somebody over 18 who wanted to view patently offensive
20    material on a screen site could, for $5 a year, obtain an
21    adult identification that would give that person access to
22    any and all adult sites, and --
23              QUESTION:  Of course, the problem is not at that
24    end.  It is at the other end.  How can a person putting
25    material out in the system assure that it's only going to



                                                          6
 1    be accessible by somebody with that code?
 2              MR. WAXMAN:  Exactly, and what the record --
 3    what the district court found as fact was that on the
 4    World Wide Web it is technologically feasible and
 5    economically feasible, either by use of a credit card,
 6    which is more expensive, or by requiring the punching in
 7    of an adult ID code that is available from a third party
 8    for as little as $5 a year, to get access, but the
 9    technology on the World Wide Web exists to display this.
10              QUESTION:  Well, how does that fit in with use
11    of Web sites by noncommercial users, or just private
12    individuals or libraries, or something of that kind?
13              MR. WAXMAN:  Do you mean use, that is that they
14    want to view material, or use that they want to post
15    indecent material?
16              QUESTION:  Both.
17              MR. WAXMAN:  Okay.
18              QUESTION:  I mean, the library wants to have
19    material on its Web site which might be viewed as
20    indecent, I guess.  We're not talking about obscene
21    material -- 
22              MR. WAXMAN:  That's right.
23              QUESTION:  -- are we?
24              MR. WAXMAN:  That's right.  Let -- 
25              QUESTION:  We're talking about some other



                                                          7
 1    category of material.
 2              MR. WAXMAN:  Let me address the example of the
 3    library.
 4              QUESTION:  And while you're at it, I want you to
 5    tell me how -- what percentage of Web sites are incapable
 6    of using this CGI script, do you think?
 7              MR. WAXMAN:  Okay.  Let me -- 
 8              QUESTION:  Not all of them can use it, and so
 9    I -- 
10              MR. WAXMAN:  Well, let me answer your second
11    question first and then go to your library example, but
12    the testimony in the record before the district court was
13    that on -- for certain third party access providers like
14    America Online and CompuServe, which allow customers to
15    create their own Web sites for free, they do not currently
16    have CGI software, so for example I, I am a member of
17    America Online.  If I want to create my own Web page I
18    have to go to somebody else.
19              There are hundreds, if not thousands of servers
20    that you can go to to create a Web page.  I would have to
21    write my own Web page on something other than America
22    Online, or of course America Online could simply adopt CGI
23    script, which at the time of the hearing at least it had
24    chosen not to do.
25              Now, as to the library, the Carnegie Library is



                                                          8
 1    an appellee in this case, and it is a very good example of
 2    what we think represents the overblown nature of the
 3    challenge to this act.
 4              The library wants to do two things.  It wants to
 5    put its card catalogue on line so that anybody anywhere in
 6    the country can see what it is that the Carnegie Library
 7    has, and it also wants to put on line journals and
 8    abstracts that it in turn receives on line in an electric
 9    form.
10              Now, the definition, the accepted definition of
11    what is patently offensive, that is a term of art.  It is
12    very narrow, and it is exceedingly difficult to see how it
13    would apply to more than a handful of cards in a card
14    catalogue, but to the extent that it does, you can simply
15    run it through some sort of word processor or computer
16    program to screen -- it's only text, after all, on cards,
17    and if you find a card that -- 
18              QUESTION:  Mr. Waxman, may I ask you to go back
19    to the first point that you were answering, because I'm
20    puzzled.  I thought the district court found as a fact -- 
21    and this is at 929 F.Supp. 846 to 847 -- found as a fact
22    that noncommercial organizations particularly would find
23    age verification prohibitively expensive and that indeed,
24    in the Shea case, that same fact-finding was made.
25              MR. WAXMAN:  That is correct, and we do not



                                                          9
 1    think that that finding, as we read it, Justice Ginsburg,
 2    is either clearly in error or in error at all.
 3              What the court found, though, was that for
 4    noncommercial Web sites -- that is, people who aren't
 5    businesses that want to post speech on the World Wide
 6    Web -- it would be prohibitively expensive to create their
 7    own adult validation system.  That is the finding that the
 8    court made on page 55a of the Joint Appendix. I do not
 9    have the F.2d site, but that was not the only -- or
10    F.Supp. site.  Sorry.
11              That was not the only other alternative.  We put
12    on -- in response to their claim that the Communications
13    Decency Act acts as a ban, we put on evidence showing that
14    even prior -- even before the CBA came into effect there
15    were third party entities that on line would provide any
16    adult with an adult number for a fee of between $5 and
17    $9.95 a year, at no cost to the person who wants to create
18    their own Web site and put indecent material on it, which
19    would allow you to go to any of those Web sites, or any of
20    those pages, punch in your number and get access to it,
21    and there was -- that evidence is unrebutted on the
22    record.
23              So while we don't challenge the court's findings
24    that if people like you or I wanted to post our -- or
25    nonprofit organizations wanted to create their own adult



                                                          10
 1    verification system it would be unduly expensive, we do
 2    challenge the adequacy of that finding to support the
 3    conclusion that this statute is unconstitutional on its
 4    face.
 5              QUESTION:  May I ask you just for a little more
 6    clarification about your specific example of the
 7    Carnegie -- 
 8              MR. WAXMAN:  Yes.
 9              QUESTION:  -- the library posting a card that
10    they know would violate the statute if it is read by an --
11    17-year-old.  Now, what does this software do exactly,
12    that you are describing?  It identifies all the adult
13    people who have access to adult material.  That means that
14    anybody who does not have that cannot see it?
15              MR. WAXMAN:  What the -- Justice Stevens, what
16    the -- if the library found that there were any library
17    cards that contained material that could be deemed
18    patently offensive, they would take the -- 
19              QUESTION:  Let's assume they know something
20    would be, so it -- 
21              MR. WAXMAN:  Okay.  Let's assume there's that. 
22    If they had that, what they would do is, with respect to
23    those cards, or those journals that they know to be
24    patently offensive, they would put them in a little
25    section of their Web site in which to get access to it. 



                                                          11
 1    If you want to see -- we have certain other cards -- 
 2              QUESTION:  So that everyone who does not have
 3    the adult identification equipment, whatever it is, those
 4    people just don't see it.
 5              MR. WAXMAN:  That's right.
 6              QUESTION:  So that in order to get access to
 7    that if you're a viewer, you have to do whatever's
 8    necessary to become an identified adult.
 9              MR. WAXMAN:  That's right.  It's the exact
10    analogy to what may very well happen to the Carnegie
11    Library itself in Pittsburgh.
12              QUESTION:  What if -- 
13              MR. WAXMAN:  Pittsburgh may have an ordinance
14    that requires that patently offensive material be kept -- 
15              QUESTION:  What if an identified -- 
16              MR. WAXMAN:  -- in a different room and
17    supervised.
18              QUESTION:  What if an identified adult wrote the
19    library a letter and said, I have the adult stuff, but I
20    have a 17-year-old son that I'm going to have watch this
21    with me.  What should they do?
22              MR. WAXMAN:  Well, the act does not make illegal
23    the provision to adults of this material.  If a father or
24    mother -- 
25              QUESTION:  They would know there's a 17-year-



                                                          12
 1    old the audience.
 2              MR. WAXMAN:  If -- well, I think here it depends
 3    a little on the mode of communication.  If I -- if you ask
 4    me to send you an indecent E-mail, and you tell me that
 5    your son is sitting right next to you and is going to read
 6    it -- 
 7              QUESTION:  No, but my motive is that I'm Anthony
 8    Comstock, and I don't want this stuff to go out, so I'm
 9    telling you I've got a 17-year-old son who's going to help
10    me police the airwaves.
11              MR. WAXMAN:  Then I -- then under the specific
12    child and transmission provisions as well as the display
13    provision, you could not send it, but there is nothing
14    to -- there is nothing in this act that in any way gets in
15    the way of adult-to-adult communication.
16              I may very well find that my 16-year-old son in
17    my judgment, in my responsibilities rearing my child,
18    should be able to see material that a jury would find
19    patently offensive, and I can certainly do that.
20              QUESTION:  You're saying that any adult has a
21    heckler's veto on the whole operation by simply saying I'm
22    going to let my child watch it?
23              MR. WAXMAN:  Oh, no.  No, no.  Absolutely not.
24              QUESTION:  Well -- 
25              MR. WAXMAN:  The only thing that is prohibited



                                                          13
 1    under -- if I can separate out the provisions, under the
 2    two more specific provisions, what we call the
 3    transmission and specific child provision, they only apply
 4    to transmissions where you know that the recipient, or a
 5    recipient is a child.  If you don't know that, actually
 6    know it, it doesn't apply.
 7              Now, on the display provision -- 
 8              QUESTION:  It's more than knowing it, isn't it? 
 9    You have to send it to a specific person under 18.
10              MR. WAXMAN:  Yes.  Knowing -- 
11              QUESTION:  And it seems to me if you're sending
12    it to the adult and he says, by the way, I'm going to have
13    a child watching, you're not sending it to the child. 
14              MR. WAXMAN:  That is -- 
15              QUESTION:  You're sending it to the adult.
16              MR. WAXMAN:  That is absolutely right.  Now,
17    the -- what becomes more problematic is the display
18    provision, because it is broader.
19              QUESTION:  Yes.  Those two other provisions, as
20    you interpret knowing, are virtually worthless as I
21    understand it.  I mean, they're not going to accomplish
22    much.
23              MR. WAXMAN:  They are actually very, very
24    important to us in terms of our prosecutions of sexual
25    predators.



                                                          14
 1              QUESTION:  Which two provisions are you talking
 2    about?
 3              MR. WAXMAN:  This is  -- I think it's (a)(1)(D),
 4    the -- 
 5              QUESTION:  Transmission -- 
 6              MR. WAXMAN:  -- transmission provision, and
 7    (d)(1)(A), the specific transmission, the specific child
 8    provision.  They are really designed, Justice O'Connor, to
 9    get at the determined sexual predator.
10              QUESTION:  Well, is it the case under those
11    provisions that -- suppose a group of high school students
12    decide to communicate across the Internet, and they want
13    to tell each other about their sexual experiences, whether
14    those are real or imagined.  They're all -- every high
15    school student who would do this is then guilty of a
16    Federal crime, and subject to 2 years in prison?
17              MR. WAXMAN:  If high school -- I mean, when you
18    say they want to talk about their sexual experiences -- 
19              QUESTION:  That's been known to happen in high
20    school.
21              (Laughter.)
22              MR. WAXMAN:  I'm shocked to learn that there is
23    gambling in this establishment.
24              (Laughter.)
25              MR. WAXMAN:  There is a big difference, Justice



                                                          15
 1    Breyer, between discussing sexual experiences and
 2    communications and speech that is patently offensive as
 3    that term of art has come to be understood.
 4              QUESTION:  Well, I mean, I even imagine high
 5    school students might read from, let's say, books or
 6    magazines that have what people might think of as patently
 7    offensive ways of describing those experiences.  If you
 8    get seven high school students on a telephone call, I bet
 9    that same thing happens from time to time.
10              MR. WAXMAN:  It may.
11              QUESTION:  And so my concern is whether,
12    analogizing this to the telephone, it would suddenly make
13    large numbers of high school students across the country
14    guilty of Federal crimes as they try to communicate to
15    each other either singly or in groups.  That's one concern
16    I have.
17              MR. WAXMAN:  If high school students, like
18    anybody else, communicates what a jury would find and what
19    this Court would establish, given its responsibility to
20    create a constitutional floor to be patently offensive
21    within the meaning of this statute, they would violate it,
22    because the alternative -- 
23              QUESTION:  There's no high school student
24    exemption?
25              (Laughter.)



                                                          16
 1              MR. WAXMAN:  Justice Scalia, you may find it in
 2    the legislative history, but it is not apparent on the
 3    face of the statute.
 4              (Laughter.)
 5              QUESTION:  Wouldn't there then be a -- 
 6              MR. WAXMAN:  My point, if I could just finish,
 7    Justice Breyer, there is something that is -- there is a
 8    deadly serious point here, and that is that when the
 9    alternative is that every child in this country who has
10    access to a computer and can click a mouse has access in
11    his or her own bedroom or home or library to Hustler
12    Magazine and Penthouse Magazine, and the kind of indecent
13    speech that people sitting in the anonymity of their own
14    bedrooms anywhere in the world or anywhere in the country
15    wants to make available to them, we think that this is a
16    small price to pay, and Congress could legitimately say
17    that this is a narrowly tailored alternative.
18              QUESTION:  That's the -- 
19              QUESTION:  I take it then that you would also
20    defend the constitutionality of a statute which, tracking
21    the words we have here, prohibited indecent conversations
22    on a public street with minors present -- 
23              MR. WAXMAN:  I think that -- 
24              QUESTION:  -- or between minors.
25              MR. WAXMAN:  Well, I think that a municipality



                                                          17
 1    certainly could.  I think it is a harder case, but I think
 2    a municipality could make it a crime for an -- for two
 3    adults to engage in patently offensive, sexually explicit
 4    communications in the presence of a minor child.
 5              QUESTION:  Why is that a harder case?  It seems
 6    to me easier.  It's easier to verify.
 7              MR. WAXMAN:  Oh, it's a harder -- 
 8              QUESTION:  The presence of that minor.
 9              MR. WAXMAN:  It's a harder case because a public
10    park is a -- it's a free space.  It's an area where,
11    unlike the Internet, speech is free, which -- 
12              QUESTION:  You're asking us to say that the
13    Internet is not a public forum.
14              MR. WAXMAN:  The Internet is -- we don't think
15    it is, but if it is, in any event it certainly is, like
16    other public forums, subject to reasonable time, place,
17    and manner restrictions.
18              QUESTION:  A public forum is something created
19    by the Government, isn't it?
20              MR. WAXMAN:  Right.  Right.  We don't think it's
21    a public forum, whereas a park would be, but let me -- if
22    I can just -- 
23              QUESTION:  Well, it's a pretty public place,
24    though, because anyone with a computer can get on line --
25              MR. WAXMAN:  Right, and -- yes, and that is



                                                          18
 1    one -- 
 2              QUESTION:  -- and convey information and images,
 3    so it is much like -- 
 4              MR. WAXMAN:  It's one of the -- 
 5              QUESTION:  -- a street corner or a park, in a
 6    sense.
 7              MR. WAXMAN:  It's one of the wonderful things
 8    about it, and if I can just finish answering Justice
 9    Kennedy's question, you know, if a theater company wanted
10    to put on a production at the Sylvan Theater on the
11    National Mall that contained material that was patently
12    offensive -- I don't know what a current production would
13    be, but assume that they did.  It would not be at all
14    unreasonable or unlawful for the Park Service to say, you
15    have got to screen for age.  You have got to require
16    people to show adult ID.  You have got to cover the -- 
17              QUESTION:  But that's in the commercial context,
18    and Justice Breyer's question and my following question
19    pertained to people that don't have counsel, that aren't
20    broadcasters or regular Net users which understand what
21    the concepts of decency or indecency are in any
22    institutional sense, and conversations between two minors,
23    between a minor and an adult, between two adults on public
24    streets and public places would all be prohibited, it
25    seems to me, under your analysis in this case.



                                                          19
 1              MR. WAXMAN:  It's -- I think the analogy here
 2    really is to Renton and Young.  This is really a zoning
 3    issue.
 4              Let me give you an example.  Let's assume on the
 5    Mall -- 
 6              QUESTION:  May I suggest -- before -- it seems
 7    to me that the case that Justice Kennedy poses is a more
 8    difficult case, but isn't the reason that -- I don't think
 9    people throughout the country are worried about their kids
10    hanging around conversations going on on the public
11    street.
12              Isn't the scope of the risk involved very much
13    related to what the Government can do by way of avoiding
14    that risk?
15              MR. WAXMAN:  I don't think there's any question
16    about it.  I mean, what Congress was faced with, and what
17    the record below shows, if you look at the testimony of
18    Mr. Schmidt, our expert, and the exhibit that he produced
19    of the sites that he visited on one visit, the problem is
20    very, very serious.
21              But even looking to the National Mall example,
22    Justice Kennedy, if a park policeman finds somebody
23    sitting on one of the benches on the National Mall making
24    a speech with a bull horn or speaking in such a loud voice
25    that it can be heard by others, and using patently



                                                          20
 1    offensive language, I don't think there's anything
 2    constitutionally impermissible with saying, sir, if you
 3    want to do that, there's a specific place on the Mall for
 4    that, or for $3 you can buy a cone of silence, and we'll
 5    put you in this little cone and you can talk to yourself.
 6              QUESTION:  The point of my -- 
 7              MR. WAXMAN:  And that's what this is about.
 8              QUESTION:  Mr. Waxman, you know, there was once
 9    prevalent throughout this country a kind of ordinance that
10    went like this.  It made it a misdemeanor to use offensive
11    language in the presence of women and children.
12         I was wondering while you were speaking whether you
13    were saying the assumption that those laws are no longer
14    tenable would flunk the First Amendment, that that's not a
15    correct assumption.
16              MR. WAXMAN:  Those laws, Justice Ginsburg, are
17    distinguishable in two very fundamental ways, and it's
18    critical, I think, to this case.
19              One, this Court has recognized that, as opposed
20    to minors, there is a constitutional right to make
21    indecent, patently offensive speech to adults, and insofar
22    as this was trying to protect women from hearing such
23    speech, that would be unconstitutional.
24              Secondly, the notion -- 
25              QUESTION:  Well, let's take out women.  Just



                                                          21
 1    children.
 2              MR. WAXMAN:  Okay.  The notion in those laws --
 3    this is my second point -- of what is offensive was I
 4    think subject to a very serious vagueness challenge.
 5              What we have here is a definition of patently
 6    offensive material that is not vague, that has been held
 7    by this Court and the FCC and the lower courts not to be
 8    constitutionally vague, and we have set out at page 17 of
 9    our reply brief pretty much in haec verba what a jury
10    would have to be instructed in determining whether
11    something was patently offensive under their prevailing
12    community standards.
13              And added onto that we also have now, in light
14    of Miller, and Jenkins, and Hamling, and Ferber, this
15    Court's unequivocal statement that in the area of patently
16    offensive, where First -- where there is a First Amendment
17    implication on where the floor is drawn, the Court will
18    and must draw a constitutional floor below which juries
19    and legislatures can't go, so we have a standard here that
20    has been accepted, and can be refined by this or other
21    courts.
22              QUESTION:  Mr. Waxman, let me ask you another
23    question more or less along the lines, I guess, of Justice
24    Breyer's, who spoke of the high school students who might
25    go to prison.  If we combine the display section and the



                                                          22
 1    knowingly permit section, I take it that a parent who
 2    allowed his computer, the computer that the parent owned,
 3    to be used by his child in viewing offensive material,
 4    indecent material, the parent would also go to prison, I
 5    take it.
 6              MR. WAXMAN:  I don't see why that would -- maybe
 7    I'm missing something -- 
 8              QUESTION:  Well -- 
 9              MR. WAXMAN:  -- in the language, but it
10    prohibits a transmission.
11              QUESTION:   -- it's an offense to display the
12    material, as I understand it under the display section,
13    where minors will obtain it, and if a parent says I'm
14    going to allow, knowingly allow my computer to be used by
15    my child to observe these displays, isn't the parent
16    therefore guilty of the knowing, under the knowingly
17    permit section?
18              MR. WAXMAN:  I don't think so.  This is a
19    statute that is self-consciously directed solely at the
20    content provider, the person who is putting -- 
21              QUESTION:  No, but this isn't a content
22    provider.
23              MR. WAXMAN:  -- information on the World Wide
24    Web.
25              QUESTION:  It's a person who knowingly permits a



                                                          23
 1    device under his control to be used in effect to
 2    accomplish or facilitate any of these other offenses, and
 3    one of the offenses is the display offenses, and if the
 4    parent says, my computer can be used, in effect, to
 5    complete this display offense, because I'm going to let my
 6    child view it -- 
 7              MR. WAXMAN:  I see your point.  I -- 
 8              QUESTION:  -- why isn't a parent guilty?
 9              MR. WAXMAN:  Well, you're referring here -- I
10    now understand.  You're referring here to a separate -- a
11    provision separate from the three provisions that are at
12    issue in this case.  That is, (c) -- I can't remember.  In
13    any event, the knowing permission provision.  It's
14    number -- 
15              QUESTION:  (d)(2), and according to the three-
16    judge district court -- 
17              MR. WAXMAN:  Yes, (d)(2).
18              QUESTION:  -- plaintiffs also challenged those
19    provisions.
20              MR. WAXMAN:  Well, we think -- we think that in
21    order to -- if necessary to save the constitutionality of
22    that provision, this Court certainly could exempt the
23    provision of this material for parents.  I mean, one of
24    the major -- 
25              QUESTION:  How -- you mean under the -- by



                                                          24
 1    severance.
 2              MR. WAXMAN:  Well -- 
 3              QUESTION:  Under severability?
 4              MR. WAXMAN:  Well, you can call it a -- 
 5              QUESTION:  Wouldn't that be unconstitutional?
 6              MR. WAXMAN:  If you found it would be
 7    unconstitutional -- I can think of instances in which it
 8    might actually constitute child abuse, which this
 9    Court's -- 
10              QUESTION:  I take it you agree that the parent
11    would be guilty under that section.
12              MR. WAXMAN:  I think it depends on the way you
13    construe it.  This Court has the power and the authority
14    in dealing with a statute which is either arguably vague,
15    or arguably overbroad, to construe it or to partially
16    invalidate provisions or applications to save the
17    constitutionality.  That's -- 
18              QUESTION:  How could I construe it more narrowly
19    than my hypothesis?
20              MR. WAXMAN:  You could -- 
21              QUESTION:  What do you have in mind?
22              MR. WAXMAN:  You could certainly construe it to
23    exclude parents.  You could certainly say -- 
24              QUESTION:  That would just be grabbing a
25    limitation out of thin air.



                                                          25
 1              MR. WAXMAN:  It wouldn't any more be grabbing it
 2    out of -- 
 3              QUESTION:  Exclude parents -- 
 4              MR. WAXMAN:  Let me just say, it wouldn't,
 5    because there's a very clear record before Congress that
 6    what Congress was concerned about was not protecting
 7    children from their parents, but protecting children and
 8    their parents from the children getting access to material
 9    that the children -- 
10              QUESTION:  I could view this but Justice Scalia
11    couldn't.
12              MR. WAXMAN:  No, I think Justice -- 
13              (Laughter.)
14              MR. WAXMAN:  Justice Scalia could and would,
15    because -- 
16              (Laughter.)
17              MR. WAXMAN:  I didn't say will.
18              (Laughter.)
19              MR. WAXMAN:  If you look at cases that this
20    Court has decided with respect to overbreadth, this would
21    be, I suppose, an overbreadth challenge that it includes
22    parents, or doesn't exclude parents.
23              QUESTION:  Well, I -- 
24              MR. WAXMAN:  This Court would -- 
25              QUESTION:  At this point it's an overbreadth --



                                                          26
 1    I suppose it's an overbreadth challenge when you say well,
 2    it's interfering -- not as a matter of overbreadth.  It's
 3    interfering with the relationship between parent and
 4    child.
 5              MR. WAXMAN:  Yes, and you could do exactly what
 6    you did, for example, in United States v. Grace, where
 7    there was a criminal prosecution for demonstrating on the
 8    sidewalk in front of the Supreme Court.  The statute
 9    defined the Supreme Court grounds literally by metes and
10    bounds.
11              QUESTION:  Would I -- 
12              MR. WAXMAN:  There was no exclusion for
13    sidewalks.
14              QUESTION:  Excuse me.  Would I have to do that
15    in order to save the statute?
16              MR. WAXMAN:  I don't think so.
17              QUESTION:  Why?
18              MR. WAXMAN:  Well, I think -- because I think as
19    a practical matter it is so clear that this does not cover
20    what a parent shows a child in the absence of true abuse,
21    which is separately actionable.
22              QUESTION:  Well, but it's not clear that it
23    doesn't cover the coffee shop owner who has a computer
24    network, or a teacher, or a high school librarian who
25    under her supervision, or his supervision allows this



                                                          27
 1    material to be accessed.
 2              MR. WAXMAN:  If you think that it is necessary
 3    to save the (d)(2) provision from an overbreadth
 4    challenge, you should construe it, you must construe it in
 5    a manner that saves it as to those applications.
 6              QUESTION:  Could we talk about the defense
 7    clauses for a moment?
 8              MR. WAXMAN:  Sure.
 9              QUESTION:  And does the Government accept that
10    it is a defense under the act if a parent or any owner or
11    user of a computer buys some of this software that is
12    designed to screen out indecent speech?
13              MR. WAXMAN:  Well, it -- would it be a defense
14    to the prosecution of the person who provided the content
15    on the Internet?
16              QUESTION:  Yes.  I mean, I would be charged
17    presumably under the display provision as -- for putting
18    on some kind of indecent speech under your theory.
19              Now, is it a defense that there are these
20    programs and software to prevent the use of it?
21              MR. WAXMAN:  It -- 
22              QUESTION:  And how about the parent who lets the
23    child use the machine -- 
24              MR. WAXMAN:  Thank you, Justice O'Connor -- 
25              QUESTION:  -- that buys the software to screen



                                                          28
 1    it out?
 2              MR. WAXMAN:  The district court -- the district
 3    court in this case did not find, and properly so, that the
 4    purported -- that this purported solution that the
 5    appellees have offered, these parental control software
 6    programs like SurfWatch, are an effective alternative.
 7              It didn't find that, and the reason is that with
 8    hundreds of thousands of Web sites and tens of millions of
 9    pages that can be discretely accessed, and with the number
10    of sites increasing so rapidly, and the ability to change
11    the name of the site so easy, there is simply no way that
12    companies like SurfWatch or parents can keep up with what
13    can and can't be screened out, and even if they could,
14    with computers in libraries and community centers and
15    schools, it is not an effective alternative as matters
16    currently stand.  Now -- 
17              QUESTION:  What about tagging, Mr. Waxman?  Why
18    wouldn't it be adequate to meet the problem that is
19    concerned about for Congress to say, you'll have a
20    complete defense so long as you tag it?
21              MR. WAXMAN:  Well -- 
22              QUESTION:  And we'll establish a system.  XXX
23    means that it contains the kind of material that would
24    violate this act, and therefore so long as you put XXX on
25    it, you'll be safe.



                                                          29
 1              MR. WAXMAN:  In the -- Justice Scalia, in the
 2    absence of a regime in which there is a universal tag --
 3    that is, everybody knows and everybody uses, and -- 
 4              QUESTION:  Congress could do that.
 5              MR. WAXMAN:  Okay, and software that is
 6    available on all machines that are sold as a default mode
 7    to screen under that tag -- 
 8              QUESTION:  But that would be pretty easy if they
 9    were tagged.
10              MR. WAXMAN:  Congress -- that would essentially
11    be the mandated V-chip option.
12              QUESTION:  Right.
13              MR. WAXMAN:  And it would be better than what we
14    have now, but it would not be either more effective or
15    less restrictive than the Communications Decency Act.
16              Unlike television, we're not talking about a
17    handful of broadcasters here who have their own lawyers
18    and their own advertisers and other restraints on speech,
19    and we're also not talking -- we're talking about millions
20    and millions and millions of people who are putting speech
21    on, and that's where the burden has to be put, and on the
22    other hand, we're also not talking about television sets.
23              QUESTION:  But we are -- might be talking about
24    telephones, which was the point of my example with the
25    children.  Can Congress suddenly decide that all private



                                                          30
 1    telephone conversations will be monitored to see if there
 2    is indecent material going across the telephone that
 3    children will knowingly pick up?  That was my concern.
 4              MR. WAXMAN:  I think the answer is no.
 5              QUESTION:  If the answer is no, then how does
 6    this differ, because the Internet after all is, in
 7    addition to being a little bit like a common, is very much
 8    like a telephone?
 9              MR. WAXMAN:  The difference -- the regime you've
10    hypothesized is one in which all telephone calls between
11    all people in the United States would be monitored.
12              QUESTION:  No, what you'd have is an analogous
13    statute that applied to the telephone so that when the
14    high school students get on the phone and talk about their
15    experiences, suddenly that all becomes a crime, and it
16    suddenly looks a little bit worse from a First Amendment
17    point of view -- 
18              MR. WAXMAN:  It does.
19              QUESTION:  -- if what you're talking about is
20    the telephone.
21              MR. WAXMAN:  It does.
22              QUESTION:  But the Internet is rather like the
23    telephone.
24              MR. WAXMAN:  I have to disagree with your last
25    statement.  It looks a little bit -- it looks a lot



                                                          31
 1    different, because on the telephone you are not displaying
 2    graphic images.  You are not talking about a medium which,
 3    once it's placed on a computer by anybody, anywhere, is
 4    available to everybody everywhere.  You're talking about
 5    discrete communications -- 
 6              QUESTION:  The question here is overbreadth.
 7              MR. WAXMAN:  -- and it would be hard -- if I can
 8    just finish, it would be much harder for Congress to
 9    demonstrate and I don't think Congress believes that
10    there's a compelling interest, because of those
11    differences, in doing so.
12              You know, in the face of the problem, in the
13    face of this serious problem, I need to focus just for a
14    minute on what the district court did.
15              The district court threw up its hands and struck
16    down a statute without attempting to narrow it, without
17    attempting to make it more specific, and most
18    significantly, without finding that any more narrowly
19    tailored, constitutionally acceptable solution exists. 
20    That is error of law of the first order.
21              QUESTION:  Mr. Waxman, the district court was
22    concerned about legislating.  You know, it would be one
23    thing if you could just say, take out this sentence, or
24    take out this section, but just the kind of thing you
25    describe with respect to the parent, that's a lot.  That



                                                          32
 1    kind of tinkering courts don't do.
 2              MR. WAXMAN:  Justice Ginsburg, all I can say is
 3    that -- I mean, I could rattle off the name of a dozen or
 4    two dozen cases in which this Court in either the
 5    overbreadth context of the vagueness context has done just
 6    that even without a severability clause, and when there is
 7    a severability clause that includes the language of
 8    applications as well as provisions, this Court has always
 9    heeded that.
10              In fact, in Wyoming v. Oklahoma where the
11    request was that, okay, if it's invalid as to one
12    particular company, just strike them out, what this Court
13    said was, severability clauses may easily be written to
14    provide that if application of a statute to some classes
15    is found unconstitutional, severance of those classes
16    permits application to the acceptable classes.  Now -- 
17              QUESTION:  It was my impression from Califano v.
18    Westcott, which I think is the last time the Court dealt
19    with that, and it dealt with it up front, that the point
20    was made that you can lop of something, you can include or
21    exclude, you can put a caret mark, but nothing fancier
22    than that.
23              MR. WAXMAN:  I -- our understanding of the
24    cardinal rule, even in the absence of a severability
25    clause, is the rule stated in Ferber, in which this Court



                                                          33
 1    said, when a Federal court dealing with a Federal statute
 2    challenged as overbroad, it should, of course, construe
 3    the statute to avoid constitutional problems if the
 4    statute is subject to a limiting construction.
 5              Even if the Federal statute is not subject to a
 6    narrowing construction and is impermissibly overbroad, it
 7    nevertheless should be stricken down -- should not be
 8    stricken down on its face.  If it is severable only the
 9    unconstitutional portion should be invalidated, and here,
10    where we have a severance clause that directs the Court to
11    sever as to unconstitutional applications, we think that
12    rule should apply, too.
13              May I reserve the balance of my time?
14              QUESTION:  Yes, Mr. Waxman.
15              Mr. Ennis, we'll hear from you.
16                  ORAL ARGUMENT OF BRUCE J. ENNIS
17                      ON BEHALF OF APPELLEES
18              MR. ENNIS:  Mr. Chief Justice, and may it please
19    the Court:
20              There are four reasons why the preliminary
21    injunction should be affirmed.  The CDA bans speech.  It
22    will not be effective.  There are less-restrictive
23    alternatives that would be much more effective.  And the
24    combination of an imprecise standard, coupled with the
25    threat of severe criminal sanctions, will chill much



                                                          34
 1    speech that would not be indecent.
 2              First, the District Court found as fact that the
 3    CDA completely bans a vast amount of speech, all of which
 4    is constitutionally protected for adults, from all of the
 5    unique means of communication in cyberspace except the
 6    World Wide Web, and effectively bans that speech from most
 7    of the Web as well.  Virtually all speech that is
 8    displayed on the Internet in a manner that would be
 9    available to adults would also be available to minors.
10              QUESTION:  Excuse me.  You say it banned it from
11    other applications but not from the Web.  Is it your
12    contention -- and there is much of this in the briefs --
13    that every -- every facet of -- of cyberspace must be open
14    to this kind of communication?  I mean what is wrong with
15    saying, well, if you want to use cyberspace, you have to
16    use the Web?
17              MR. ENNIS:  Well, Justice --
18              QUESTION:  You can't get into -- into some of
19    the other --
20              MR. ENNIS:  Justice Scalia, let me try to answer
21    that question this way.  There are 40 million speakers who
22    use news groups, listservs and chat rooms.  It is not
23    technologically possible in those means of communication
24    to screen for age.  The Government's expert conceded that.
25              There are about 100,000 Web sites in all.  And



                                                          35
 1    most speakers cannot afford the $1,000 to $10,000 it costs
 2    to have their own Web site.  Furthermore, there is a much
 3    --
 4              QUESTION:  But, look.  Let's take printed
 5    communications.  It is certainly lawful -- and we have
 6    upheld provisions that require pornographic materials to
 7    be kept away from minors and not to be sold in such a
 8    fashion that minors can obtain them.  This effectively
 9    excludes the publishers of pornographic publications from
10    vending their material on the streets in vending machines,
11    where minors can get access to them.  Do we say it's
12    unconstitutional because they cannot use that manner of
13    communication?  I don't think so.  We say tough luck, you
14    have to sell it in stores.
15              MR. ENNIS:  Your Honor, in Southeastern
16    Promotions, in Schad, in Bolger, in case after case, the
17    Court has held, both under intermediate scrutiny and under
18    strict scrutiny -- particularly under strict scrutiny --
19    that the possibility of a functionally equivalent
20    alternative does not save the Government.  Here the
21    alternative is not functionally equivalent.  Let me say
22    why.
23              In news groups, chat rooms and listservs, you
24    are engaging in an interactive dialogue, a conversation,
25    in which you speak and the listeners reply and you can



                                                          36
 1    reply to what they say.  They can be outraged.  They can
 2    be offended.  They can have a good point to make.
 3              A Web site is static.  What the Government is
 4    saying is that the 40 million people who can speak in an
 5    interactive dialogue in the other modes of communication
 6    on the Internet should post a static message on their Web
 7    site.  And maybe the people who are in the news group
 8    would come to see it, maybe not.  But the speaker would
 9    not get any feedback.  There would be no dialogue.
10              Second, there are only 100,000 Web sites.  But
11    most of those do not have the screening capability that is
12    required to screen for age.  Only those Web sites that
13    have what is called CGI Script capability can screen for
14    age.  We know from the record that all of the 12 million
15    subscribers to the Internet who gain access through
16    America Online, Compuserve, Prodigy, Microsoft, the major
17    online service providers, those service providers provide
18    Web site to those 12 million subscribers, but not one of
19    those Web sites can have the capacity to screen for age.
20              So, in effect, there is a minuscule portion of
21    the population that -- for which it is technologically
22    possible to screen for age.
23              QUESTION:  Why are the others incapable of
24    screening for age?
25              MR. ENNIS:  Because the -- the unique ways that



                                                          37
 1    cyberspace works, you have to be able to have a computer
 2    software program that has a form that can be filled in,
 3    you can interrogate the listener who is trying to have
 4    access to your speech, and then you can have other data
 5    processing to figure out whether the listener can have
 6    access or not.
 7              That kind of software does not work, as the
 8    Government's expert conceded, on news groups, listservs,
 9    and chat rooms.
10              QUESTION:  Is that still true?  How long ago
11    were all of these technological conclusions arrived at? 
12    There are some aspects of cyberspace that didn't even
13    exist when -- when the hearing was held; is that right?
14              MR. ENNIS:  Justice Scalia, it is still true. 
15    The Government, in a highly unusual -- for the Government
16    -- has cited in its reply brief to the Washington Post and
17    NewsWeek, to suggest that it is possible to screen news
18    groups and chat rooms on Web sites today.  The fact that
19    the Government is forced to refer to extra-record material
20    shows there is no evidence in this record that you can.
21              And in fact, the Government is wrong.  It is not
22    possible, using a Web browser, which can gain access to a
23    news group, to screen for age, because news groups exist
24    in cyberspace on perhaps 200,000 different news group
25    servers.  And it would be necessary for the separate



                                                          38
 1    owners and operators of each of those servers to screen
 2    for age.  Otherwise, the speaker would not be protected.
 3              QUESTION:  Well, it could be done, then.  It
 4    could be done.  You're just saying it would defeat the
 5    purpose of some of these things.
 6              MR. ENNIS:  Your Honor, Chief Justice Rehnquist,
 7    it is technologically possible on some Web sites to screen
 8    for age.  But the -- the District Court also found as a
 9    fact that even on that small subset of Web sites, the cost
10    of screening would be economically prohibitive for all
11    speakers.
12              QUESTION:  What does it mean when they say
13    "prohibitively expensive" or "economically prohibitive"?
14              MR. ENNIS:  Let me try to --
15              QUESTION:  Those are value-laden adverbs.
16              MR. ENNIS:  Well, let -- let me try to explain,
17    Chief Justice.  The principal way to screen for age is
18    through use of a credit card.  If you are not a commercial
19    speaker, most credit card companies will not verify the
20    credit card at all, period, for any cost.
21              QUESTION:  So if you're a commercial speaker,
22    they will?
23              MR. ENNIS:  They will verify if you're a
24    commercial speaker.
25              QUESTION:  And what -- what do you mean by a



                                                          39
 1    "commercial speaker"?
 2              MR. ENNIS:  A speaker who is charging for access
 3    to his or her speech.  And that is a very small subset of
 4    all Internet speakers.  None of the enormous range of
 5    plaintiffs in this case is a commercial speaker.
 6              QUESTION:  Well, the credit card people will
 7    verify for the commercial speaker because he can pay for
 8    it or because --
 9              MR. ENNIS:  That's right.
10              QUESTION:  In other words, they would verify for
11    anyone who could pay for it?
12              MR. ENNIS:  Well, there are two questions -- two
13    points.  Most credit card companies simply will not verify
14    for any price for a noncommercial transaction.  They are
15    not set up to do that.  A few credit card companies will,
16    but the record evidence showed they charge a dollar per
17    verification for a noncommercial verification.
18              Now, if you are a speaker who wants to make your
19    speech available to 100,000 listeners, that means you, the
20    speaker, would have to pay $100,000 for the privilege of
21    speaking.
22              QUESTION:  Well, what about the first radio
23    people, you know, before the Federal Radio Act in 1927? 
24    I'm sure that imposed a lot of operating requirements on
25    radio stations.  And before that, they could just say,



                                                          40
 1    well, we like it the way it is.  The Government shouldn't
 2    have to tell us we've got to have all this equipment. 
 3    But, nonetheless, the Government did tell them, and that's
 4    certainly been upheld.
 5              MR. ENNIS:  Chief Justice Rehnquist, there is an
 6    enormous difference between some burden, some cost --
 7    which this Court has upheld in other contexts -- and a
 8    burden or cost that is economically prohibitive.  Let me
 9    continue to answer your question by saying that, for
10    example, there is evidence in this record that the
11    Carnegie Library, which has been used as an example, in
12    order to classify which of its speech is indecent and
13    which is decent within the meaning of this law, that would
14    require a human judgment and it would cost about $3
15    million to do that.
16              QUESTION:  And that's prohibitively expensive
17    for the Carnegie Library?
18              MR. ENNIS:  Yes, it is, Your Honor.  There is no
19    dispute on that in the record.
20              QUESTION:  Mr. Ennis --
21              QUESTION:  Well, I suppose it depends on how --
22    I mean on whether -- what is prohibitively certainly
23    depends to some extent upon the goal to be achieved.  I
24    mean we do stop individual citizens from running radio
25    stations, because of all the regulations, say it's



                                                          41
 1    prohibitively expensive, you can't run your own radio
 2    station.  And we say, well, you know, that's tough luck. 
 3    The goal to be achieved is everybody can't talk at once,
 4    so we have to limit the numbers and we have to have all of
 5    these technological requirements.  It's going to cost you
 6    $3 million, and we say that's too bad.
 7              Now, how valuable, how important is the goal to
 8    be achieved here?  Is it equivalently important?  Isn't
 9    that very much a policy judgment that Congress is able to
10    arrive at?
11              MR. ENNIS:  Let me answer that, Justice Scalia,
12    first, by saying and emphasizing that we did not challenge
13    this law insofar as it prohibits obscene speech, child
14    pornography, solicitation of minors, harassment of minors. 
15    That kind of speech was not challenged and is not enjoined
16    by the injunction below.  We are only talking about a much
17    different subset of speech that is called patently
18    offensive or indecent speech.
19              I want to emphasize that that standard is
20    broader than any standard this Court has ever upheld even
21    with respect to sale or display directly to a minor, and
22    is vastly broader than the standards applied in the 48
23    States which use a "harmful to minors" standard, which
24    requires that the speech be not only patently offensive
25    for minors, but also appeal to a prurient interest for



                                                          42
 1    minors and lack serious value for minors.
 2              QUESTION:  Mr. Ennis, there is one thing I don't
 3    want to lose before you go away from the prohibitively
 4    expensive point.  Would you comment on Mr. Waxman's
 5    argument that those who transmit and display could do so
 6    subject to a requirement that access be conditioned on an
 7    adult identification number?  Is that a response to the
 8    prohibitively expensive argument?
 9              MR. ENNIS:  Justice Souter, Mr. Waxman said
10    there was unrebutted evidence below.  If you'll look at
11    the court's opinion, the court -- what the court said was
12    the government presented virtually no evidence about these
13    third-party verification bureaus.  But what the evidence
14    does show is those third-party systems do not work at all
15    for listservs, news groups, chat rooms, all of the modes
16    of communication in cyberspace except the World Wide Web.
17              So those third-party bureaus effectively shut
18    down the 40 million speakers who use those other means of
19    communication.  They cannot be used in those other means
20    of communication.
21              QUESTION:  Would it be effective, in effect, in
22    all Web transmissions and display?
23              MR. ENNIS:  Not in all Web transmissions.  It
24    would only be effective in Web -- in a certain number of
25    Web transmissions.  But I -- I want to emphasize that one



                                                          43
 1    of the real democratizing and speech-enhancing attributes
 2    of the Internet is that average citizens can speak to the
 3    world for free.  In order to own your own Web site, the
 4    Government conceded, it would cost a thousand dollars to
 5    $10,000 to set up your own Web site, and then maintenance
 6    costs.
 7              So we're -- we're reducing the number of
 8    speakers dramatically.
 9              QUESTION:  Can you at some point -- Mr. Ennis,
10    could you at some point, at your choice, address the
11    question of severability?  In particular, I'm thinking is
12    it possible to narrow the statute perhaps far more
13    extremely than the Government would like, but to
14    commercial pornographers?  Is there a way of reading it so
15    it only applies to people who make significant amounts of
16    money out of selling pornography across the Internet?  Is
17    there some such construction?
18              MR. ENNIS:  Justice Breyer, the District Court
19    did focus on that question.  And it found that no such
20    limiting construction was possible for many reasons. 
21    First, the Act, by its terms, applies to both commercial
22    and noncommercial entities.  The legislative history makes
23    clear that Government intended to regulate both commercial
24    and noncommercial entities.
25              It applies, by its terms, to the speech of



                                                          44
 1    libraries and educational institutions.  None of whom, by
 2    the way, are regarded as pornographers in the common
 3    understanding of that term.
 4              It -- it is simply not possible to construe the
 5    statute that way.  And if you did, it would be a
 6    nonsensical construction.  Because before this Act was
 7    passed, the commercial pornographers already charged with
 8    credit card for access to their speech.  They don't make
 9    that speech available for free.
10              QUESTION:  How about narrowing the definition of
11    what's patently offensive?
12              MR. ENNIS:  Well, Your Honor, again, you would
13    have to do violence to the text of the Act and to the
14    legislative history.  Because Congress squarely --
15              QUESTION:  The Act just isn't specific.  It says
16    "indecent speech."  I don't know that it's all that clear
17    from the --
18              MR. ENNIS:  On the text of the Act, it's not,
19    Justice O'Connor.  But the conference report, at page 188
20    and 189, makes very clear that Congress expressly rejected
21    the more narrow "harmful to minors" standard, which would
22    require that the speech be not only patently offensive,
23    but also appeal to prurience and lack serious value.
24              Second, the conference report makes clear that
25    Congress intended to apply the Act under -- using the FCC



                                                          45
 1    broadcast standard for indecency that was at issue in the
 2    Pacifica case.  As the FCC said in Pacifica and as this
 3    Court noted, under that standard, speech can be found
 4    indecent even if it is not prurient and even if it has
 5    serious value.
 6              QUESTION:  Well, we construed the term "patently
 7    offensive" in our Denver Area opinions last term.
 8              MR. ENNIS:  Chief Justice Rehnquist, I think
 9    that, with respect to the vagueness argument, the Denver
10    Area case is dramatically different from this case. 
11    First, that case did not involve any criminal sanction
12    whatsoever and did not even involve any direct prohibition
13    on speakers.  It simply -- the only provision that was
14    upheld under a vagueness challenge simply permitted cable
15    operators, who have their own first amendment rights,
16    permitted them to exercise their own editorial judgment. 
17    And it even required that --
18              QUESTION:  Well, you might say that the -- what
19    the Court came up with in Denver maybe was too lenient for
20    a criminal statute, but certainly the term was construed
21    there.
22              MR. ENNIS:  It was, Chief Justice Rehnquist, but
23    it --
24              QUESTION:  It was construed in a quite limited
25    way, was it not?



                                                          46
 1              MR. ENNIS:  Let me answer it this way.
 2              QUESTION:  Was it construed, do you think, in a
 3    limited way?
 4              MR. ENNIS:  I don't think that the term was
 5    actually construed in any particularly limited way in
 6    Denver Area.  I think the Court didn't need to.  But --
 7              QUESTION:  I thought the Court adhered to
 8    Pacifica in -- in defining indecency.
 9              MR. ENNIS:  I think the Court did refer to
10    Pacifica, Justice Ginsburg.  Pacifica also, itself,
11    stressed that that case did not involve any criminal
12    sanctions at all.  An administrative slap on the wrist was
13    what was at issue.  And the Court, three times, said -- it
14    was emphasizing that the Court was not upholding a
15    prohibition of even broadcast indecency if it was
16    accompanied by a criminal prohibition.  That's what this
17    case does.
18              QUESTION:  Mr. Ennis, you did say in -- in your
19    opening that you were going to tell us about a less
20    restrictive, more effective means.  And I was intrigued by
21    that, and I hope, before your time is up, you will be able
22    to do that.
23              MR. ENNIS:  Yes.  I'd be very happy to turn to
24    that.
25              The court below found as a fact, at pages 32a to



                                                          47
 1    42a of the appendix to the jurisdictional statement, that
 2    there is a broad range of technologies and software
 3    programs that enable parents either completely to block
 4    all access to the Internet, if the parents are really
 5    concerned or, more selectively, to screen and filter
 6    access to the Internet if they want to allow their
 7    children to have access to certain parts of the Internet
 8    but not to others.
 9              QUESTION:  Those cost money, though, don't they?
10              MR. ENNIS:  Chief Justice Rehnquist, the basic
11    ones don't cost a thing.  Everyone -- all of the 12
12    million Americans who subscribe to the Internet through
13    the major online service providers get, at no additional
14    cost, the parental control options that all of the major
15    online service providers offer.  Using those options, by
16    clicking one box, you can completely prevent all access to
17    the Internet, including to foreign speech on the Internet,
18    which this law will not deter.
19              QUESTION:  So, there will be no cost involved in
20    any part of this alternative to the parents?
21              MR. ENNIS:  Not if the listener uses those
22    software programs.  No cost at all.  There are other
23    software programs, some of which are available for free
24    and some of which cost perhaps $30, which parents can use
25    to filter content in different ways.  The --



                                                          48
 1              QUESTION:  Well, Mr. Ennis, the Government says
 2    that these programs aren't effective.  And that's pretty
 3    much what the District Court concluded, too.
 4              MR. ENNIS:  Justice O'Connor, with respect, I
 5    don't think that's a fair characterization.  If you look
 6    at page 42a of the joint appendix, the District Court
 7    summarized by saying that these were effective, and there
 8    was reason to believe they would soon be more widely
 9    available.
10              Even the Government, if you look at pages 13 and
11    9 of the Government's reply brief, the Government
12    concedes, at page 13, that parents today, using these
13    software controls, can effectively prevent their children
14    from having access to any indecent speech, including
15    indecent speech posted abroad.  The Government's response
16    to that, however, is to say, well, yes, if parents want to
17    be really safe and secure, they can completely protect
18    their children; but that might deprive the children of
19    access to some parts of the Internet they should have
20    access to.
21              QUESTION:  Mr. Ennis --
22              MR. ENNIS:  That's not a first amendment
23    problem.  That's a parental judgment issue.
24              QUESTION:  Mr. Ennis, so much of your argument
25    is based upon what is currently available.  You know, I



                                                          49
 1    throw away my computer every 5 years.  I think most people
 2    do.  This is an area where change is enormously rapid.  Is
 3    it possible that this statute is unconstitutional today,
 4    or was unconstitutional 2 years ago when it was examined
 5    on the basis of a record done about 2 years ago, but will
 6    be constitutional next week?
 7              MR. ENNIS:  Not --
 8              QUESTION:  Or next year or in two years?
 9              MR. ENNIS:  Not as it is presently worded,
10    Justice Scalia.  Because the way it's worded now, it makes
11    it a crime for a speaker to make available on the Internet
12    speech that would be -- to display speech that would be
13    available to a minor.  And even if everybody agreed on a
14    tagging system and even if everyone's computer had a
15    browser that was set to read the tag, the speaker would
16    have no assurance that those browsers were set in that
17    way.
18              QUESTION:  But it depends on the -- on the
19    security of the safe harbor.  And how secure the safe
20    harbor is depends so much upon technology, I frankly think
21    that this case depends upon who has the burden of proof. 
22    I have no way of understanding --
23              MR. ENNIS:  Well, I'm glad you asked that
24    question, Justice Scalia.  Because --
25              QUESTION:  -- what is going to be what.  Now,



                                                          50
 1    who has it?  This is a distinctive kind of first amendment
 2    statute.  I don't know that we've ever adjudicated one
 3    like this, which -- which only prohibits speech which is
 4    prohibitable.  There's no doubt that you can prevent
 5    people from saying these things to minors.  And that's all
 6    that is prohibited.  The argument is not, as it was in
 7    Pacifica, you've not only prohibited communications to
 8    minors, you've prohibited communications to adults during
 9    those viewing hours.  That's not the case here.
10              The only thing prohibited is clearly
11    constitutionally prohibitable.  And your argument is, ah,
12    but in prohibiting what is prohibitable, you've done it in
13    such a fashion that you -- you needlessly, unnecessarily,
14    effectively prohibit non-prohibitable speech -- that is,
15    speech to adults.  That's -- that's a new case for us.
16              And I wonder whether it isn't true that you have
17    the burden of proof.  So long as the statute only says
18    we're prohibiting these communications to minors, it's
19    your burden to show that, in doing so, you're going to
20    affect adults.
21              MR. ENNIS:  Justice Scalia, that was an issue
22    below.  The Government conceded the Government had the
23    burden below.  That was an issue in the Shea case.  In
24    Shea, at 930 F.Supp.923, the Government concedes that it
25    bears the burden of proving that the display provision --



                                                          51
 1              QUESTION:  Well, we don't -- we don't decide
 2    cases here on the basis of concessions, Mr. Ennis.  I
 3    mean, that's an independent judgment that we make.
 4              MR. ENNIS:  That's correct, Chief Justice
 5    Rehnquist.  I didn't mean to suggest you'd be bound by the
 6    Government's concession.  I simply want to suggest that
 7    the Government has made that concession for very good
 8    reason.  The Government is attempting to regulate speech
 9    that is constitutionally protected for adults and some of
10    which is constitutionally protected for older minors.  It
11    bears the burden of justifying that regulation.
12              The Government conceded below and in the Shea
13    case that the display provision, standing alone, is an
14    unconstitutional ban on speech.  And it said that
15    provision is justified because of its argument that
16    speakers could use the affirmative defenses to communicate
17    indecent messages to adults, while shielding those same
18    messages from minors.  But the District Court below found
19    as fact that that is not so.  It is not technologically
20    possible for the vast majority of Internet speakers to use
21    those affirmative defenses.  Therefore, this law is a ban
22    on indecent speech in cyberspace.
23              Returning to the effectiveness point that
24    Justice Ginsburg asked, it's critical to note here that
25    the court below found as fact that about 40 percent or



                                                          52
 1    more of all speech on the Internet is posted abroad in
 2    foreign countries.  And that at least 30 percent of all
 3    indecent speech in cyberspace is posted abroad in foreign
 4    countries.  The Government's own expert acknowledged below
 5    that the CDA would have no impact on that foreign indecent
 6    speech, and that parents would have to rely on parental
 7    control technologies to shield their children from that
 8    foreign speech.
 9              QUESTION:  But if 70 percent is shielded and 30
10    percent isn't, what kind of an argument is that against
11    the constitutionality of the statute?
12              MR. ENNIS:  First, Chief Justice Rehnquist, I
13    think it's more like 50/50 today.
14              QUESTION:  Well, whatever the situation is.
15              MR. ENNIS:  Well, here's why.  It's -- suppose
16    we were talking about an enormous adult bookstore. 
17    Everything in the store is indecent.  And the Government
18    says, children can come into this enormous adult bookstore
19    and browse unsupervised, but we're going to remove half
20    the books, half the videos.  That would not, directly and
21    materially, advance the Government's interest of
22    protecting those children from access to indecent
23    materials.
24              QUESTION:  Well, it would certainly -- it would
25    certainly go halfway.



                                                          53
 1              (Laughter.)
 2              MR. ENNIS:  Well, Your Honor --
 3              QUESTION:  What about 500 bookstores, 500
 4    obscene bookstores, and the Government eliminates 250 of
 5    them; would that be no progress at all?
 6              MR. ENNIS:  If they're obscene, they can
 7    eliminate them all, Justice Scalia.  We don't challenge
 8    that.
 9              QUESTION:  Never mind obscene -- pornographic --
10              MR. ENNIS:  Pornographic --
11              QUESTION:  -- succeeds in excluding children
12    from 250 out of 500, that's no use?
13              MR. ENNIS:  Justice Scalia, the way the Internet
14    works, a child using a search engine can sit down at their
15    typewriter and they type in, if they want to go somewhere
16    -- and it's important to stress that in cyberspace,
17    listeners must affirmatively choose where they want to go. 
18    The Government's expert testified that the odds are slim
19    that a child would come across a sexually explicit site by
20    accident.  But if a child wants to go to an indecent site,
21    the child sits down and types in something like "triple-X
22    sex."
23              If that home computer is not using parental
24    control software, that search engine will go out there in
25    the world and list the triple-X sites that are available. 



                                                          54
 1    All the triple-X sites that are foreign will be listed
 2    there.  The kid then clicks the mouse, and they have
 3    access to all the indecent speech they could possibly want
 4    to see.
 5              The Government's interest here was not limiting
 6    children to 50 four-letter words a day instead of 100. 
 7    The Government's interest was protecting children from
 8    access to indecent speech at all.
 9              QUESTION:  Does this statute --
10              MR. ENNIS:  And this Act would be completely
11    ineffective in achieving that goal.
12              QUESTION:  Does this statute, with respect to
13    foreign speech, prohibit United States users to post
14    information that goes abroad?
15              MR. ENNIS:  It doesn't specifically address that
16    question at all, Justice Kennedy.  Which is a big problem. 
17    Because there was evidence in the record below that if
18    this law were upheld, so that it completely suppressed all
19    indecent speech by all domestic speakers, it would be very
20    simple for commercial purveyors of sexually explicit
21    speech to move all of their operations abroad.
22              And they don't even have to do that.  Using a
23    dedicated computer here, they can post the messages here. 
24    It goes to a foreign computer, an anonymous re-mailer, and
25    that speech then comes back to this country.  It seems, to



                                                          55
 1    all intents and purposes, it comes from a foreign country.
 2              QUESTION:  Why, just out of curiosity, is it not
 3    applicable to messages that emanate from abroad?
 4              MR. ENNIS:  It's not applicable, Your Honor,
 5    because, first of all, as a practical matter, the
 6    Government would not have personal jurisdiction over
 7    foreign speakers, and could not realistically expect --
 8              QUESTION:  Well, I mean if they came here. 
 9    Suppose they came here, they have assets here, et cetera.
10              MR. ENNIS:  Well, there may be one or two or 10
11    or 20 applications --
12              QUESTION:  Is it totally practically or is there
13    some legal reason?
14              MR. ENNIS:  Well, there are also legal reasons,
15    Your Honor.  This Court has indicated -- and Justice
16    Scalia's opinion for the -- that there are two canons of
17    statutory construction that are relevant here.  The first
18    is -- the first canon is that you do not presume that a
19    domestic law is intended to have extraterritorial effect.
20              Second, even if it is, you do not presume that
21    it does apply extraterritorially if that would create a
22    conflict with the laws of foreign countries.  And the
23    Government's own expert testified in this case that there
24    are many foreign countries in which the law that's
25    considered criminally indecent here would be perfectly



                                                          56
 1    lawful.  So there would be that --
 2              QUESTION:  So Congress could cure this
 3    constitutional defect as you see it simply by making it
 4    clear that the law applied everywhere?
 5              MR. ENNIS:  No, it wouldn't cure the second
 6    problem, Your Honor, because that would then be a conflict
 7    with the laws of those many foreign countries --
 8              QUESTION:  Well, but supposing the Congress said
 9    we don't care if there's a conflict?
10              MR. ENNIS:  Well, Congress could violate that
11    standard of statutory interpretation.
12              QUESTION:  Well, when Congress expressly
13    provides something, it's not violating a standard of
14    statutory interpretation.
15              MR. ENNIS:  Your Honor, I -- I agree that
16    Congress could have drafted a much different statute than
17    the one it drafted.  It could have drafted a statute that
18    did not apply at all to noncommercial speakers.  It did
19    not.  It could have drafted a statute that only applied to
20    visual images, not just four-letter words.  It did not. 
21    It could have drafted a statute that was, in many
22    respects, narrower than the statute at issue here.  It
23    could have limited it to prurient speech that lacked
24    serious value.
25              QUESTION:  But I'm talking about broader



                                                          57
 1    statute.  A broader statute, in that respect, saying that
 2    it was all over the world that it applied, would cure this
 3    one constitutional defect that you're talking about.
 4              MR. ENNIS:  It would take care of that defect. 
 5    But that's not the statute we have before us.
 6              QUESTION:  Well, I'm not sure.  While I
 7    certainly agree that normally statutes are not interpreted
 8    to be extraterritorial, I don't know that we've ever had a
 9    case in which it has been asserted that the difference
10    between the constitutionality and unconstitutionality of
11    the statute is whether it is extraterritorial.  I think if
12    the only way to make it constitutional is to interpret it
13    as being extraterritorial, I'm not sure that we wouldn't
14    say, well --
15              MR. ENNIS:  Justice Scalia, this is not that
16    case.
17              QUESTION:  I mean if that's your only argument,
18    I'm saying --
19              MR. ENNIS:  It's not -- it's not the only
20    argument.  It's not the only argument at all.
21              QUESTION:  I think it's a pretty weak argument.
22              MR. ENNIS:  But it's not the only argument at
23    all, Justice Scalia.  Our argument --
24              QUESTION:  I thought you were making the point
25    that it would be ineffective because --



                                                          58
 1              MR. ENNIS:  That's correct.
 2              QUESTION:  -- but not unconstitutional.
 3              MR. ENNIS:  It would be ineffective for that
 4    reason.
 5              QUESTION:  But --
 6              MR. ENNIS:  But even if -- excuse me, Justice --
 7              QUESTION:  -- you did bring up an interesting
 8    point.  Are there other nations that have regulated
 9    indecent speech in cyberspace?
10              MR. ENNIS:  Not that I know of, Justice
11    Ginsburg.  There may be.  But there are other nations that
12    have attempted to regulate the content of speech in
13    cyberspace.  China attempts to regulate speech that's
14    critical of the Chinese Government.  It's not
15    inconceivable that Iran might attempt to regulate speech
16    that's critical of religious --
17              QUESTION:  And might want to control the world
18    with respect to that, to rule the world with respect to
19    the kind of speech that that nation doesn't like?
20              MR. ENNIS:  Well, Justice Ginsburg, I think --
21    in fact, the Chamber -- U.S. Chamber of Commerce filed an
22    amicus brief in this case, criticizing this law for
23    precisely that reason -- that this law sends precisely the
24    wrong signal.  That it is appropriate for governments, in
25    their own interest, to ban whatever speech they want to



                                                          59
 1    ban from a global medium, which will cripple the
 2    competitiveness of U.S. business in competing in this
 3    increasingly important business --
 4              QUESTION:  I suppose we better let obscenity in,
 5    too, then?
 6              MR. ENNIS:  No --
 7              QUESTION:  That's just the point.
 8              QUESTION:  If that's a global principle --
 9              MR. ENNIS:  I don't think obscenity --
10              QUESTION:  Right.
11              QUESTION:  -- if we shouldn't ban stuff that we
12    don't like, it would apply to obscenity.
13              MR. ENNIS:  I don't think obscenity is
14    considered appropriate or lawful speech in any country
15    that I'm aware of.
16              QUESTION:  Well, but I do think it's a weak
17    argument to say that the United States, if it has a strong
18    public policy, cannot lead the way, and maybe other
19    nations would follow.  I think your argument is -- is not
20    your strongest argument.
21              MR. ENNIS:  No, that's not our strongest
22    argument.  Our strongest argument, Justice Kennedy, is
23    that this law will have the unconstitutional effect of
24    banning indecent speech from adults in all of cyberspace. 
25    For 40 years, this Court has repeatedly and unanimously



                                                          60
 1    ruled that Government cannot constitutionally reduce the
 2    adult population to reading and viewing only what is
 3    appropriate for children.  That is what this law does.
 4              In Sable, this Court, in the telephone context,
 5    struck down a law that had precisely that effect.  It
 6    banned telephone indecent speech.  And that had the
 7    unlawful effect of banning that speech from adults, as
 8    well as from minors.  This Court unanimously struck that
 9    down.
10              And to answer Justice Breyer's question about
11    telephone, I do not believe it is a crime in this country
12    today for private persons, including private teenagers, to
13    communicate indecent speech by telephone.  It would be a
14    crime to communicate exactly the same speech under the
15    CDA.
16              So, returning, the principal arguments we have
17    is that this is a ban on adult speech.  It is not going to
18    be effective, for the reasons I've expressed, about all of
19    the foreign indecent speech.  And even if it were
20    effective, there are less-restrictive alternatives that
21    enable parents, completely, to decide what they think is
22    appropriate for their 17-year-old, as opposed to their
23    16-year-old.
24              Under this law, there is no parental choice. 
25    The Government decides what's appropriate for all


                                                          61

 1    17-year-olds.  A parent who disagrees with the Government
 2    cannot, through the Internet, gain access to speech, safer
 3    sex information, very similar to the information at issue
 4    in the Bolger case.  That parent would have no
 5    opportunity, using the Internet, to make that speech
 6    available to the parent's 17-year-old child.
 7              And even worse than the hypothetical you asked,
 8    Justice Souter, about the "knowingly permit" provision,
 9    under the plain language of this statute, it would be a
10    crime, 2 years in jail, for a parent to send an indecent
11    E-mail message to the parent's 17-year-old college
12    freshman son or daughter.  That's a direct transmission,
13    not just a permitting the use.  The parent would -- would
14    be committing a criminal act to do that.
15              QUESTION:  Mr. Ennis, do you think it would be
16    constitutional to require all transmitters to tag their
17    material?
18              MR. ENNIS:  Well, I think it would raise
19    significant compelled speech questions, Justice Stevens. 
20    Whether it be constitutional or not, I don't know.  But
21    even if that were required, that would not --
22              QUESTION:  If it's not, then that's not a
23    less-restrictive alternative?
24              MR. ENNIS:  Well, it wouldn't be a
25    less-restrictive alternative under the way this law is



                                                          62
 1    worded.  Because this law makes it a crime to make speech
 2    available.
 3              QUESTION:  No, I'm assuming you just start from
 4    scratch, with a law that requires that as the principal
 5    means of screening.
 6              MR. ENNIS:  I think -- I think what would be
 7    constitutional is what this Court found would be
 8    constitutional in Denver Area.  And that is encouraging,
 9    facilitating parents to use the parental control options
10    that are readily available to them right now.  If parents
11    use the software tools they have, they can block or screen
12    all indecent speech.
13              QUESTION:  Nothing with any teeth in it?
14              MR. ENNIS:  Well, you could --
15              QUESTION:  They're not readily available without
16    labelling.  That's the problem.
17              MR. ENNIS:  No, no --
18              QUESTION:  Without tagging.
19              MR. ENNIS:  That's wrong, Justice Scalia.  Right
20    now -- I'm a parent.  I subscribe to one of the major
21    online service providers.  I clicked the kid's only box. 
22    And that means my child does not have any access to the
23    Internet unless I'm there to supervise.
24              QUESTION:  Does the Government have any interest
25    in protecting children who do not have parents available


    
                                                      63
 1    in the home or do not have adequate parental supervision?
 2              MR. ENNIS:  Well, Justice Kennedy, we do not
 3    dispute that the Government has a legitimate interest in
 4    protecting some children from some forms of speech that
 5    could be found indecent.  But the problem with this law
 6    is, in order to achieve that objective, it completely bans
 7    all of that speech from adults and also bans it from the
 8    substantial portion of minors who themselves have first
 9    amendment rights, under Bolger and Erznoznik, to have
10    access to the banned speech.
11              QUESTION:  Mr. Ennis, if I had to be present
12    whenever my 16-year-old is on the Internet, I would know
13    less about this case than I know today.
14              (Laughter.)
15              QUESTION:  That is simply not a realistic
16    possibility -- to tell every parent, if you're worried
17    about it, just don't let your teenager use the Internet
18    unless you're there.
19              MR. ENNIS:  That's the point, Justice Scalia.
20              QUESTION:  That's not reasonable.
21              MR. ENNIS:  That's the point.  The parental
22    control devices that are available on the Internet are
23    more effective than any control devices available for
24    broadcast TV, cable or telephone, because the parents
25    don't have to be there.

    
                                                      64
 1              QUESTION:  Thank you, Mr. Ennis.
 2              MR. ENNIS:  Thank you, Mr. Chief Justice.
 3              QUESTION:  Mr. Waxman, you have a minute
 4    remaining.
 5                REBUTTAL ARGUMENT OF SETH P. WAXMAN
 6                      ON BEHALF OF APPELLANTS
 7              MR. WAXMAN:  I have five points.  I will try and
 8    make them very quickly.
 9              The burden of proof -- this is an act of
10    Congress that's being challenged on its face -- the burden
11    of proof, under long precedent, is with the party
12    challenging it.  That's verified by Federal Rule of
13    Evidence 301, and this Court's precedence in Walters and
14    Hicks v. St. Mary's Honor Center.
15              With respect to the classification burden on the
16    Carnegie Library, this Court's precedence in the obscenity
17    context have indicated that there is no obligation for the
18    Carnegie Library to read every one of its books in order
19    to decide it has to be classified.  In order to prove a
20    criminal case, we have to prove that the defendant
21    actually knew the content.  So the Carnegie Library only
22    has to do what it has to do under its local ordinance,
23    which is take the indecent stuff and put it in a different
24    room.
25              This is the electronic equivalent of that.


                                                          65
 1              QUESTION:  But that's' not true under the
 2    display -- that's not true under the display provision
 3    here, is it?
 4              MR. WAXMAN:  It is true under the display
 5    provision.  That is, if they find that they have certain
 6    --
 7              QUESTION:  I thought that was not a knowing
 8    offense?
 9              MR. WAXMAN:  Excuse me?
10              QUESTION:  The display provision is not a
11    knowing offense.
12              MR. WAXMAN:  Well, you have to knowingly display
13    it.  And it, in the context -- if I may just finish this
14    point -- it, in the context of this Court's decisions in
15    the patently offensive prong of the obscenity context, has
16    said that whatever the standard of proof, whatever the
17    scienter is, you may not, as a constitutional matter,
18    convict somebody unless you prove not that they knew that
19    it was pornographic, but that --
20              CHIEF JUSTICE REHNQUIST:  I think you've -- I
21    think you've -- Mr. Waxman, I think you've answered the
22    question.
23              MR. WAXMAN:  Thank you.
24              CHIEF JUSTICE REHNQUIST:  The case is submitted.
25         (Whereupon, at 11:18 a.m., the case in the above-entitled matter was submitted.)

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