Supreme Court justices draw sides on Internet free speech Moderates Kennedy and O'Connor hold pivotal votes in cyperspace issue

March 20, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Supreme Court justices wandered somewhat tentatively through the new world of cyberspace for 70 minutes yesterday, leaving behind only a few hints of what they think about free speech on the Internet.

A hearing on the constitutionality of Congress' first effort to limit what is said or seen on-line finished with one fairly clear impression: The outcome is likely to depend on the votes of moderate Justices Anthony M. Kennedy and Sandra Day O'Connor, with other justices splitting into two camps.

The Clinton administration lawyer in the case, Seth P. Waxman, described Internet indecency as a "very, very serious problem."

The Internet, Waxman asserted, "threatens to give every child with an interactive computer a free pass into the equivalent of every adult bookstore and adult video store in the country."

Speaking for the law's challengers, an array of Internet providers, users and their advocacy groups, Washington lawyer Bruce J. Ennis said the law would severely restrict expression in a medium on which "the average citizen can speak to the world for free."

The law goes so far, Ennis said, as to outlaw all forms of indecent speech even though the Constitution protects adults' access to that kind of expression.

At the center of the case is a 1996 federal law that makes it a crime to put sexually explicit words and images on the Internet, where they can be scanned by children. Two lower federal courts have struck down the law, and the Clinton administration is making a vigorous effort to have the Supreme Court revive it.

The justices used a portion of the hearing -- their first on cyberspace law -- to try to understand just how the Internet works, trying to determine how it compares to a telephone, a public street corner, or a public conversation that is open to everyone.

Kennedy questions closely

Kennedy, who will cast what could be a deciding vote in the case, closely questioned lawyers on both sides, showing some sympathy for Congress' effort to protect children but also revealing some concern that Congress may have gone too far.

He suggested that, while some parents might be able to monitor what their children view on the Internet, Congress may also have been trying to protect children whose parents are not at home or lack software that can screen out indecent items.

When a lawyer for Internet providers and users argued that the 1996 law would not stop computer-using children from finding indecent material because much of it originates overseas, beyond the law's reach, Kennedy said: "That is a weak argument, to say that the United States cannot lead the way."

Still, Kennedy appeared to worry that a decision upholding all of the 1996 law might send a signal that Congress could then outlaw indecent speech between adults on a street corner, if children were present. The argument the Clinton administration was making in favor of the law, Kennedy said, would mean that all discussion of explicit sex on a public street could be outlawed.

O'Connor, the other justice who often holds a swing vote, questioned the attorneys on the state of software technology for screening out children from Web sites offering indecent material. She questioned the scope of the government's power to regulate a medium as wide-open as the Internet.

She described it as "a public place because anyone can get online and have a conversation; it is much like a street corner or a park." Traditionally, the court has allowed more free speech in such public places.

Justice Antonin Scalia, a leading conservative on the bench, made repeated efforts to shore up arguments in favor of the 1996 law's constitutionality. He cautioned against striking down a law on the basis of the current state of technology for controlling access to the Internet, noting that he throws out his own computer every five years because it becomes out- of- date.

Chief Justice William H. Rehnquist asked several questions that seemed to convey his support for the legislation.

Breyer challenges law

Justice Stephen G. Breyer was one of several justices who reacted negatively to the law. The law, Breyer suggested, may go so far as to "suddenly make large numbers of high school students across the country guilty of a federal crime" because they exchanged e-mail messages to discuss their "sexual experiences, real or imagined."

Another justice who reacted skeptically to the law, John Paul Stevens, suggested that the law might make it a crime for a parent to have a 17-year-old child helping out with the computer as they try to screen out indecent material.

Justices Ruth Bader Ginsburg and David Souter also appeared to be troubled by the law's reach.

Pub Date: 3/20/97

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