Defendants' Closing Arguments May 10, 1996 Anthony Coppolino and Jason Baron representing Janet Reno and the Department of Justice 21 THE COURT CLERK: Court is now in session, please be 22 seated. 23 MR. COPPOLINO: Good morning, your Honors. 24 JUDGE DALZELL: Good morning, Mr. Coppolino. 25 MR. COPPOLINO: Your Honors, just first by way of a 77 1 couple of procedural points, whatever the Court's wishes are 2 in terms of our having rebuttal time, if you would permit us 3 I would reserve ten minutes if you could -- 4 JUDGE SLOVITER: Why would you have rebuttal time? 5 MR. COPPOLINO: Well, that's -- if you want them to 6 have the last word then that's fine with me. 7 JUDGE SLOVITER: No, that's not the question as to 8 whether we want them to have the last word, you didn't call 9 it, this is not an appeal, you didn't cross-appeal. 10 MR. COPPOLINO: I understand. 11 JUDGE SLOVITER: And I didn't understand the whole 12 thing about surrebuttal. 13 JUDGE DALZELL: There's no counterclaim, at least 14 that I've seen. 15 MR. COPPOLINO: Okay, then forget that then. I 16 think -- 17 JUDGE SLOVITER: Good try. 18 (Laughter.) 19 MR. COPPOLINO: I had to try. 20 That being the case, Mr. Baron and I will divide the 21 argument essentially along the lines that Mr. Hansen and Mr. 22 Ennis divided it. I do expect that I will cross over a bit 23 into Mr. Ennis' area to talk about the safe harbor defense 24 concerning credit cards and access codes and the parental 25 control software is the least restrictive alternative with 78 1 respect to that. 2 Given the amount of time we have, you know, I would 3 expect to go for about an hour on my time and then Mr. Baron 4 would have about an hour thereafter. 5 JUDGE SLOVITER: You will forgive us if we don't 6 keep in our minds what the break of the -- of you both is and 7 if we ask you questions that -- I'd rather you not say well, 8 Mr. Baron's going to handle that. It's the frustration of 9 having two arguers rather than having one that you can do 10 unless it's something that really Mr. Baron promises to get 11 to. 12 MR. COPPOLINO: Yes. Well, the only area, I think 13 it's a very discrete area having to do with the defenses for 14 the non-commercial providers concerning tagging, labeling-- 15 JUDGE SLOVITER: Yes. 16 MR. COPPOLINO: -- registering, Dr. Olsen's areas, 17 there's some crossover. And I'll, if I feel like he could 18 have the better handle on it, I'll just -- 19 JUDGE SLOVITER: Okay. 20 MR. COPPOLINO: -- so indicate. 21 JUDGE SLOVITER: Are you finished the procedure? 22 MR. COPPOLINO: Yes, I am, your Honor. 23 JUDGE SLOVITER: Good. Mr. Coppolino, I would like 24 to know because I'm not satisfied that I fully understand at 25 this point what is the Government's position as to what the 79 1 statute, A and D, let's leave aside C, what the statute 2 covers. 3 MR. COPPOLINO: I take it by your question, your 4 Honor, you are specifically asking about the indecency 5 standard, what types of speech it covers. 6 JUDGE SLOVITER: No, I'm asking about -- that's my 7 second question which is whether they really are the same 8 thing, but what do you understand -- I read your brief very 9 carefully, I even indexed it all myself, no law clerks, what 10 do you -- 11 (Laughter.) 12 JUDGE SLOVITER: -- what is your position as to what 13 is covered by the statute? 14 MR. COPPOLINO: The statute, I -- I would say on its 15 face covers indecent, that is patently offensive 16 communications over a telecommunications device in 223(A) and 17 an interactive computer service in 223(D). And therefore it 18 could cover communications across various media, Web sites, 19 Usenet groups and so on that might be within that standard of 20 patently offensive. So -- 21 JUDGE SLOVITER: And is that the way we have to read 22 the statute? 23 MR. COPPOLINO: I don't think that's the way you 24 necessarily have to construe it and I think as you may 25 discern from our brief an important point we would make to 80 1 the Court, principally in connection with the substantial 2 over-breadth argument is that if there are some applications 3 that give the cause concern that the Court would have to look 4 to whether the plainly legitimate sweep of the statute is 5 substantial or whether the applications that you consider 6 might be unconstitutional are substantial in comparison to 7 the plainly legitimate sweep. 8 I'm jumping ahead a bit, but -- 9 JUDGE SLOVITER: No, well, but I think we have to 10 get, because everything else will follow, I assume everything 11 else follows from what you claim is covered. 12 Now, do you claim -- I'm going to ask you a series 13 of questions if my colleagues will permit because -- do you 14 claim that A and D, the patently offensive and the indecent 15 provisions are the same? 16 MR. COPPOLINO: Yes, I do, your Honor. 17 JUDGE SLOVITER: Now, then I want to know if that's 18 so, I mean how can you do that in light of the language? For 19 example, D talks in terms of communications that describe 20 sexual or excretory activities or organs. Is that anywhere 21 in A? 22 MR. COPPOLINO: It is not specifically defined in A. 23 Here is my position on that -- 24 JUDGE SLOVITER: Yes. 25 MR. COPPOLINO: -- point, your Honor. Our position 81 1 is that as the courts have construed the term indecent or 2 indecency, that the meaning for that term, the standard, if 3 you will, has been communications which in context describe 4 sexual or excretory activities or organs in a patently 5 offensive way. 6 In Pacifica case, for example, the standard, the 7 statute at issue specifically used the word "indecent." 8 That's all that it had. And the FCC interpreted the standard 9 to mean patently offensive communications of sexual or 10 excretory activities in every other case that has interpreted 11 the decency standard has interpreted it to mean that. So 12 that's our position. 13 JUDGE SLOVITER: Yeah, but -- 14 JUDGE BUCKWALTER: Okay, you have the same -- I know 15 you have the same question, I guess. 16 JUDGE SLOVITER: Go ahead, you go ahead. 17 JUDGE BUCKWALTER: There's -- there's no other act 18 though quite like this one, is there, where you have in the 19 one section the indecent and in another totally different 20 section dealing with a totally different subject because 21 you're not dealing with telecommunications in D, you're 22 dealing with interactive computer. You have a totally 23 different prohibition, okay? So there's nothing quite like 24 this before, has there? 25 MR. COPPOLINO: No, there's nothing quite like this 82 1 statute before, no, your Honor. 2 There is -- there is -- 3 JUDGE BUCKWALTER: I guess that's a -- 4 MR. COPPOLINO: I don't think it's totally different 5 though, Judge. I would say that, as we had a separate brief 6 on this issue of what is the difference between 7 telecommunica-- telecommunications device and interactive 8 computer service and I -- 9 JUDGE BUCKWALTER: But the statute itself says 10 something, doesn't it, or did I misread that, that the 11 interactive computer is not telecommunications? 12 MR. COPPOLINO: It's not, it's not 13 telecommunications device, but the point I was going to make 14 is that a transmission of a communication all through the use 15 of a modem, say, over a computer system would be covered by 16 A, and therefore we don't think it's that different. 17 I recognize there are some -- there are some 18 legislative craftsmanship problem here in that they didn't, 19 didn't have a separate section which says definition indecent 20 or so on, but I think there is so much case law -- 21 JUDGE BUCKWALTER: You might not even have to have 22 that if you didn't have two different, plain different words 23 there. 24 JUDGE DALZELL: But doesn't the conference report 25 make it clear that they do have the same meaning? 83 1 MR. COPPOLINO: I think so, your Honor. I think-- 2 JUDGE DALZELL: Because the conference report makes 3 it absolutely clear that these terms are taken from Pacifica 4 and Sable, doesn't it? 5 MR. COPPOLINO: Well, I think it does, it referred 6 to the definition of indecency as its been con-- as its been 7 construed in Pacifica and Sable. 8 JUDGE SLOVITER: Well, I want the Government's 9 position. I mean we'll get each other's, yeah, afterward. 10 MR. COPPOLINO: That is our position. That is our 11 position, that when we are talking about the indecency 12 standard in 223(A), the word "indecent" or the patently 13 offensive provision in 223(D), we are talking about the 14 indecency standard as it has been construed and understood by 15 the Courts from Pacifica, Sable, the Dial-A-Porn cases and so 16 on. 17 JUDGE SLOVITER: So you want us to write into A the 18 words describing sexual or excretory activities or organs? 19 MR. COPPOLINO: Well, yes, your Honor. 20 THE COURT: But they're not in there. 21 MR. COPPOLINO: Yeah, I -- I don't think that is an 22 enormous task of statutory construction based on our 23 representation as well as the legislative history but yes -- 24 JUDGE SLOVITER: Well -- 25 MR. COPPOLINO: -- I think you should interpret 84 1 indecent in A as patently offensive descriptions of sexual or 2 excretory activities. I don't know how else it would be -- 3 JUDGE SLOVITER: Does that give notice to the 4 required notice in a criminal statute to all the people who 5 may be subject to this? 6 MR. COPPOLINO: I think it -- I think it certainly 7 would give substantial notice because obviously as part of 8 the process we have a legislative process and we have a 9 process whereby the Federal Courts undertake a constitutional 10 interpretation of it and I think that that interpretation 11 just on that point would be fully consistent with a broad 12 array of case law discussing the indecency standard and what 13 that standard specifically means, particularly where I don't 14 think there's any disagreement between the parties and I 15 don't think that there is any case law to suggest that there 16 would be some different meaning to the word indecent in 17 isolation. 18 JUDGE SLOVITER: Okay. And you want us also, as I 19 read your brief, to read the statute to have a built-in 20 exception for works of value. Let me -- that's a sort of a 21 paraphrase of what your brief says. Is that correct? 22 MR. COPPOLINO: I'm sorry, I can't really agree with 23 that characterization, your Honor, it's too broad an issue. 24 And if I could just try to explain it, I would -- 25 JUDGE SLOVITER: Sure, I would certainly like to 85 1 hear that -- keep to that in light of the legislative 2 history-- 3 MR. COPPOLINO: Yes, I will do that. 4 JUDGE SLOVITER: -- which says we won't accept such 5 a exemption. 6 MR. COPPOLINO: Yes, I understand, I understand your 7 question and let me try to get to it as directly as I can. I 8 think that obviously the first major line of attacks by the 9 plaintiffs in trying to demonstrate that the statute 10 effectively bans speech is not only that it's over-broad 11 across applications but the indecency standard covers a broad 12 array of speech. 13 And while arguing at the same time that we are 14 trying to narrowly construe it, that we have equated it to 15 pornography, that is really not what we have attempted to do. 16 We are asking the Court to construe that standard in the 17 context in which it's been applied by Congress and upheld by 18 the courts. 19 For example, it has been applied by Congress in 20 regulating Dial-A-Porn, it has been applied by Congress in 21 regulating cable and leased access television to materials 22 that clearly constitute the type of sexually explicit 23 materials that one could characterize as pornography. 24 And our point is that it's not simply anything about 25 sex or anything with an expletive, the parameters are fairly 86 1 specific. It has to first concern sexual or excretory 2 activities, not just any kind but patently or obviously 3 offensive material. Now, that can include pornography. It 4 can also include what we would consider to be shocking, 5 offensive or vulgar textual discussions such as were at issue 6 in the Pacifica case and we're not suggesting otherwise. 7 Certainly the language on a number of the cites that 8 we provided to you have that type of language, but I -- 9 JUDGE DALZELL: Let's put some flesh on it because 10 it, in terms of what the Government's position is because I 11 share Chief Judge Sloviter's befuddlement on this point. 12 JUDGE SLOVITER: I'm not sure I would describe 13 myself -- 14 JUDGE DALZELL: Well, all right, then I will 15 describe it for myself as that. 16 (Laughter.) 17 JUDGE DALZELL: I asked counsel on the other side 18 about the Merrill Hansen decision, okay? If the Merrill 19 Hansen dialogue between those two disc-jockeys about Jim 20 Baker's alleged rape of Jessica Hahn, if that had taken place 21 on the Internet, okay, would that be indecent under the CDA 22 and therefore subject those two gentlemen plus the station to 23 criminal sanctions? 24 MR. COPPOLINO: I think if you -- I re-read the case 25 after you had referenced it and I think that is probably the 87 1 hardest case, I've read all of the FCC materials that you had 2 talked about because it was obviously a very explicit 3 description, but then they stopped and said hey, this is 4 serious, this woman was being raped. 5 And I would say to the Court that in the broadcast 6 context, as I think we've made clear, the standard is much 7 less tolerant. Judge Sloviter explained this in a fabulous 8 case, in that context you're going to get away with an awful 9 lot less and your First Amendment freedoms are more limited. 10 So I don't think I can say that that discussion 11 would necessarily be indecent, although prior to the point 12 where they got to, hey, wait a minute, maybe we shouldn't be 13 making jokes about this, this is a serious situation, it was 14 a fairly explicit discussion. 15 But I'd like to make this point to the Court in 16 respect to the FCC adjudication because I think that is 17 helpful in trying to understand the standard. Even in the 18 area of broadcast where First Amendment freedoms are most 19 limited and where there is the least tolerance, I think that 20 the FCC decisions reflect a very serious intent to limit the 21 indecency standard to patently offensive and shocking 22 materials that are taken, for example, out of context. 23 JUDGE DALZELL: But that's why I'm concerned about 24 the Hansen case. We have 94 U.S. Attorneys, I think, at 25 least 94 cause there's 94 districts, okay, that at least one 88 1 of them or one of your colleagues in Washington such as the 2 gentleman who was in recent contact with Compuserve will look 3 at Hansen or the language of this and say let's convene a 4 Grand Jury. 5 Now, you know, if a party hears the words Grand Jury 6 convened about me, it will really ruin their day, wouldn't 7 you agree? 8 MR. COPPOLINO: Yes, I -- 9 JUDGE DALZELL: So that the fact that a jury later 10 on, that a jury later on will say oh, acquitted, that's not a 11 lot of comfort, is it? 12 MR. COPPOLINO: Your Honor, I think that we cannot 13 provide assurance that there might not be a prosecutor that's 14 going to take the most absurd case or very extreme case and I 15 think that in assessing -- 16 JUDGE DALZELL: Is this an absurd case? 17 MR. COPPOLINO: No. 18 JUDGE DALZELL: Hansen, I mean, this is the Federal 19 Communications Commission did this. Did they do an absurd 20 thing? 21 MR. COPPOLINO: I indicated just a moment ago that I 22 felt that the standard would be tighter in the broadcast 23 context and that in many other cases that they have decided 24 in the broadcast context it is very clear that they are 25 focusing on patently offensive stuff taken out of context. 89 1 But to answer your question, in the context of the 2 facial challenge I think the Court has to construe the 3 indecency standard in a manner consistent with how it's been 4 applied by the Congress and the courts. That's not to say 5 that there aren't going to be hard cases. Those hard cases 6 should not take the whole statute down, they should simply be 7 left for admittedly a difficult as applied challenge. 8 But we can show, I believe it's fair to say, that 9 the indecency standard as it has been applied and construed 10 covers a fairly narrow category of speech. 11 JUDGE SLOVITER: I still don't understand whether 12 that narrow category of speech covers work that some people 13 would consider to be of value. Take, for example, the play 14 that was in two parts on Broadway about AIDS. 15 JUDGE DALZELL: Lost in America? 16 JUDGE SLOVITER: The two -- 17 JUDGE DALZELL: Angels in America. 18 JUDGE SLOVITER: Angels in America. Now, a lot of 19 people might be offended by that -- leave aside Shakespeare 20 and leave aside Chaucer which we know from the book content 21 and leave aside "Catcher In The Rye" which we know from the 22 print media are considered offensive in some media and go to 23 a more contemporary type of literature that some people would 24 think is serious and some people would think is 25 objectionable. 90 1 If that were printed in, you know, print on the 2 Internet, Mr. -- Pittsburgh Library -- 3 JUDGE DALZELL: Dunninberger (ph.). 4 JUDGE SLOVITER: Yeah, would that be covered or 5 would there be a built-in non-specified defense that says 6 this is a serious work? 7 MR. COPPOLINO: Two points, your Honor. 8 JUDGE SLOVITER: Yes. 9 MR. COPPOLINO: Our point is that yes, material that 10 might be found indecent might also be considered to have 11 serious value. The plaintiff's position seems to be is that 12 indecency covers all works that have serious value and that's 13 where really we are disagreeing. We -- because I don't 14 believe that's necessarily the case as you parse the 15 standards in the obscenity and indecency area that you have 16 to conclude, as they have, that indecency necessarily 17 includes serious material and necessarily excludes material 18 that has prurient appeal. That's where our disagreement is. 19 The answer to your question is yes, it's possible 20 that something that is serious in some way could be indecent. 21 Our point with respect to the -- 22 JUDGE SLOVITER: And it certainly deals with sexual, 23 I saw half of it, sexual or excretory activities or organs. 24 MR. COPPOLINO: Yes, but our point with respect to 25 plaintiff's materials, first of all, is that what they have 91 1 presented in context in its full context is -- is serious 2 material that ought not to be found and should not be found 3 indecent. And I have to say to your Honor that if you're 4 just going to talk about a play on AIDS, the whole play in 5 context, it has serious value. 6 If you're going to talk about, as in one of the FCC 7 cases, taking specific stuff out and putting that out there 8 and making it available, then the context is completely 9 changed. So it's very difficult to answer the question well, 10 is all serious -- is all serious work covered by the 11 indecency standard. 12 JUDGE SLOVITER: But that's not the question. That 13 may be their question, but that's not my question. My 14 question is does the -- and we're not bound by anything that 15 the plaintiffs say, that may also be extreme. 16 My question is simply as a matter of notifica-- one 17 is a matter of the First Amendment and two is a matter of 18 notification because it's a criminal statute. To the world 19 out there what does this statute read or reasonably read to 20 those people so that if somebody wants to send somebody else 21 a paragraph or a scene from a contemporary play, is that 22 person and the other person is 17, is that covered by the 23 statute? And I still don't have a yes or a no from you. 24 MR. COPPOLINO: Well, the problem is I don't know 25 that I can say yes or no to a categorical question that is 92 1 serious material covered because the application of the 2 indecency standard depends on the specific communication and 3 its context. 4 I got in -- we kind of got into this thicket for two 5 reasons: one is they're coming in saying that anything having 6 to do with sex, whether it's a reference in Bible, the Bible 7 or Shakespeare, breast cancer, breast feeding, so on-- 8 JUDGE SLOVITER: Leave them out of it and just -- 9 MR. COPPOLINO: Fine, okay. 10 JUDGE SLOVITER: -- talk to the three of us at this 11 point. 12 MR. COPPOLINO: I think the material -- 13 JUDGE SLOVITER: And the three of us want to -- I 14 think the three of us want to know how broadly this statute 15 reads. 16 MR. COPPOLINO: Then our position would be that the 17 statute should apply to non-obscene patently offensive 18 material, sexual -- concerning sexual and excretory 19 activities of the nature that Congress has indicated that it 20 is targeting, namely the sexually explicit sites on the 21 Internet and of the nature that Congress has targeted and the 22 courts have recognized in other cases such as Dial-A-Porn and 23 the Act Two -- the Act Three in the Alliance case, materials 24 of that nature. 25 Clearly, your Honor, I think it's fair to say that 93 1 the target of the indecency standard has been materials with 2 very little value, with significantly little, with 3 significant or -- 4 JUDGE DALZELL: But who determines that, the 94 U.S. 5 Attorneys? 6 MR. COPPOLINO: I think it starts in the first 7 instance and in the face of a vagueness challenge here with 8 the Court construing the standard as it has been applied by 9 Congress and as it has been reasonably applied by the Courts 10 who have considered similar cases. 11 JUDGE SLOVITER: But they're not criminal, by and 12 large. 13 MR. COPPOLINO: Well, by and large. The Dial-A-Porn 14 statute is a criminal statute with a regulatory overlay but, 15 yes, they are predominately not criminal. But I think that 16 again I would start with the point that this is not a 17 completely open-ended standard, there are parameters here. 18 First of all, you have to have sexual or excretory activities 19 or organs. That's minimum that has to be in the 20 communication. 21 JUDGE SLOVITER: Even though A doesn't so state? 22 MR. COPPOLINO: Well, yes, I understand. Well, I 23 understand that, your Honor, but there's nothing -- 24 JUDGE SLOVITER: I mean you're asking us to be the 25 activist Judges that Congress ex-- that some members of 94 1 Congress excoriate because you're asking us really, Mr. 2 Coppolino, to rewrite the statute. 3 MR. COPPOLINO: Well, I -- 4 JUDGE SLOVITER: To put words into the statute that 5 aren't there. And at least I want to know clearly what words 6 you think we ought to put in and your brief suggests, for 7 example, we should put in prurient, you know, that -- 8 commercial, the kind of -- that it's really intended to hit 9 what already is being hit. And what I'm trying to find out 10 is what more is in this statute than in, already in 18 USC. 11 MR. COPPOLINO: Right, your Honor, I -- 12 JUDGE SLOVITER: And I know your position is 13 difficult, especially when I come at you like -- when all 14 three of us come at you like that, but -- but we really want 15 to understand. 16 MR. COPPOLINO: And I understand and I'm not -- 17 JUDGE SLOVITER: And we know it comes like you say 18 with the overlay of constitutionality and Congress has sorted 19 out, we know all that. And you know it's very rare that we 20 declare a statute unconstitutional. 21 MR. COPPOLINO: You don't have to rewrite the 22 statute, you don't have to be activist Federal Judges 23 legislating and I'm not asking you to do that. With respect 24 to the indecency standard, I think that's a fairly simple 25 task of statutory construction to say that the word indecent 95 1 means what every court that has considered an indecency 2 challenge has understood it to mean. That's our view, at 3 least, that it's fairly simple to do that. 4 With respect to the over-breadth issue, the over- 5 breadth issue goes to whether or not the statute, the 6 statute's potentially unconstitutional applications are 7 substantial in comparison to its plainly legitimate sweep. 8 Our point on that is that it's plainly legitimate 9 sweep -- 10 JUDGE SLOVITER: Is what? 11 MR. COPPOLINO: Is enormous and is very substantial 12 and substantially outweighs what might be considered to be 13 potential problem areas, due to potential problem areas. And 14 let me -- 15 JUDGE SLOVITER: What is its plainly legitimate 16 sweep that is not already covered by the two provisions in 18 17 USC? 18 MR. COPPOLINO: Your Honor, the plainly legitimate 19 sweep is -- 20 JUDGE SLOVITER: That is not already covered. 21 MR. COPPOLINO: Yes. 18 USC does not cover indecent 22 materials, it covers obscenity and child pornography. And 23 this statute extends that to materials that would fall within 24 the indecency standard. 25 JUDGE SLOVITER: And what is indecent? 96 1 MR. COPPOLINO: Well, your Honor, let me go back to 2 the point and try to explain it this way because -- 3 JUDGE SLOVITER: And not only what is indecent, 4 where does it have to be viewed as indecent, in other words, 5 in what community? Would you take those two questions -- 6 MR. COPPOLINO: Yeah, I think I can deal with that 7 one first. There's no in-- I mean I think that the indecency 8 standard is a standard that will be judged on a community 9 basis and I think that that -- 10 JUDGE SLOVITER: What community, you mean local 11 community? 12 MR. COPPOLINO: Well, yeah, where the communication 13 is at issue. 14 JUDGE DALZELL: Where the communication what? 15 MR. COPPOLINO: Is at issue. 16 JUDGE SLOVITER: Now, is that not a problem when 17 you're dealing with something that comes across the entire 18 United States? Leave aside the rest of the world, I 19 understand your position that you can only deal with what's 20 here and, you know, let's not worry about what's there, you 21 know, that's true, I don't have to worry about what they're 22 singing in Paris. 23 But the United States is so diverse, what goes in 24 Philadelphia, as cosmopolitan as Philadelphia is, may not 25 go-- where are you from? -- Lancaster. 97 1 JUDGE DALZELL: Lancaster. 2 JUDGE SLOVITER: May not go -- 3 (Laughter.) 4 JUDGE BUCKWALTER: For the record, that's spelled 5 L-a-n-c-a-s-t-e-r. 6 JUDGE SLOVITER: Well, seriously, so what -- and are 7 we on the same -- and we're all in the same district, in the 8 same Eastern District no less. What -- and Lancaster is 9 where the Amish are? 10 JUDGE BUCKWALTER: Right. 11 JUDGE SLOVITER: And "Witness" and -- 12 JUDGE BUCKWALTER: And Mennonites. 13 JUDGE SLOVITER: Mennonites. What -- and I know 14 we're taking your time, we're going to give you time to 15 answer. 16 MR. COPPOLINO: No, that's fine, I want to answer 17 your questions. 18 JUDGE SLOVITER: What community is it when somebody 19 sends something over the Chat News that I could access, 20 assuming I knew how, and that he could access? 21 MR. COPPOLINO: The answer, I think, to the question 22 is, it is a problem if you construe the indecency standards 23 as the way plaintiffs have, that someone might be offended, 24 for example, by a serious discussion of prison rape or safe 25 sex. 98 1 But if the indecency standard is properly understood 2 to be applicable to the types of materials Congress has 3 intended to cover, then the disagreements between communities 4 are going to be at the margins. Some communities like New 5 York, for example, will consider the movie, "Deep Throat," 6 not to be obscene but merely indecent. Philadelphia or 7 Lancaster may have a different view of that. 8 JUDGE SLOVITER: No, Philadelphia would be with New 9 York but Lancaster would -- 10 JUDGE BUCKWALTER: Would not. 11 JUDGE SLOVITER: -- might be somewhere else. 12 MR. COPPOLINO: I recognize that, your Honor, but 13 first of all we're in the ballpark of that kind of material 14 in -- 15 JUDGE DALZELL: Well, wait a minute now. You just 16 say we're in the ballpark. One of the amici put before us a 17 Web site of the University of California that has an exhibit 18 of the University of California that has an exhibit of Edward 19 Weston and Robert Maplethorpe photographs and it has two 20 examples of those photographs. The Maplethorpe photograph is 21 the depiction of a man with an erect penis, okay, and that's 22 the subject of that photograph, quite obvious. 23 Now, we don't have to speculate. We know in 24 Philadelphia, because that's where the show started, the 25 Maplethorpe show was a big hit at the Institute for 99 1 Contemporary Art but when it went to Cincinnati, in that 2 community people were very upset by it. 3 Now, is the University of California at Riverside, I 4 think it was, who has that on its site, is the University of 5 California at Riverside subject to prosecution under the CDA 6 in Cincinnati? 7 JUDGE BUCKWALTER: There's no indication, your 8 Honor, that the standard is simply going to be that you're 9 subject to prosecution where your site is. So I'd like to be 10 able to tell you that they're not exposed to liability where 11 that material can be downloaded, but what I want to come back 12 to you though and in connection with the Maplethorpe example 13 is that again you have -- you have steered me to now two very 14 tough cases which I would suggest to the Court not be the 15 cases which bring the statute down on a facial basis. 16 It is conceivable that that Maplethorpe picture of a 17 man with an erect penis might in some communities, in 18 Lancaster or in other communities it might be considered more 19 conservative, might be a problem because it is certainly a 20 depiction of a sexual organ, we can agree to that. 21 JUDGE DALZELL: It fits the literal definition, we 22 don't have to speculate. We know in Cincinnati that in that 23 community they find that a patently offensive depiction of a 24 sexual organ, so it is verbatim in D. So the U.S. Attorney 25 for the Southern District of Ohio indicts the University of 100 1 California at Riverside? 2 MR. COPPOLINO: Well, big, big leap there, your 3 Honor. I mean this is the statute which just doesn't say if 4 you have this communication or this image on your -- on your 5 Internet you have no -- you have no defenses. 6 The point I would make is that -- 7 JUDGE BUCKWALTER: No, no, no, no, but he's saying, 8 he didn't say it about defenses though, but do they indict? 9 That's what he was saying. 10 MR. COPPOLINO: The point I was going to make -- 11 JUDGE BUCKWALTER: And isn't the answer yes? 12 MR. COPPOLINO: No, no, I don't think the answer's 13 yes. I think the point is that if you're going to have an 14 image like that in your site, and we're getting closest to 15 the line perhaps without going across the line to materials 16 that aren't serious or do appeal to the prurient interest, 17 but if you're going to have an image like that on your site 18 and there is some risk, then there are steps that are 19 available to you to ensure that there may not be access by 20 minors because of the fact that there is possibility that 21 that might be found to be indecent. 22 But this is the hardest case and I again would 23 suggest that -- 24 JUDGE SLOVITER: But we could give you, I mean I 25 would imagine we could give you lots of hard cases. In other 101 1 words, we picked two but we don't have all day to stay here. 2 I asked a witness, if you recall, what about the Indian 3 statues, statues of, you know, copulating, loads of different 4 methods of copulation. And we didn't have a chance to ask 5 you -- 6 MR. COPPOLINO: Sure. 7 JUDGE SLOVITER: -- in those contexts. 8 MR. COPPOLINO: But that is where, that is I think 9 where we suggest to the Court that a fair, reasonable and 10 appropriate and narrow, if you will, construction that does 11 not involve being activists or re-writing the legislation is 12 to -- is to recognize that the indecency standard as Congress 13 has intended to apply it in this case, if properly applied to 14 the types of materials that are, that have been described in 15 the Congressional record and that we have put forward with 16 Mr. Schmidt's materials because I think it's very clear to 17 say, I think it's very fair to say that those are the 18 materials that Congress had in mind. 19 Now -- 20 JUDGE SLOVITER: Mr. Schmidt's materials are, I 21 would think, almost exclusively materials that are 22 pornographic. 23 MR. COPPOLINO: I wouldn't disagree with that. 24 JUDGE SLOVITER: Or obscene. 25 JUDGE DALZELL: Obscene. 102 1 JUDGE SLOVITER: Obscene. 2 MR. COPPOLINO: I do disagree with that, but I agree 3 they're pornographic, I don't -- 4 JUDGE SLOVITER: Well, I would think they were 5 obscene. 6 MR. COPPOLINO: Can I address that? 7 JUDGE DALZELL: Well, some were obscene for certain. 8 I mean I know it when I see it, just like Justice 9 Stewart. 10 (Laughter.) 11 MR. COPPOLINO: I did that, I -- but can I just 12 address this point? I certainly wanted to provide you 13 examples of a range of materials that are out there and we by 14 no means went to the far reaches of the extreme of what's 15 easily available to you on the Internet, but we did provide 16 somewhat of a range precisely because in some communities 17 they may not be obscene and I wanted the Court to see 18 examples of what those might be, given the fact -- 19 JUDGE SLOVITER: I can't imagine that community. 20 JUDGE DALZELL: But, Mr. Coppolino, the point is in 21 a case where you have an over-breadth challenge to a statute, 22 it seems to me that to come back to my Maplethorpe example -- 23 the reason I keep coming back to Maplethorpe is we don't have 24 to hypothesize anything about Maplethorpe. We know for a 25 fact how Mr. Maplethorpe's photographs are received in 103 1 different communities, okay? 2 And you're the lawyer for the University of 3 California. Does the University of California at Riverside's 4 gallery have to come to you and get an opinion and say Tony, 5 we've got these photographs of Weston and Maplethorpe and we 6 happen to think they're great, but are we going to get 7 prosecuted in Cincinnati if we put this on here? What would 8 you tell him? 9 MR. COPPOLINO: Am I the Justice Department or their 10 lawyer? 11 JUDGE DALZELL: No, you're the lawyer for the 12 University of California at Riverside. What would you tell 13 them? 14 MR. COPPOLINO: I would tell them you shouldn't 15 because as the -- 16 JUDGE DALZELL: You should not put that on there? 17 MR. COPPOLINO: No, you should not be prosecuted 18 under the indecency standard because Congress has construed 19 that, has applied and construed that standard in a fairly 20 specific way. 21 However, if you are concerned there are things that 22 you can do to protect access by minors to that site. 23 JUDGE DALZELL: How? 24 MR. COPPOLINO: Well -- 25 JUDGE DALZELL: Because we were told that those 104 1 images -- we were -- you know, but we were told by your 2 expert that images that he knew of no technology to block 3 images. He could block words, but not images. And that's 4 why I keep coming back to the Maplethorpe example because 5 they're images. 6 MR. COPPOLINO: Well, your Honor, you can block -- 7 you can block a file, certainly, you can block a site, we've 8 seen that. You can block a file and you can have the image 9 attached to the file and if the file is blocked, I believe 10 the image would be blocked as well. 11 I don't think it's correct to say that images can't 12 be, if images couldn't be blocked, America On Line's Parental 13 Controls would not work and they specifically attempt to 14 block down binary downloads. 15 JUDGE SLOVITER: Isn't the issue though one of 16 chill? In other words, if you're dealing with a First 17 Amendment challenge and the university says oh, who wants to 18 bother, who wants a lawsuit, who wants to have to come up 19 with a defense, it's not worth it. We're not making money 20 out of this, this is something that we're doing. And isn't 21 that a concern when we're dealing with a criminal statute? I 22 keep coming back to the criminal statute because people are 23 supposed to know, at least I was taught in law school and 17 24 years on this court I've been taking the position that people 25 are entitled to know what it is they may be prosecuted for. 105 1 And if these not insubstantial number of cases are 2 at the edge and they have to keep running to their lawyers 3 and saying where do you think this falls in a statute that 4 doesn't say specifically the things that Mr. Coppolino who's 5 nice but he now works for the university making more money, 6 and so I don't know who's going to construe the statute, 7 doesn't that present a problem and how do we deal with it? 8 MR. COPPOLINO: The answer is, your Honor, again 9 that there are parameters to the standard and this Court 10 certainly can go a long way towards reducing the potential 11 chill by construing the statute in a manner in which Congress 12 has intended it to apply and in a manner in which the Courts 13 have recognized that it has been applied. 14 Again, it is sexual and excretory activities that 15 are patently offensive. Now, we recognize with the -- 16 JUDGE SLOVITER: We don't know where, either, 17 patently offensive. 18 MR. COPPOLINO: We recognize that there's always the 19 potential risk in some cases in a criminal statute with some 20 hypothetical, but there has to be an expectation that the 21 Government is going to apply the standard in the manner in 22 which it is clearly intended to be applied and in a manner in 23 which the courts have said can constitutionally be applied 24 and we certainly are not asking the Court to re-write it, but 25 to take this standard as it has been intended. 106 1 And there is one point I would like to make about 2 this because I think my argument is not complete unless I 3 make it. The point that I've tried to make is that the 4 plaintiffs construe what we have submitted as pornography, 5 which I think is a fair characterization, but what I disagree 6 with is that because that material appeals to the prurient 7 interest and arguably has no serious value, it is necessarily 8 obscene. That is a legal determination and I think that that 9 analysis is simply wrong. 10 To be obscene under the Miller test, you have to 11 satisfy all three standards or obscenity. And therefore it's 12 conceivable that something could appeal to the prurient 13 interest as these materials do but not be considered patently 14 offensive or in some communities might have serious literary 15 or artistic value and therefore would not be indecent, would 16 not be obscene. 17 And the reason that this is important is that 18 material that is obscene, as you know, is not legal, it can 19 be banned entirely. It is a very -- and therefore it is a 20 very narrow category of speech and I think that Justice 21 Scalia's observation in Sable is that the more narrow that 22 category of speech of obscenity is, the more Congress needs 23 to sweep into this, into the indecency standard this type of 24 stuff, the kind of stuff in the Schmidt notebook. 25 Because if it just simply said let's limit the 107 1 statute to obscenity, well, then a lot of that material is 2 not going to be obscene in many communities and it would be 3 freely available and the protection of minors, which is the 4 Government's compelling interest, would not be served. 5 And this is clearly the case in a number of statutes 6 in which Congress has tried to use the indecency standard 7 successfully. 8 JUDGE SLOVITER: Well, you're distinguishing between 9 pornographic and obscenity, are you making a distinction 10 there? 11 MR. COPPOLINO: Well, yes. 12 JUDGE SLOVITER: They're not challenging, as I 13 understand it they're not challenging the application of the 14 statute to that which is obscene, everybody agrees to that, 15 or that which is pornographic. I thought I saw that. 16 MR. COPPOLINO: No, I'm afraid that with 17 pornographic, your Honor, we get into a subjective term, as 18 Mr. Hansen -- as Mr. Hansen nicely lectured me at the TRO 19 hearing, as you can -- as you might remember, your Honor -- 20 pornography is not a legal term. 21 Now, I can accept the colloquial characterization of 22 pornography is appealing to the prurient interest and lacking 23 serious value, but I do not accept the conclusion that that 24 is necessarily obscene. 25 I think a Playboy centerfold appeals to the prurient 108 1 interest, might have some artistic value to some, clearly it 2 appeals to the prurient interest. I doubt it's --I doubt 3 it's obscene. And I think that our laws clearly reflect that 4 understanding, that common sense understanding of where a 5 line is between obscenity and indecency. 6 Obscenity is the hardcore and what is hardcore is 7 going to vary in communities and at least one Circuit Court 8 in the Second Circuit thought "Deep Throat" wasn't hard core 9 enough to render an obscenity characterization. And that is 10 enough for Congress to say in order to effectively protect 11 minors, to serve our compelling interests, we'd better use 12 this indecency standard or a lot of bad stuff is going to get 13 through. 14 But it doesn't mean that safe sex information which 15 they have presented which is in context, very serious and 16 important information, is indecent. It doesn't mean that 17 ACLU's briefs on the Pacifica case or the Cohen case are 18 indecent because they discuss an area having to do with a 19 dirty word. 20 JUDGE SLOVITER: What about the statutory history of 21 the statute, what were the exceptions that Congress, the 22 conference committee or Congress rejected? 23 MR. COPPOLINO: The harm to minors, I think, is what 24 the Court is referring to. 25 JUDGE SLOVITER: Was that Representative Berman's 109 1 or... 2 MR. COPPOLINO: Well, harm to minors, your Honor, is 3 a separate standard and the plaintiff's argument seems to be 4 that Congress, if it wanted to regulate pornography, should 5 have used a harm to minors standard because that's been used 6 by the states to set up display while -- 7 JUDGE DALZELL: No, it's more than that because 8 Congress specifically rejected that, that therefore it's a -- 9 there is the breadth is necessarily wider since Congress was 10 given the opportunity to take it and elected not to, 11 specifically elected not to. 12 MR. COPPOLINO: In harm to minors, and harm to 13 minors is a variable obscenity standard. It is -- it is 14 material that is not obscene as to adults but obscene as to 15 minors, which means it has to satisfy the three standards of 16 Miller as to minors. It must be -- appeal to the prurient 17 interest of minors, must be patently offensive depictions 18 about sexual or excretory activities, it must have no serious 19 literary value, as to minors it is, I concede, a narrower 20 standard but a Congress -- but that does not mean by reverse 21 implication that the indecency standard therefore doesn't 22 include anything that is -- that -- anything that appeals 23 to -- 24 JUDGE DALZELL: Yeah, but don't you think that that 25 precludes, to get at what Chief Judge Sloviter has been 110 1 trying to get at for 40 minutes now -- 2 JUDGE SLOVITER: Have I been? 3 JUDGE DALZELL: -- doesn't that -- doesn't that rule 4 out for us, unless we be accused of being activist Federal 5 Judges, that how could we engraft a harmful to minors test 6 when Congress specifically rejected it? 7 MR. COPPOLINO: I am not asking you to engraft a 8 harmful to minors test and I can tell you the way that I 9 think you can do it. 10 JUDGE DALZELL: Okay, you're not. 11 JUDGE BUCKWALTER: No, mm-hmm. 12 MR. COPPOLINO: I think you can, you can, first of 13 all, cite the authority to which Congress has applied the 14 indecency standard and recognize that that standard has been 15 applied to materials that are comparable to the types of 16 materials that we believe are primarily at issue in this 17 case. And I refer you to, for example, the materials at 18 issue in Dial-A-Porn which I think very few would 19 characterize as -- 20 JUDGE DALZELL: Yeah, but you know in the Sable case 21 Professor Tribe (ph.) was representing Sable and he argued to 22 the Court, well, you know, this is a community standard and, 23 you know, how in the -- the telephone, we have to go 24 community to community and the Supreme Court said well, you 25 know, that's your burden, okay? And it's okay to say to a 111 1 commercial provider whose only business is Dial-A-Porn, 2 that's your burden. 3 Isn't it quite another matter to say to the 4 University of California at Riverside or to Mr. Kuromiya 5 sitting over there that they all have to go running to First 6 Amendment lawyers to determine whether what they're putting 7 on the Internet passes community standards from Brainerd, 8 Minnesota to Cincinnati to Philadelphia to San Francisco? 9 MR. COPPOLINO: I think it's a fair question, your 10 Honor, but I think the question goes to something other than 11 the indecency standard. I would suggest it goes more to the 12 issue of the least restrictive means or the over-breadth of 13 the statute as opposed to the standard because I think that 14 however -- wherever you apply a standard to, you have to have 15 a standard. You have to try to define what it is you're 16 trying to target. And my point to the Court is that you can 17 recognize that the indecency standard applies to a very 18 narrow category of speech. 19 The second inquiry would be does the act as a whole 20 sweep too broadly in its reach to commercial versus non- 21 commercial sites, Web sites versus USNet versus Chat Rooms. 22 But I would regard those as separate issues. I think if you 23 struck down the statute simply on the basis that the 24 indecency standard was too vague and no court that has had a 25 vagueness challenge has found it to be vague. And they 112 1 haven't really, really specified this point about commercial, 2 non-commercial, they simply said we think this is -- this is 3 clear enough for what has been applied to here by Congress. 4 If it sweeps too broadly, I think those are issues 5 more of least restrictive alternative and over-breadth which 6 I'd be willing, I'd like to address and -- 7 JUDGE DALZELL: But the Dial-A-Porn -- 8 JUDGE SLOVITER: You can -- no, go ahead, go ahead. 9 JUDGE DALZELL: The Dial-A-Porn cases, and we all 10 agree that Congress reached into Pacifica, reached into Sable 11 and begot the CDA. We all agree also, do we not, that Dial- 12 A-Porn is all porn because that's what they call it. That's 13 the only content on Dial-A-Porn is porn. Now, whether it's 14 obscene or not is another matter. There's only one type of 15 content. 16 What our friends over here represent are 46 players, 17 by my count, representing God knows how many individuals 18 within their organizations and I'm sure you would agree with 19 me, Mr. Coppolino, that not one of those plaintiffs is in the 20 pornography business. 21 MR. COPPOLINO: Not one of them is in the 22 pornography and therefore in our view not one of them falls 23 within the plainly legitimate sweep of this statute and I 24 think you can find that. 25 Now, whether or not the indecency standard can be 113 1 construed to apply to all of their serious, political or 2 scientific or educational speech, ACLU, human rights watch, 3 safe sex and so on, I don't think you have to. And my 4 authority for that is to direct the Court's attention, number 5 one, to what Congress has intended to apply the statute to 6 and, number two, to authority applying the indecency 7 standard. 8 You're absolutely correct, the indecency standard 9 was applied to Dial-A-Porn, which is Exhibit No. 1, to show 10 that indecency can be applied to porn, to materials that 11 appeal to the prurient interest. It doesn't have to be-- it 12 doesn't have to be obscene and that I think is a very 13 important conclusion because the Court can therefore say 14 okay, I can -- the indecency standard can survive a vagueness 15 challenge that the plaintiffs are making that this has to be 16 cabined into the obscenity area for the reasons that Judge 17 Scalia said in Sable. If you throw it into the obscenity 18 area, an awful lot of this patently offensive, sexually 19 explicit material is going to fall out, it's not going to be 20 obscene, it's not going to be completely illegal and 21 therefore it's going to be available to minors without any 22 restrictions. 23 But I think your question does go more to the over- 24 breadth and the least restrictive means and let me deal with 25 the over-breadth because I think it can be dealt with fairly 114 1 discretely. 2 There are two facial challenges. One is it has to 3 be invalid in every application and I think we show that's 4 clearly not the case. 5 JUDGE SLOVITER: Well, a substantial number? 6 MR. COPPOLINO: No, there's two, there's two tests 7 really. One is, is it invalid in every application, answer 8 no, I think you can -- you don't have to pause on that one. 9 JUDGE DALZELL: And the other is substantial over- 10 breadth. 11 MR. COPPOLINO: Substantial over-breadth again goes 12 to the question of whether or not the potentially 13 unconstitutional impermissible applications are substantial 14 in comparison to the statute's plainly legitimate sweep. And 15 they first, I think, bootstrap back in their indecency 16 argument, that if indecency covers so much, it's over-broad, 17 separate argument. 18 The second point they make is, which is really the 19 over-breadth point, is that the statute regulates more 20 broadly than Web sites and more broadly than commercial Web 21 sites and it goes to non-commercial speech and other types of 22 speech. Therefore, it's substantially over-broad. 23 But I don't think you can reach that conclusion that 24 it's substantially over-broad that easily and I don't think 25 you can reach it at all. The first point we would make to 115 1 the Court is that we have presented evidence, a small sample 2 but nonetheless a lot of evidence that there are -- that 3 there is an enormous amount of material out there, a vast 4 amount of material to which the statute can constitutionally 5 apply. And that is the type of material in Mr. Schmidt's 6 notebook -- 7 JUDGE SLOVITER: Yeah, but if we think that that 8 is-- suppose we don't agree with you and we think that that 9 is obscene. What would follow from -- I gather that you 10 think that some of it is not obscene, I'd like to see those 11 portions of it, maybe those are the few that I would look at. 12 But leaving that -- leaving -- 13 JUDGE DALZELL: "Chip's Erotic Tunes," probably. 14 JUDGE SLOVITER: Well, when we looked at it, we 15 thought and we had a motion from the plaintiffs that say 16 that's irrelevant because that's -- that's all obscene. And 17 we let it in but that doesn't mean that we found that it was 18 not essentially obscene. 19 MR. COPPOLINO: Well, I don't think you have to find 20 one way or the other that it's obscene or indecent and I 21 don't think you should because this is a -- this is a 22 standard, the line between what types of pornography are 23 obscene and indecent is going to vary. But I think it's very 24 clear under the law that what is obscene is extremely narrow 25 and if you were to decide that everything in the Schmidt 116 1 notebook, everything that Surfwatch blocks is obscene, well, 2 I don't think I'm going to win on the substantial over- 3 breadth argument because the substantial over-breadth 4 argument does make the point that this material can be 5 covered and should be covered by the indecency standard 6 because what is obscene is far too narrow and therefore, 7 therefore the statute does have a broad, plainly legitimate 8 sweep because these materials are properly within the scope 9 of the indecency standard. It is a major problem that 10 Congress sought to address and you don't have to re-write the 11 statute to reach this conclusion, you can see that the 12 materials are there, you can see that the statute can reach 13 them. 14 And let me just make my point on the credit card 15 defense. You can see that the credit card and access code 16 defense is readily available to those types of providers, no 17 re-writing required. 18 JUDGE SLOVITER: You'll agree that all of those 19 materials in the Schmidt notebook, I think now called the 20 Coppolino note -- 21 MR. COPPOLINO: Oh, let's call it the Schmidt 22 notebook. 23 JUDGE SLOVITER: -- notebook were designed to appeal 24 to the prurient interests of the viewer? 25 MR. COPPOLINO: Do I think that? 117 1 THE COURT: Yeah. 2 MR. COPPOLINO: Yes, I would say that they would but 3 they don't, that doesn't mean they're obscene, your Honor and 4 that's the point. 5 JUDGE SLOVITER: All right, well, whether or not 6 they are, you would agree that that classification of 7 material is designed to appeal to prurient interests? 8 MR. COPPOLINO: Yeah, but let me backtrack a half a 9 step and say that there are some of those images that some 10 might consider just artistic and that wouldn't, that wouldn't 11 find them pruriently appealing. Very few, I would hasten to 12 add, but there are some mild nudes and centerfold type images 13 which are not as explicit as others. 14 JUDGE SLOVITER: all right. But most of them were 15 very explicit? 16 MR. COPPOLINO: Yes, your Honor, but the point I'm-- 17 JUDGE SLOVITER: Is that right? Now, what is the 18 other area of the substantial so-called indecency material 19 that would come within the statute that is not of a serious, 20 that has no serious value? 21 MR. COPPOLINO: Well, I think the best examples I 22 can give the Court in that regard, the non-pornographic but 23 yet indecent materials would be of the nature of the kinds of 24 things that, for example, the SEC has identified. They do 25 not go out and say -- 118 1 JUDGE SLOVITER: Such as? 2 MR. COPPOLINO: Well, such as I put forward, I 3 think, in the record three examples. One was highly explicit 4 excerpts from a play on AIDS. It wasn't the whole play, it 5 wasn't the subject matter, it was just those experts. FCC 6 said we're not penalizing you for discussing AIDS, we are-- 7 we are -- we do think these specific excerpts are indecent in 8 its text and it's obviously not necessarily pornographic but 9 let me make -- 10 JUDGE SLOVITER: Wait a minute, wait a minute, let's 11 take that one. 12 MR. COPPOLINO: Mm-hmm. 13 JUDGE SLOVITER: So what you're saying is that even 14 though the play itself, the work itself could be viewed as 15 a-- and I don't remember what the work was -- but as a 16 serious literary work dealing with AIDS if excerpts of it are 17 patently offensive in some communities, then those excerpts, 18 at least, would fall within the statute? 19 MR. COPPOLINO: They might, your Honor, but I have 20 to say I don't think that's a terribly startling conclusion 21 because I think that the indecency standard makes clear that 22 if you do take stuff that is in the context of the 23 communication at issue is patently offensive, it can be 24 indecent. And in this instance material is taken out of 25 context, out of its serious value and simply put out there. 119 1 JUDGE SLOVITER: But wouldn't that cover almost all 2 the plays on Broadway today? I haven't, I don't go 3 frequently, I -- 4 MR. COPPOLINO: I don't -- you -- that assumes a 5 fact not in evidence that I know what's in those plays. 6 JUDGE SLOVITER: But don't almost all plays and I 7 gather from writer friends almost all books have to have a 8 little bit of sexual activity in order to sell? And does the 9 fact that a portion of what is, even though not high 10 redeeming value but the serious work has some material that 11 you would call -- now, I know we're on your first category 12 but I want to explore that. 13 MR. COPPOLINO: Second category now, yeah. Well, 14 we're on the non-pornographic category, right. 15 JUDGE SLOVITER: That's right. That would -- that 16 would subject, putting those on the Internet would subject 17 the speaker to potential criminal sanctions cause it has a 18 portion? 19 MR. COPPOLINO: No, I would say not, your Honor. I 20 would say -- 21 JUDGE SLOVITER: Well, that's what I'm trying to 22 find out. 23 MR. COPPOLINO: -- that if you -- if you -- there's 24 been a lot of examples thrown about, "Catcher In The Rye," 25 which I read in high school, "Lady Chatterly's Lover," I 120 1 would say that these works are serious literary artistic 2 works which in context are not indecent and I have yet been 3 cited a case which says that those are indecent under 4 Congress' indecency standard. They can show me some like-- 5 JUDGE SLOVITER: Yes, but isn't it true that -- 6 JUDGE DALZELL: But we know that in some communities 7 they are. 8 MR. COPPOLINO: No, I don't think we know that. I 9 think we know that -- 10 JUDGE DALZELL: Oh, sure, sure, we do. "Lady 11 Chatterly's Lover?" My God, it went to the Supreme Court, 12 that issue, didn't it? 13 MR. COPPOLINO: But, your Honor, I think that -- 14 JUDGE DALZELL: On whether it was obscene. 15 MR. COPPOLINO: The issue is whether or not this 16 book in its entire context on the Internet is going to be 17 legally indecent under this standard as Congress has applied 18 it. Whether the alternative is an obscenity standard where 19 very little is going to be covered, I think the answer is 20 that's not what Congress intended and that it would not and 21 should not be found to be indecent. 22 JUDGE DALZELL: Let me, if I may? 23 JUDGE SLOVITER: Go ahead, yes, sure, I didn't mean 24 to interrupt. 25 JUDGE DALZELL: I asked our friends on the other 121 1 side a number of questions about the medium and the 2 significance of the medium. Now -- and I think it's 3 undisputed or indisputable that Congress reached out to the 4 Pacifica case and you put tremendous weight on the Pacifica 5 case and the Sable case and begot the CDA. 6 As I read your material and your position in this 7 case, you say that Pacifica should not be limited just to 8 broadcast because what really bothered the Supreme Court and 9 permitted that to be upheld was the surprise element. And 10 that's why you took us through "Jasmine" and "Little Women." 11 Do I understand your position correctly, that that's 12 why Pacifica, because you would agree this is not 13 broadcasting we're dealing with here? 14 MR. COPPOLINO: I do agree it's not broadcasting and 15 I have left the Pacifica argument in just to make a point 16 that as the Court applies the Sable standard, it considers 17 the elements of pervasiveness and surprise that are -- that 18 exist on the Internet. 19 I am not here arguing, after I read the Fabulous 20 decision, that you've got to apply the Pacifica standard of 21 review, Sable doesn't even apply. I don't think that's a 22 fair characterization of our position. 23 But -- and so Sable requires the Government has a 24 compelling interest that the statute regulate least 25 restrictively. But I'm not going to abandon the lessons of 122 1 Pacifica entirely as you apply Sable. 2 This is a highly pervasive medium. You asked Mr. 3 Hansen how does it compare, what would you compare it more 4 to, print or broadcast. It's a hard question but I think 5 clearly you've got to compare it more to broadcast. In my 6 first exhibit -- 7 JUDGE SLOVITER: Why? 8 MR. COPPOLINO: Well, I would say Mr. Bradner, Mr. 9 Bradner and others have made the point that this is a medium 10 that for which other types of media area converging. It's 11 not just point and click and get a text, you get text, you 12 get images, you can get video, you can get -- you can get a 13 lot of other materials that are piped through to the home in 14 a manner in which the differentiation between the media is 15 diminishing. 16 JUDGE SLOVITER: Yeah, but isn't the key in 17 broadcasting the fact that there are only limited number of-- 18 MR. COPPOLINO: Well, that's definitely a key, your 19 Honor. 20 JUDGE DALZELL: Frequencies. 21 JUDGE SLOVITER: -- frequencies. 22 MR. COPPOLINO: I think that's right, that's 23 definitely our key but I think there what -- 24 JUDGE SLOVITER: Is that not -- isn't -- and 25 therefore the Government has to regulate. 123 1 MR. COPPOLINO: It's ap-- I think it's almost-- 2 JUDGE SLOVITER: Don't -- 3 MR. COPPOLINO: Okay. 4 JUDGE SLOVITER: And here you don't have that kind 5 of limitation and therefore governmental interest or 6 involvement. I just want to hear your response. 7 MR. COPPOLINO: Well, the response to that is that 8 yes, the limited number of entities on the broadcast spectrum 9 is a key factor in Pacifica which I think led the Court to 10 find that communication was indecent. 11 The point I'm trying to make is that there are other 12 elements that can be derived from Pacifica such as 13 pervasiveness and elements of surprise which can be applied 14 here. It's not a perfect analogy, but I don't think you can 15 discount it entirely in this media. 16 JUDGE BUCKWALTER: But even though there is no 17 perfect analogy here, and, you know, I think you can get a 18 list and you can put on one side and, you know, it's going to 19 kind of balance out, I think. But why does that matter? 20 Both parties seem to think the specific nature here matters. 21 Why does it matter? 22 MR. COPPOLINO: I think it matters most directly in 23 connection with the Government's compelling interest because 24 if we can -- as we have demonstrated to the Court, this is a 25 pervasive media, there's 12 million on line through 124 1 commercial on-line services, millions more through ISP's, 2 computers -- computers come right in -- 3 JUDGE BUCKWALTER: But I mean in the law and this, 4 this is I'm asking you for your explanation of the law, why 5 does it matter if we look at this more like broadcasting than 6 if we look at it more like a newspaper? 7 MR. COPPOLINO: Well, I think it matters more if you 8 look at it more like broadcasting because I think that 9 certainly there's less tolerance of indecency in 10 broadcasting. 11 JUDGE BUCKWALTER: Okay, as I just -- that's what I 12 thought your answer would be and I wanted to understand your 13 position. 14 JUDGE DALZELL: But that's what I don't get. 15 MR. COPPOLINO: So I'm trying to get you closer to 16 that and then the newspapers. 17 JUDGE DALZELL: In terms of pervasiveness and 18 surprise, okay? Let me give an example because it relates to 19 this medium question that I've been pressing, okay? 20 I brought with me yesterday's Inquirer, okay? Now, 21 I'll tell you a little anecdote. 22 JUDGE SLOVITER: The Philadelphia Inquirer, you 23 might as well advertise it. 24 JUDGE DALZELL: The Philadelphia Inquirer, right. 25 (Laughter.) 125 1 JUDGE DALZELL: And I'll tell you a little anecdote, 2 little anecdote, okay, in the Dalzell household. My ten year 3 old son within the class that Congress wants to protect, we 4 know that. My ten year old son is a rabid Phillies fan and 5 the first thing he does in the morning when he comes down for 6 his breakfast is he gets the Inquirer and he looks to see how 7 the Phillies did. 8 So yesterday he looked and he saw that the Phils 9 edged Astros' intent, but he also saw above the fold a 10 Liberian prisoner faces death and that is to say one of the 11 more grisly pictures I have ever seen above the fold of an 12 unarmed man being shot to death while men in the background 13 are laughing. 14 Now, let's assume that parents who shared the horror 15 of my son at seeing this went to Congress and said this has 16 got to stop, so let's pass a newspaper decency act that 17 provides that any depiction of murder be shown below the 18 fold. It's a trivial intrusion, it costs nothing. Do you 19 have any doubt that that would be unconstitutional? 20 MR. COPPOLINO: I have very few doubts that that 21 would be unconstitutional. 22 JUDGE DALZELL: So why would that minimal, that 23 minimal intrusion on the editors of the Philadelphia Inquirer 24 to prevent what I think most fair-minded people would say is 25 the most indecent picture that they could imagine of one 126 1 human being wantonly killing another defenseless human being, 2 that that can't be moved to the bottom of the fold but that 3 Congress has the power to control the access of a much more 4 pervasive medium, the Internet? 5 MR. COPPOLINO: A couple of points, your Honor. 6 First of all, indecent, yes, but not necessarily, but not 7 indecent as this indecency standard means. Indecency under 8 the Communications Decency Act or in a number of these other 9 acts in Dial-A-Porn does not mean serious material, not 10 suitable for adults -- or for children like someone getting 11 killed on the front page of the Philadelphia Inquirer. It 12 means, first of all, sexual or excretory activities. 13 For example, Mr. Ennis, I believe, cited an abortion 14 case, a District Court decision where someone wanted to put 15 on an ad about abortion and there was going to be a very 16 graphic depiction of abortion. And the District Court said 17 hey, I think this is indecent and you have to channel it to 18 past ten o'clock, FCC disagreed with that. 19 FCC said you should channel it under a separate 20 regulation but it's not indecent. So that's my first point 21 in response. 22 JUDGE DALZELL: Yeah, but I don't think you're 23 answering my question. My question is since we agree with 24 each other under Tornillo and other cases that Congress would 25 not have the power to adopt a newspaper decency act which 127 1 would merely require the Inquirer to put this same photo on 2 the same page but below the fold so it has no cost, it's 3 trivial, but that would still be unconstitutional. What is 4 it about the Internet medium that makes it a completely 5 different ball game? 6 MR. COPPOLINO: Well, I think -- I think one of the 7 differences, we all know the print medium has the very 8 broadest of First Amendment protections and I think the 9 differences with the Internet media is that it allows for 10 tremendously broad array of materials far beyond what would 11 go into a newspaper to come right into the home and be easily 12 available, not mere text, not even mere images but moving 13 images as well and as technology advances you're going to see 14 the speed with which the stuff can come down to your computer 15 increase. It is becoming television-like, I guess is the 16 point. 17 JUDGE DALZELL: But this happened instantly to my 18 son on his way to finding out that the Phillies beat the 19 Astros, instantly, total surprise, worse than finding 20 "Jasmine" he sees this human being wantonly murdering an 21 unarmed person who is pleading for his life. 22 MR. COPPOLINO: I think the answer is the best I can 23 think of at this point is that I think the answer is that the 24 interactive computer services and home computers are becoming 25 more entertainment and television-like in what they can put 128 1 forward to children. 2 And I guess to change the analogy a little bit, if I 3 may, your Honor, what I am putting at issue in this case and 4 what I believe is at issue in the indecency standard are the 5 types of materials that we have submitted and your son could 6 not pick that up on his doorstep. 7 He couldn't go into a drugstore and buy Penthouse or 8 PLayboy, I think you said he was ten years old, they can't 9 tell that to minors. He couldn't go into an adult book 10 store, he couldn't go into an adult movie theater and he 11 can't get that stuff. 12 So he can pick up a paper and see a very graphic 13 picture of that, but he can't get our stuff -- this stuff as 14 easily. 15 JUDGE SLOVITER: If he subscribed, I don't know if 16 these are subscription magazines or anything, but if he 17 subscribed, if his parents subscribed to them they'd come 18 through the mail and Congress couldn't, could it, say that 19 you can't let the child look in the centerfold? 20 MR. COPPOLINO: No, Congress can't regulate every 21 problem but it can regulate problems in some ways. And what 22 it has done is try to regulate this problem in a I think 23 fairly described a least restrictive manner, certainly as 24 with respect to the content providers because these, the 25 content providers certainly for commercial sites because 129 1 these folks can avail themselves of these very specific 2 defenses. 3 JUDGE SLOVITER: Isn't a key to your argument that a 4 child, person under 18, could inadvertently come across some 5 of this material? I notice that you put a lot of focus on 6 that evidence during the evidentiary portrayal. Is that -- 7 and in your brief. Is that inadvertence a key to your 8 argument? 9 MR. COPPOLINO: Well, I'm not sure I would describe 10 it as -- well, I certainly wouldn't describe it as the key or 11 a key. I think it's an important part of the argument to 12 show to the Court, number one, that the Government has a 13 compelling interest here and, number two, that this material 14 is pervasive and you should take that into account. 15 JUDGE SLOVITER: The Government's -- yeah, but let's 16 go back. What is the connection between the Government's 17 interest and the what we'll call for this point inadvertence? 18 MR. COPPOLINO: Well, here is the connection. You 19 can get this kind of material on the Internet by looking for 20 it and I believe the evidence shows you can get this kind of 21 material when you're not looking for it. 22 Certainly you can get -- you can get right up to it. 23 And I think that the reason we put those searches in Mr. 24 Schmidt's testimony, we put both kinds. You're a 14 or 15 25 year old, you're familiar with the ways of the world, you 130 1 want to go out and find stuff you can't get in the drugstore 2 or the book store, you can find it. You can look for and 3 find it. 4 But you are someone who is searching for a Disney 5 character or for something on media images of women, the 6 journalism student at -- in a high school who is searching 7 for that and you can be confronted then with sexually 8 explicit, links to sexually explicit sites. And I would 9 suggest to the Court this demonstrates that the Government 10 does have a compelling interest here and underscores what 11 that interest is. 12 JUDGE SLOVITER: If we-- if we find -- and I'm not 13 saying we will, we haven't even talked to each other for 14 weeks -- well, they may have, but I haven't. If we -- they 15 are on the same floor. 16 If we find that the evidence does not support the 17 proposition that there is a significant problem of 18 inadvertently chancing upon such material because you have to 19 do a lot of clicks or because there's a warning, what would 20 remain of the Government's contention of a compelling 21 Government interest? 22 In other words, is there a compelling Government 23 interest as a matter of law to shield 15 year olds from -- 14 24 year olds from material they want to see and their parents 25 don't care whether they see or not? 131 1 MR. COPPOLINO: Your Honor, I think that virtually 2 all of our interest remains. And I'll tell you -- I'll tell 3 you why. I think that to just evaluate the case on this 4 issue of inadvertence, of surprise, it's a factor, it's 5 something to take into account. Certainly these hits are 6 jarring when you're looking for something that's not sexually 7 explicit, but the key point is the ease with which minors -- 8 anybody, but minors in particular can get access to this 9 stuff and that is the important thing. Not whether -- 10 JUDGE SLOVITER: If they want it. 11 MR. COPPOLINO: If they want it. 12 JUDGE SLOVITER: And whether or not the parents 13 care? Because I thought in reading the conference committee 14 that it all dealt with, you know, they want to help the 15 parents. 16 MR. COPPOLINO: Well, yes, they do want to help the 17 parents. Here's the point, your Honor. A child or a minor, 18 let's take a junior high student or someone over 13, as I 19 said, he can't go buy it in the store, he can't go into the 20 movie theater, he can't go into the adult book store, but he 21 can't -- 22 JUDGE SLOVITER: He can go into the library in 23 Pittsburgh. 24 MR. COPPOLINO: Well, he can't get this stuff in the 25 library. 132 1 JUDGE SLOVITER: Oh. 2 MR. COPPOLINO: And he can click it on and get it, 3 and that's really, I think, the heart of the interest. If 4 he knows what he's doing or if it's an accident, but the key 5 to the interest is that you can get it, you can get a lot of 6 it, you can get it easily and you can get it across a range 7 that has never been available before to minors. And that's 8 the significant interest at stake. 9 JUDGE DALZELL: Books, what, I keep coming back to 10 that question: what is it about this medium which our 11 friends, I think you would have to agree with them, have 12 established is this most democratic of mediums that the human 13 mind has come up with yet, what is it about this medium that 14 makes it different from print in terms of the constitutional 15 protection it should receive? 16 MR. COPPOLINO: Uhm, well, I'm not sure I really 17 understand the question but I'm going to try to -- I'm going 18 to try to answer it this way. This is a telecommunications 19 medium which pipes down to the home this kind of material 20 along with other kinds of materials that would be useful to a 21 child, educational materials, scientific materials and so on. 22 If you talk about the print medium, the print medium 23 in your newspaper there, you're not going to get access to 24 this kind of patently offensive, sexually explicit material 25 at all. You're not going to get access to that kind of stuff 133 1 unless you go buy it, but this you can. 2 JUDGE DALZELL: Above the fold in the New York Times 3 just within the last two weeks above the fold was a story on 4 female genital mutilation in Africa, it had a photograph of a 5 woman who was scared to death to go back there, and I'll tell 6 you, I think -- it's a terrible problem but I would be a bit 7 concerned about my son reading it above the fold. 8 MR. COPPOLINO: Sure. 9 JUDGE DALZELL: Should we have that newspaper 10 decency act? 11 MR. COPPOLINO: I'm not going to advocate the 12 newspaper decency act, your Honor. 13 JUDGE DALZELL: So your argument really is that this 14 is like broadcasting? 15 MR. COPPOLINO: My argument is that this is much 16 closer to broadcasting than it is to print. And in a few 17 years, as Mr. Bradner said, it will be virtually the same as 18 broadcasting. You're not going to have a handful of 19 entities, but you're going to have -- you're going to have 20 this very pervasive -- if I could just make one last point, 21 your Honor. 22 JUDGE SLOVITER: No, it won't be last because we 23 have questions. 24 MR. COPPOLINO: Mr. -- Mr. Burrington and I believe 25 Mr. Bradner, but certainly it is a fact in the record that 134 1 the Internet can be piped through not just through a 14.4 or 2 a 28.8 modem, but through coaxial cables, that's a coming 3 technology, it's being tested out in the market right now. 4 That's going to zoom the stuff down to the 5 marketplace faster than we can do now with these, with even 6 this T-1 line that we had in here. And, and as I have 7 indicated, you have more than just pictures and text. You're 8 going to have images, you're going to have movies. It's 9 going to be like cable television more than anything else. 10 JUDGE DALZELL: If we hold, for example, that a 11 chatroom bears no resemblance to anything on the broadcast 12 medium, do you lose? 13 MR. COPPOLINO: No, I don't -- I don't think we lose 14 but I do think that the chatrooms and some of the other 15 medias present different questions and admittedly tougher 16 questions. 17 JUDGE DALZELL: But you would agree with me that the 18 chatroom bears no resemblance whatever to a broadcast medium? 19 MR. COPPOLINO: Well, one thing -- 20 JUDGE DALZELL: It's interactive, people are talking 21 to one another -- 22 MR. COPPOLINO: Mm-hmm. 23 JUDGE DALZELL: -- not the telephone. 24 JUDGE BUCKWALTER: Well, aren't the broadcast media 135 1 shows interactive, too, some of them, as I recall? The talk, 2 the call-in shows and so forth? 3 MR. COPPOLINO: I think that's right, but even -- 4 even with -- 5 JUDGE BUCKWALTER: Are they -- 6 MR. COPPOLINO: The one thing you have to bear in 7 mind on the interactive computer service is that it's 8 generally run over telephone lines and a chatroom certainly 9 is not -- is not all that different from communicating over a 10 telephone line although you can see it in print on your 11 screen. And Dial-A-Porn comes over the Internet. You can 12 have audio applications. 13 JUDGE DALZELL: But Dial-A-Porn doesn't go beyond 14 porn, by definition. The Supreme Court made it absolutely 15 clear that's all they were dealing with was porn, they 16 weren't dealing with the generic question of whether Congress 17 has the power to control a conversation that I have with 18 Chief Judge Sloviter or, I guess more accurately for this 19 case, that she has with my ten year old son. 20 MR. COPPOLINO: Your Honor, that's right. But were 21 kind of back now to does this indecency standard cover every 22 time someone uses a dirty word in a chatroom when they get 23 mad. And I would suggest that that's really not what it's 24 intended to cover and the chatrooms do present tougher issues 25 than the commercial Web sites where it is clearly 136 1 constitutional. But as Mr. Baron will indicate this 2 afternoon, there are methods that if you -- there are methods 3 where if you're going to have a highly sexually explicit 4 chatroom discussion, that there are methods that people can 5 take to screen access even to that, screen access by minors 6 even to that kind of stuff, that this is not -- there are 7 not -- there are not, as Mr. Ennis says, no possible defenses 8 even for those media. 9 But if I could maybe -- 10 JUDGE SLOVITER: I'd like to get back to the 11 Government's first, basic First Amendment position because 12 I'm -- and I know we've thrown this at you, but we've been 13 bottling this up as we read it. 14 If -- does the Government have the right to make it 15 a criminal offense for a 14 year old to read Henry -- let's 16 assume that Henry Miller's "Tropic of Cancer" would be 17 indecent under the statute. I mean, as I recall from when I 18 read it and I was probably not 18 at the time, there -- I 19 mean I think I might find it much more indecent now than I 20 did then, but my -- 21 (Laughter.) 22 JUDGE SLOVITER: -- sensibilities have changed. 23 But I'm thinking of like the most indecent, 24 potentially indecent book I ever read. And let's assume, I 25 think, can we assume that "Tropic of Cancer" would be 137 1 indecent in some communities? 2 JUDGE DALZELL: Oh, yes, I think so, in some 3 communities. 4 JUDGE SLOVITER: Certainly patently offensive, the 5 language, the subject matter and everything else. Do you 6 claim that the First Amendment's extension of rights to read 7 that kind of material don't cover a 14 year old? I just want 8 to -- yeah, do -- 9 MR. COPPOLINO: Don't cover a 14 year old? Well, I 10 do think that, first of all, if you assume the conclusion 11 that it is indecent -- 12 JUDGE SLOVITER: Yeah, let's -- 13 MR. COPPOLINO: -- which I'm not quite sure I agree 14 with. But if you take that assumption, I do think that 15 Congress can draw a bright line, that it's very difficult to 16 differentiate between the maturity levels and the abilities 17 of minors at different ages to deal with this stuff. 18 Now, certainly a 14 year old might be able to deal 19 with it better than an eight year old that probably couldn't 20 even read it. So there are differences between minors, I 21 don't dispute Mr. Hansen's point on that. I think the 22 problem though is once you try to move that line down and try 23 to capture the more mature minors, you're going to have a 24 terribly difficult problem regulating that. And therefore I 25 think Congress is entitled to say age of, you know, age of 138 1 adulthood, age 18, is the line that we're going to draw here. 2 Now, you're assuming that this book is indecent and 3 I'm not sure. I mean I read "Catcher In The Rye" in high 4 school and I wasn't 18 yet. 5 JUDGE SLOVITER: I think this is -- this is a 6 different medium. I think that this is a different, as I 7 recall I think this is far different from "Catcher In The 8 Rye." 9 JUDGE DALZELL: Oh, very different. 10 JUDGE SLOVITER: And I think they even tried to 11 keep it out of this country at some point. 12 JUDGE DALZELL: They did, they did. 13 MR. COPPOLINO: I'm going to go buy it, in fact. 14 (Laughter.) 15 JUDGE DALZELL: It's really not that good. 16 JUDGE SLOVITER: I don't think it is now but one 17 might have argued that it had some benefit at that time 18 because it opened the freedom to read literature like this. 19 I don't know. 20 But I'm just interested in the basic proposition 21 because we're dealing with the Government's interests. I 22 mean I am coming back to this case because the question is, 23 is there a compelling Government interest? 24 And if you don't deal with the inadvertence, if you 25 say well, inadvertence is not really a problem, there's more 139 1 of a Government interest here and you say yes, there is and 2 it's not just the inadvertence, then the question is how much 3 Government interest has been sustained by the case law in 4 keeping children from material that is not purveyed for 5 prurient interests by commercial enterprises, and that's a 6 very basic question that we have. And -- 7 MR. COPPOLINO: Yeah, I -- I'm not aware of the 8 cases which have said that the Government has a compelling 9 interest in shielding minors from access to literature of 10 this -- I'm not quite sure what this is so I'm not going to, 11 I'm not going to talk about that. But let's just assume 12 serious literature that might contain sexually explicit 13 scenes in it, the Government's compelling interest has been-- 14 JUDGE SLOVITER: Themes. 15 JUDGE BUCKWALTER: What is the Government's 16 compelling interest in this case? 17 MR. COPPOLINO: The Government's compelling interest 18 has been in this case and in many cases like it has been 19 consistently upheld as to protecting minors from exposure to 20 non-obscene materials, that is materials that are not obscene 21 as to adult but nonetheless harmful to minors. And when you 22 look at every one of those cases, whether it's the indecency 23 cases or the harm to minors cases, you are talking about the 24 kinds of sexually explicit materials we've put forward. And 25 we are suggesting to the Court that that is the compelling 140 1 interest that is here. The plaintiffs -- 2 JUDGE SLOVITER: But we didn't, but they didn't put 3 a harmful to minors provision in. We have to read it in? 4 MR. COPPOLINO: No, your Honor, the cases involving 5 non-obscene mater-- materials that are not obscene as to 6 adults but harmful to minors are both the harmful to minors 7 test and the indecency test. In Sable and in these cases 8 implying the indecency standard, they point that right out. 9 They say the Court in -- Supreme Court in Ginsburg 10 and Ferber says that the Government has a compelling interest 11 in protecting children from material that is not obscene as 12 to adults but harmful to minors and in this case they're 13 using the indecency standard, I don't think that that really 14 matters much. 15 I could probably conclude with two -- 16 JUDGE SLOVITER: Go ahead. 17 MR. COPPOLINO: I could -- I could conclude now, I 18 could start again this afternoon. The only -- 19 JUDGE SLOVITER: No, go ahead, you finish up 20 yourself. 21 MR. COPPOLINO: Okay. That would be probably a good 22 idea. I mean the -- just the one point I want to make, the 23 one -- 24 JUDGE SLOVITER: And you've done beautifully. 25 MR. COPPOLINO: The one -- two final points. On 141 1 this issue of over-breadth and I think least restrictive 2 means, I would ask the Court to very seriously consider that 3 there is a substantial valid application of the statute as to 4 the types of materials that we have submitted and you don't 5 have to re-write the statute to find that. I think we 6 presented you the evidence that there is a serious problem 7 and I think the defenses, certainly the credit card and 8 access code defenses easily apply, it can apply and the 9 providers can do it. 10 Let me just touch briefly on the -- 11 JUDGE SLOVITER: Could I ask you another question? 12 MR. COPPOLINO: Okay. 13 JUDGE SLOVITER: Okay, I didn't think you'd say no. 14 (Laughter.) 15 JUDGE SLOVITER: Mr. Baron is going to deal with the 16 defenses but as I understand, you're saying that if it's 17 material with a serious redeeming value it wouldn't be 18 covered and -- 19 MR. COPPOLINO: No, I'm saying that material that as 20 a whole has a serious redeeming value -- 21 JUDGE SLOVITER: Okay. 22 MR. COPPOLINO: -- it shouldn't be covered by this 23 standard such as the materials the plaintiffs have submitted. 24 JUDGE SLOVITER: Now, in the conference committee 25 report the conference committee report says they would -- 142 1 they are not really a problem because there is no intent to 2 offend. 3 Do you think we have to read into the statute an 4 intent to offend? 5 MR. COPPOLINO: well, I think that that language is, 6 I think that intent to offend is such a significant standard 7 that that would be a lot to read that intention standard into 8 the statute, but I think it underscores Congress' intention 9 that the material be limited to -- to the types of materials 10 that they specifically identified in the Congressional 11 Record, to the types of materials that I am talking about. 12 But I don't -- 13 JUDGE SLOVITER: Is your answer a yes or a no? 14 MR. COPPOLINO: I guess my answer is I don't think 15 you can read into the statute an intent to offend cause it's 16 not in the statute. 17 JUDGE SLOVITER: Even though that was the reason -- 18 well, neither are a lot of the other things. But that was 19 the reason the conference committee report gave for exempting 20 in a way although not explicitly material of a serious 21 redeeming value. 22 MR. COPPOLINO: Yes, but my arguments with respect 23 to your construction of indecency and over-breadth I think 24 are fully comfortable within the statutory language, to read 25 in an intense standard is more. And I would just suggest to 143 1 the Court that that language in the conference report 2 underscores the parameters and the limitations of the 3 indecency standard, but I think beyond that I really couldn't 4 ask -- tell the Court to construe it that way because it's 5 just -- it's just not plain from the statute. 6 The -- I guess the last point, I'll make this fairly 7 quickly. As you know, I cross-examined Mrs. Duvall and I 8 think that the parental controls -- I just want to make a 9 point on the parental controls as a less restrictive means. 10 They are certainly very commendable products but I 11 think we saw a number of the flaws with those products which 12 suggest that they cannot by themselves serve this purpose. 13 And I think, just to sum it up in a nutshell, Mrs. Duvall I 14 think very candidly indicated that Surfwatch is constantly 15 trying to update. They started with 2,000 sites, they're now 16 up to about 8,000. There's four to eight hundred new sites a 17 week, there's a constant lag and there is a constant effort 18 to change, to chase up and catch up with these sites. 19 And, as the Court also saw in Mr. Schmidt's 20 testimony, sites change their names almost within a couple of 21 days. And therefore Surfwatch by itself and products like 22 that which try to identify sites or have key words can't do 23 the job. Key words don't necessarily get you there either 24 because you saw there's lot of exhibits that we submitted 25 that don't have a sexually explicit URL and they're not going 144 1 to get picked up on a key word search. So you've either got 2 to know what that site is, if you haven't found it already, 3 Surfwatch is not going to pick it up. 4 So I think -- I think our brief has made that point 5 pretty clearly and I guess I will -- I will stop there. 6 JUDGE SLOVITER: What scrutiny do we apply? 7 MR. COPPOLINO: Your Honor, I -- you apply the Sable 8 test, but you -- which is -- 9 JUDGE SLOVITER: Is that strict scrutiny? 10 JUDGE DALZELL: That's strict scrutiny, sure. 11 JUDGE SLOVITER: Okay, that's all right. 12 MR. COPPOLINO: Taking into account my argument on 13 Pacifica. 14 (Laughter.) 15 JUDGE SLOVITER: Thank you very much. We will meet 16 again in an hour and we will begin with Mr. Baron. 17 Thank you, Mr. Coppolino. 18 (Court in recess; 12:46 o'clock p.m.) 19 AFTERNOON SESSION 20 (1:48 o'clock p.m.) 21 JUDGE DALZELL: Hello, Mr. Baron. 22 MR. BARON: Good afternoon, your Honors. Jason R. 23 Baron for the Justice Department. 24 I'd like to pick up where Mr. Coppolino left off, in 25 outlining what are the available affirmative defenses to non- 145 1 commercial content providers on the Internet. 2 JUDGE SLOVITER: Before you do that, could you 3 address briefly, if necessary, my question which is whether 4 the availability of defenses -- the viability of the theory 5 that if you have defenses in the statute, assuming that they 6 were good defenses, that saves it from any over-breadth or 7 vagueness? 8 MR. BARON: I think you would need to restate the 9 question, your Honor. Is it in the context of other statutes 10 you're asking, or -- 11 JUDGE SLOVITER: No, has any Supreme Court case held 12 that a criminal statute that has defenses in it is thereby 13 saved from overbreadth. 14 MR. BARON: I'm not aware of case law that parallels 15 the statute, your Honor. 16 JUDGE SLOVITER: Or is there any other statute like 17 this that talks in terms of defenses to a criminal statute? 18 MR. BARON: Other than the Dial-a-Porn context, I'm 19 not aware of one that dovetails with the words of this 20 statute. 21 JUDGE SLOVITER: I don't mean the words, I mean this 22 context that the existence of a defense is enough to save the 23 statute, that you have to consider it with the existence of a 24 defense. 25 MR. BARON: Yes, but it is the position of the 146 1 Government, however, that the broad nature of the affirmative 2 defenses that are part of this statute do allow for 3 sufficient defenses to be asserted so that there would not be 4 a substantial number of applications that would be subject to 5 the kind of overbreadth challenge that Mr. Coppolino was 6 discussing. 7 JUDGE SLOVITER: But you can't give us any 8 citations? 9 MR. BARON: Not today, your Honor. The touchstone 10 of -- 11 JUDGE SLOVITER: We don't want more briefs. 12 (Laughter.) But go ahead, Mr. Baron, we'll hear you. 13 MR. BARON: The touchstone of what Congress intended 14 by way of the affirmative defenses that are set forth in the 15 CDA is of course the statute itself supplemented by its 16 legislative history. Congress not only provided for the 17 concrete defenses that are listed in E5(b) regarding credit 18 card, debit account, adult access code, adult personal 19 identification numbers, but they went further. The text of 20 223 E5(a) provides for a broad range of affirmative defenses 21 to be asserted by content providers based on their taking 22 reasonable, effective and appropriate actions under the 23 circumstances and in light of what is feasible based on 24 available technology. The statute represents a forward- 25 looking approach to what everyone concedes is an 147 1 extraordinarily creative, flexible and powerful new means of 2 communication. 3 The very words of the statute imply that what is 4 feasible under the circumstances based on available 5 technology today may change. Congress expected that it would 6 change. Thus, the statute does not consist of a static 7 snapshot of available defenses, but keys those defenses to 8 what is feasible to do under available technology. 9 JUDGE BUCKWALTER: And if none are available, then 10 that is a defense, too? 11 MR. BARON: Excuse me, your Honor? 12 JUDGE BUCKWALTER: If none are available, is that a 13 defense? 14 MR. BARON: The statute contemplates that there -- 15 well, I believe the evidence of record shows that there are 16 certainly available defenses -- 17 JUDGE BUCKWALTER: Well, we might discuss that 18 later, but -- 19 MR. BARON: But the -- 20 JUDGE BUCKWALTER: Maybe Judge Dalzell wants to 21 discuss it now. (Laughter.) 22 JUDGE DALZELL: Well, I mean tagging isn't available 23 now, is it? 24 MR. BARON: It has been the evidence of record that 25 as was evident from the first day of the hearings before the 148 1 Court that there are schemes that the available standards and 2 protocols of the Internet allow for putting in place, and 3 that the marketplace is poised to allow for tagging and 4 labeling schemes that are content selection schemes such as 5 Congress envisioned. 6 JUDGE DALZELL: But getting a