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CDA Trial Transcript 5/10/96 (afternoon)


   	   	(1:48 o'clock p.m.)

   	JUDGE DALZELL:  Hello, Mr. Baron.

   	MR. BARON:  Good afternoon, your Honors.  Jason R.
   Baron for the Justice Department.  

   	I'd like to pick up where Mr. Coppolino left off, in
   outlining what are the available affirmative defenses to non-
   commercial content providers on the Internet.

   	JUDGE SLOVITER:  Before you do that, could you
   address briefly, if necessary, my question which is whether
   the availability of defenses -- the viability of the theory
   that if you have defenses in the statute, assuming that they
   were good defenses, that saves it from any over-breadth or

   	MR. BARON:  I think you would need to restate the
   question, your Honor.  Is it in the context of other statutes
   you're asking, or --

   	JUDGE SLOVITER:  No, has any Supreme Court case held
   that a criminal statute that has defenses in it is thereby
   saved from overbreadth.

   	MR. BARON:  I'm not aware of case law that parallels
   the statute, your Honor.

   	JUDGE SLOVITER:  Or is there any other statute like
   this that talks in terms of defenses to a criminal statute?

   	MR. BARON:  Other than the Dial-a-Porn context, I'm
   not aware of one that dovetails with the words of this

   	JUDGE SLOVITER:  I don't mean the words, I mean this
   context that the existence of a defense is enough to save the
   statute, that you have to consider it with the existence of a

   	MR. BARON:  Yes, but it is the position of the
   Government, however, that the broad nature of the affirmative
   defenses that are part of this statute do allow for
   sufficient defenses to be asserted so that there would not be
   a substantial number of applications that would be subject to
   the kind of overbreadth challenge that Mr. Coppolino was

   	JUDGE SLOVITER:  But you can't give us any

   	MR. BARON:  Not today, your Honor.  The touchstone
   of --

   	JUDGE SLOVITER:  We don't want more briefs. 
   (Laughter.)  But go ahead, Mr. Baron, we'll hear you.

   	MR. BARON:  The touchstone of what Congress intended
   by way of the affirmative defenses that are set forth in the
   CDA is of course the statute itself supplemented by its
   legislative history.  Congress not only provided for the
   concrete defenses that are listed in E5(b) regarding credit
   card, debit account, adult access code, adult personal
   identification numbers, but they went further.  The text of
   223 E5(a) provides for a broad range of affirmative defenses
   to be asserted by content providers based on their taking
   reasonable, effective and appropriate actions under the
   circumstances and in light of what is feasible based on
   available technology.  The statute represents a forward-
   looking approach to what everyone concedes is an
   extraordinarily creative, flexible and powerful new means of

   	The very words of the statute imply that what is
   feasible under the circumstances based on available
   technology today may change.  Congress expected that it would
   change.  Thus, the statute does not consist of a static
   snapshot of available defenses, but keys those defenses to
   what is feasible to do under available technology.

   	JUDGE BUCKWALTER:  And if none are available, then
   that is a defense, too?

   	MR. BARON:  Excuse me, your Honor?

   	JUDGE BUCKWALTER:  If none are available, is that a

   	MR. BARON:  The statute contemplates that there --
   well, I believe the evidence of record shows that there are
   certainly available defenses --

   	JUDGE BUCKWALTER:  Well, we might discuss that
   later, but -- 

   	MR. BARON:  But the -- 

   	JUDGE BUCKWALTER:  Maybe Judge Dalzell wants to
   discuss it now.  (Laughter.)

   	JUDGE DALZELL:  Well, I mean tagging isn't available
   now, is it?

   	MR. BARON:  It has been the evidence of record that
   as was evident from the first day of the hearings before the
   Court that there are schemes that the available standards and
   protocols of the Internet allow for putting in place, and
   that the marketplace is poised to allow for tagging and
   labeling schemes that are content selection schemes such as
   Congress envisioned.

   	JUDGE DALZELL:  But getting at what Mr. Hansen said,
   which is to say this statute is effective immediately.  But
   for the TRO and then the stipulation and order of February
   26th, this statute would be effective.  Are we agreed?  And
   therefore those defenses would be effective immediately.

   	MR. BARON:  Well, the power of the scheme that we
   have brought forth is if this -- by plaintiff's own
   concession this morning and by the testimony that you've
   heard from plaintiff's own witness, Mr. Vezza, as well as
   others, that if this hearing were being held in July or even
   earlier, it would be expected that Microsoft and Netscape and
   virtually all of the marketplace of browsers would be able to
   assimilate a PICs compatible labels and by the force of our
   argument other labeling schemes that are more generic.

   	So but for the fact that this was an expedited
   schedule and the Court has wanted to go forward in settling
   this matter on a facial challenge as fast as possible, we're
   in May, we may be in a different place in July.  That is the
   thrust of the Government's position on tagging, that it's
   poised, the marketplace is poised and the admissions there.

   	JUDGE DALZELL:  But it's not a defense now because
   it can't be.  Nobody has -L18 because it was just Dr. Olsen's
   idea that was born on or about April 1, 1996.

   	MR. BARON:  It was certainly something that was
   brought forward by our expert after the passage of the Act as
   one way that a content selection standard as envisioned by
   Congress in the conference report could go into widespread

   	Now, I --

   	JUDGE DALZELL:  Now, since it's not available, since
   we agree it's not available yet, right?

   	MR. BARON:  Certainly the -L18 standard as proposed
   by Dr. Olsen is not available today.

   	JUDGE DALZELL:  And neither is the PICs available.

   	MR. BARON:  It's certainly not widely available by
   the evidence presented in this court.

   	JUDGE DALZELL:  But what is available is, for
   example, what Compuserve tried to do, isn't it?  What more
   could Compuserve have done than it did before the FBI visited

   	MR. BARON:  I don't think that's a good example,
   your Honor.

   	JUDGE DALZELL:  Well, but would you answer my
   example?  What more could Compuserve have than what it did,
   assuming the CDA applied?

   	MR. BARON:  Let me say, Judge Dalzell, that I am not
   aware of all the facts and circumstances that have given rise
   to the set of correspondence that was just filed with the
   Court.  And I will say that --

   	JUDGE DALZELL:  I know no more than you do because I
   read their motion.

   	MR. BARON:  Correct, your Honor, and the evidence
   that submitted as part of the correspondence back and forth
   showed that the Justice Department was concerned that there
   may be obscenity with respect to the particular transmissions
   and forum at issue.  And so the transaction was captioned as
   the Communications Decency Act matter but the Communications
   Decency Act is obviously broader than 223(d).  Congress
   amended various provisions of the statute, including current
   existing obscenity law for on line communication.

   	So with that caveat, the question would be whether
   the posting of material in a Compuserve directory which is an
   adult directory and where parental controls are known to be
   in place, if that's the hypothetical that I can sort of boil
   -- boil down the Compuserve example --

   	JUDGE DALZELL:  Well, it's not hypothetical --
   right, and it's labeled, it's labeled adults only.

   	MR. BARON:  Correct.

   	JUDGE DALZELL:  And not in a titillating way as I
   recall.  It was just text.  It was just text.

   	MR. BARON:  I will take that as a given, your Honor. 
   The fact is that as we stated at page 62 of our post-hearing
   brief about other available means by which content providers
   could avail themselves of the affirmative defenses, and by
   means of Mr. Keeney's (ph) letter in the Shea case, the
   answer to your hypothetical would be, I would expect that
   there would be an affirmative defense in this situation.  But
   that matter would have to be evaluated under the facts and
   circumstances of the case.  But clearly there's an
   affirmative defense if there's that kind of posting under the
   available technology today.  But we have to go back to the
   words of the statute.

   	JUDGE BUCKWALTER:  So that right now, Mr. Baron --
   I'm sorry to interrupt you, but this either indicates the
   weakness of the Government's case or my lack of
   understanding, which is considerable in some of these areas. 
   As I understand it now under 5(a) there is no way to take an
   effective means -- for a speaker --  speaker to take
   effective means to make sure that someone under 18 doesn't
   get his material that is indecent or patently offensive.

   	MR. BARON:  No, that's not correct.

   	JUDGE BUCKWALTER:  What is the way?  I thought there
   was no effective way.

   	MR. BARON:  We set out a number of ways in our
   brief, in our post-hearing brief as well as in earlier briefs
   in discussion before the Court.

   	JUDGE BUCKWALTER:  Please tell me one of them.  I
   must -- maybe I don't understand.

   	MR. BARON:  I will concentrate on tagging, because
   it is the most simple and elegant solution.  But you're
   asking what other means are available.  And what we said was
   that --

   	JUDGE SLOVITER:  Effectively --

   	JUDGE BUCKWALTER:  That's not available now.  That's
   not available now and it's --

   	JUDGE SLOVITER:  It's hypothetical.

   	MR. BARON:  I think under a broad interpretation of
   what is available, the technology exists for putting that
   into place.  It's just a question of, as Dr. Olsen said, four
   hours of tweaking a Netscape proxy server to have 80 percent
   of the market put into place.  But conceding for the moment
   the thrust of the question --

   	JUDGE SLOVITER:  Effectively available and has been
   shown to work, let's put -- is that a fair modification?

   	JUDGE BUCKWALTER:  Yes, that's right, yes.

   	MR. BARON:  Okay.  But understanding your question,
   we did put forth as a secondary means the means of
   registering sites to make known to the world what your
   material consists of.

   	JUDGE BUCKWALTER:  I understand that, but that
   doesn't do -- that's not effective at all, is it under the
   present --

   	MR. BARON:  Well, I disagree, your Honor.

   	JUDGE BUCKWALTER:  Well, how is it effective?  I
   mean that person who registers his site, that doesn't
   guarantee that someone under 18 won't get into it.

   	MR. BARON:  Well, if the test, as plaintiffs would
   posit it throughout their voluminous filings in this case
   with declarations and their other papers -- their whole case
   is that your Honors should rule against the statute because
   it doesn't guarantee, in your words, or doesn't assure that
   every minor in the United States --

   	JUDGE BUCKWALTER:  Well, you don't have to do that,
   but effective certainly means that it has to have something
   more than no effect, or little, no or little effect.

   	MR. BARON:  And the evidence shows that if
   individual content providers make known to the world their
   sites that would be otherwise within the scope of the CDA,
   then that is enormously effective as compared with not making
   their sites known.

   	JUDGE BUCKWALTER:  Oh, well, as compared with not,

   	MR. BARON:  And therefore the surfwatches, the
   cyberpatrols, the major online services that either have in
   place parental controls today or are imminently about to have
   parental controls for not only their own proprietary systems
   but also the Internet, can take advantage of knowing that
   you're out there.  We have heard extensive --

   	JUDGE BUCKWALTER:  You have explained that and
   that's the position that I understood from the evidence.

   	MR. BARON:  And Congress did not say that one needed
   to take an action so as to be 100 percent effective, 100
   perfect.  Obviously the case law suggests that enterprising
   youth in a variety of contexts can overcome whatever schemes
   are in place.  So the question is, is there some reasonable,
   appropriate and effective measures, and the Justice
   Department has said it, both in this case as well as the
   collateral case up in New York, that there are those measures
   available today.  The key is to put the burden on the content
   provider to do something rather than nothing.  Because
   nothing means that left to its own devices, the parental
   control software just won't be effective.

   	JUDGE BUCKWALTER:  I understand that, but you're
   saying that something as just simply tagging his material or
   in --

   	JUDGE DALZELL:  But the something -- what does the
   something get you?  That's what I'm getting at.

   	JUDGE BUCKWALTER:  Yes, that's what I --

   	JUDGE DALZELL:  The something that Compuserve did --
   we don't have to hypothesize anymore.  They did something and
   it got them headlines in their local newspaper, in the
   Washington Times and other newspapers that A, undoubtedly was
   a catastrophe in the corporate life, and B, hurt their
   business according to Mr. Ennis, which is at least a credible
   hypothesis that it would do that.  That's what you get paid. 
   If you're wrong, you're going to find that your company or
   your organization is going to be the subject of a headline
   saying that you're peddling smut.

   	MR. BARON:  And I would submit to you, Judge
   Dalzell, that Compuserve might have a problem today under
   existing statutes going to obscenity independent of the
   Communications Decency Act.  That might be the reason for the
   headline as well.

   	JUDGE DALZELL:  All I can do is take your colleague
   in another division at his word.  And he cited the
   Communications Decency Act.  He did not cite 1864 or 1865. 
   He cited the CDA.  So I'm taking him at his word, that's all
   I'm doing.

   	MR. BARON:  But the correspondence that is of record
   in this action does explicitly say that the actions that were
   taken by the Department of Justice in the sort of initial
   look at this is possibly for obscenity provisions, not just
   223(d).  It does say that in the correspondence.

   	JUDGE DALZELL:  Well, not the one that I saw, but
   that's all right.  Move on.

   	MR. BARON:  It's a letter to Mr. Ennis signed by
   Terry Lord that is at Exhibit 3 --

   	JUDGE DALZELL:  I'm looking at the April 29th letter

   	MR. BARON:  Right.

   	JUDGE DALZELL:  -- the April 29th letter that was
   sent to --

   	MR. BARON:  There is a further letter.

   	JUDGE DALZELL:  -- to the complainant --

   	MR. BARON:  Right, there is a further letter at the
   top of Exhibit 3 to plaintiff's motion which does indicate
   that citizen complaints can be reviewed to the extent they
   may relate to other possible Title 18 violations.  And that's
   really a key to understanding what's going on there.

   	JUDGE SLOVITER:  Could I ask you the key -- well,
   maybe one key.  Is it your position, the Government's
   position, not personally, that a content provider could avoid
   criminal liability by tagging its material, or would some
   other action also be necessary?

   	MR. BARON:  Merely tagging by itself, just doing the
   four key strokes, -L18 or putting a PICs-compatible label or
   self-labeling is today not fully sufficient because you have
   to do something more.  The browsers of the marketplace have
   not been tweaked or tuned to get that label.

   	JUDGE BUCKWALTER:  Well, but what does the content
   provider have to do with the browsers, in that example?  I
   mean I'm a content provider, I put on there -L18, there you

   	MR. BARON:  Right.

   	JUDGE BUCKWALTER:  Now, I can't help it the browsers
   aren't configured out there in the market.

   	MR. BARON:  Well, that may be right, but the fact is
   that the evidence by plaintiff's own case shows that the
   browsers are going to move to a PICs-compatible labeling
   format which fully assimilates the alternative suggestions of
   character strings.

   	JUDGE BUCKWALTER:  But the point that Judge Sloviter
   made, I think, is that it is sufficient.  All a person has to
   do, a speaker, is to put -L18.  I'm using that example, and
   that's enough.

   	MR. BARON:  We have said in our briefs that on the
   condition that the marketplace has moved and the testimony
   before you says that it will imminently, then it would be an
   affirmative defense.

   	JUDGE SLOVITER:  Mr. Baron --

   	JUDGE BUCKWALTER:  That's the --

   	JUDGE DALZELL:  -- the official position of the
   department.  The official position of the department was
   expressed by the Acting Assistant Attorney General, the
   Criminal Division, to our three colleagues in New York on May
   3, 1996.  And the most he would say is, and I quote, "Under
   present technology, it is the position of the Department of
   Justice that, absent extraordinary circumstances, such
   efforts would constitute substantial evidence that a content
   provider had taken good faith, reasonable, effective and
   appropriate actions under the circumstances to restrict or
   prevent access by minors to the covered material."  Do you
   find that comforting if you were advising a client?  Oh,
   don't worry, here's a letter from Mr. Keeney (ph).  It just
   says that the jury might acquit you.  It doesn't say you
   won't be indicted, does it?

   	MR. BARON:  Well, your Honor, that's not the
   statute.  As plaintiffs would have you rule on it, what they
   are asking you to say is to strike down the statute because
   it doesn't as a per se matter establish in all cases what
   individuals can do.  But the statutory scheme, not only in
   E5, but in the E6 provision, which talks about the FCC
   describing measures which are reasonable, effective and
   appropriate and that the use of such measures shall be
   admitted as evidence of good faith efforts for purposes of
   paragraph 5, the statute is written in the terms of 
   evidence --

   	JUDGE DALZELL:  You mean the same FCC that gave us
   the Merrill Hansen (ph) decision, that said that the purpose
   was just one of many factors to consider.

   	MR. BARON:  The Congress broadly prescribed that the
   FCC has a role that it may describe these measures.  Along
   the way, the Department of Justice has in the context of this
   action, as well as the collateral proceeding in New York,
   sought to further make concrete what it is that content
   providers can do.  And they said it, that if you do these
   measures it will be absent extraordinary circumstances,
   substantial evidence of having an affirmative defense.

   	JUDGE SLOVITER:  Mr. Baron --

   	JUDGE DALZELL:  It doesn't say we won't prosecute

   	MR. BARON:  But that's not what the structure of the
   statute is either.  So --

   	JUDGE DALZELL:  Well, in a First Amendment setting
   surely you would agree with me that the chilling effect of
   prosecution is something we need to consider.

   	MR. BARON:  Of course, you may consider chilling
   effect in First Amendment cases.  But the -- but what
   plaintiffs would have you do is penalize the Congress by
   striking a statute which is very broadly worded with respect
   to reasonable, effective and appropriate actions.  And we've
   set to put flesh on that both in our briefs and in Mr.
   Keeney's letter which is not inconsistent with the briefs
   that we've filed in this action.

   	JUDGE BUCKWALTER:  It may be broadly worded but it's
   impossible to comply with, it seems to me, under the evidence
   that I've heard, except by virtue of the letter which you now
   say or someone says it's -- that mere labeling will be
   sufficient compliance.  But --

   	MR. BARON:  Not only is it not impossible to comply
   with, it's very easy to comply with.  Plaintiff's whole case

   	JUDGE BUCKWALTER:  The defenses are easy to comply

   	MR. BARON:  That the -- that the defenses, if the
   content providers who are putting a material that is sexually
   explicit within the definition of the CDA out into cyberspace
   in various forms, if they take just simple measures to ensure
   that the world knows that they're there, the Department of
   Justice is saying that that's substantial evidence of an
   affirmative defense.

   	JUDGE BUCKWALTER:  That's not what the act says
   though.  My point is that's not what the act says, that's
   what the Department of Justice says.

   	MR. BARON:  Well, we have keyed our defense of this
   act to the broadly worded provisions of E(5)(A) as well as
   the conference report that talks about a content selection

   	And I asked Dr. Olsen whether his scheme was a
   content selection standard, it is.  The self-labeling scheme
   that's embodied as part of the PICs methodology is a type of
   content selection scheme for content providers.  Congress set
   it out, we're not departing or going further afield than
   what's in the conference report.

   	JUDGE SLOVITER:  We have before us a motion for
   preliminary injunction.  It seems to me that you are arguing
   in your defense argument that there will be a way in due
   course in which one could comply with the statute because the
   brow-- the market -- and in your brief, the market will rise
   to the occasion, et cetera.

   	Inasmuch as all we're dealing with is what is
   available now because we're dealing with a preliminary
   injunction, why doesn't the Government concede that a
   preliminary injunction would be appropriate and wait for the
   permanent hearing until those matters become available so
   that they can be tested and see if even -- I mean these are
   the product of Mr. Olsen's creative imagination -- Dr.
   Olsen's creative imagination.  They may work and they may not

   	But at the moment we haven't seen anything that does
   work that wouldn't also effectively block some of the
   material from adults.  And therefore why this big challenge
   to the preliminary injunction part of it until the market
   catches up?

   	MR. BARON:  Well, we -- I have several responses to

   	JUDGE SLOVITER:  Yeah, and I'd be interested.

   	MR. BARON:  It's not Dr. Olsen's imagination, it is
   the testimony of plaintiff's own witnesses, both with respect
   to Mr. Bradner's extensive testimony on the standards and
   protocols of the Internet and Mr. Vace's testimony about the
   W-3 consortium.

   	There is a creative genius in the Internet other
   than Dr. Olsen's own creativity.

   	JUDGE SLOVITER:  Yeah, but Dr. Olsen's plan depends
   on the content provider doing this whereas, as I understand
   it, the PICs plan necessarily involves the receiver who is
   willing -- 

   	JUDGE BUCKWALTER:  Well, a proxy --

   	MR. BARON:  Or third-party labeling services, a
   complex scheme --

   	JUDGE SLOVITER:  So there's a -- I think that --
   yeah.  That's a very big difference.

   	MR. BARON:  -- where parents would be relying on any
   number of sources other than the content providers, that the
   burden is not on the content provider to do anything,
   although it allows for it, but that Congress would require

   	To respond to the point, this --

   	JUDGE SLOVITER:  I mean how can we sustain it today
   based on some hypothetical catching up in the marketplace in
   the future?  Is really what I'm troubled about.

   	MR. BARON:  I would hope, your Honors, that an
   aspect of your decision would be an acknowledgement of the
   substantial, if not overwhelming, testimony that the
   marketplace is poised to provide a tagging scheme which would
   be a defense under the CDA so that the marketplace, this
   litigation and the marketplace will catch up with each other. 
   But short of --

   	JUDGE SLOVITER:  Nobody -- nobody said it was really
   working, as I -- I mean except for soft spots which I, but my
   reaction was it was pretty minuscule, as you pointed out in
   cross-examination, in the marketplace, this all is including
   PICs, something that is supposedly about to happen that all
   sorts of things can happen that will affect that.

   	And I, just as a practical matter, they put on
   evidence or testimony of chill or possible -- of chill and
   that certainly is credible testimony, how can -- how can we
   as a matter of judicial responsibility sustain against that
   chill on the basis of what isn't there now?  And that's my
   basic question to you as on the defenses.

   	MR. BARON:  Well, obviously if the Court were
   inclined to say there are no available defense under E(5)(A),
   then one -- as of today, then one possible action is to
   suspend implementation of E(5)(A) as opposed to E(5)(B), for
   a period of time pending development of the tagging schemes
   in the marketplace.

   	But I am not willing, as I stand here, to concede
   that the other available means set out in our brief, which
   include registration or posting to limited participation
   forums or other matters that are set out -- 

   	JUDGE DALZELL:  For the credit cards, but of course
   the people who do that already are the people who are the

   	MR. BARON:  Well, and there were a variety of other,
   right, and access codes and third-party registration.

   	JUDGE DALZELL:  So the only thing that you're going
   to prevent if the CDA is sustained are the teasers.

   	MR. BARON:  I would beg to differ, your Honor,
   because there has been testimony from Dr. Olsen, and I
   realize that there is cross testimony on this, that there are
   a number of content providers or organizations, non-profits,
   who can put in place third-party registration schemes as a
   technical matter or come up with other types of access
   restriction and proxy server schemes.  His extensive
   declaration on that is part of the record. 

   	JUDGE DALZELL:  Let's take Mr. Kuromiya's group
   which is a non-profit group which as I recalled his
   testimony, of very modest means, okay.  So for credit card
   identification, the evidence is that unless it's accompanied
   by a commercial transaction, the verifier is going to charge
   you something.

   	I think he testified that there were -- just pick a
   number, 20,000 hits a month, okay?  That's $20,000 right
   there, that's $240,000 per annum that I suspect this
   organization doesn't have for credit card identification.

   	Now, wouldn't you agree with me that Mr. Kuromiya's
   group, that credit card identification is a non-starter for

   	MR. BARON:  Uh, I --

   	JUDGE DALZELL:  Because it would come out of their

   	MR. BARON:  I'm not sure I would want to concede all
   the hypothetical facts in that because, as the Court is well
   aware, there has been substantial testimony about what hits
   mean and how it actually translates into real individuals
   where you would have to do a verification.

   	JUDGE DALZELL:  So whether it's 16,407 people
   instead of 20,000, it's still more money than he has.

   	MR. BARON:  I would concede that the credit card
   defense may not be available to each and every individual who
   is a content provider, that is correct.

   	JUDGE DALZELL:  And in fact, since we're talking
   about Mr. Kuromiya's group, he wants to reach people under
   18.  So is that an admission for the Grand Jury?  And you
   know he's going to show them some very graphic depictions of,
   as I understand it, the male sexual organ, at least the male
   sexual organ.  Okay?  He wants to do that and he's probably
   going to do it in a titillating and pandering way because he
   wants to get their attention, that's his purpose.

   	MR. BARON:  Well, I want to put --

   	JUDGE DALZELL:  So should we say to him get, you
   know, we'll give you the guidebook to Federal correctional

   	MR. BARON:  Well, I want to put aside as a legal
   matter for this, for the purposes of this part of the
   discussion whether or not he -- his actions would meet or not
   meet the legal standard of patent offensiveness.

   	But he certainly does have a variety of means today
   to segregate out that portion of his site and perhaps use a
   third-party registration scheme or some other scheme short of
   merely relying on tagging.

   	JUDGE DALZELL:  No, perhaps I'm not being clear
   enough.  He doesn't want to block to people under 18, he
   wants to reach them.  They're sexually active, he just
   doesn't want them to die of AIDS, that's all.  So he wants to
   reach them, he wants to entice them to learn about safe sex.

   	MR. BARON:  I can't respond to an individual --

   	JUDGE DALZELL:  Is that bad faith on his part?

   	MR. BARON:  -- who doesn't want to take advantage of
   the affirmative defenses, notwithstanding a known quantity
   that he might otherwise be liable under the act.  But let 

   	JUDGE DALZELL:  So he ought to just take his

   	MR. BARON:  But let me say this: the only proposal
   that the Court has heard as an alternative to putting the
   burden on content providers that is -- that comes in any way,
   shape or form in terms of effectiveness is a proposal to
   block the entire Internet based on unrated sites. And if Mr.
   Kuromiya doesn't want to rate his site or take any other
   affirmative action, his site would be blocked under Mr.
   Ennis' theory of --


   	MR. BARON:  -- the PICs compatible label.

   	JUDGE DALZELL:  But that's because the parents of
   the under 18 year old user have made that decision, a very
   big difference, you would admit, than the Government making
   that decision for them.

   	MR. BARON:  Well, the fact is that the scheme, I
   mean the ironic position of the parties before the Court
   today is that we want the Internet to be available to
   children based on the findings of Congress that said this is
   a dramatic, wonderful medium of educational value.  And if
   you look at the proposal to block everything, it makes no
   sense.  99.9 percent of the Internet or thereabouts, as Dr.
   Olsen testified, would be blocked if you're merely relying on
   third-party labeling schemes such as envisioned by PICs to
   label a few thousand or even tens of thousands of URL's.

   	Professor Hoffman's testimony was at last check
   there are 22 million URL's just on the World Wide Web.  There
   is testimony in this action that the World Wide Web is
   growing every two months, that the Internet is doubling nine
   to -- every nine to twelve months.

   	The third-party labeling schemes such as envisioned
   just can't keep up and anybody can do the mathematics to show
   that the effect of a PICs scheme that blocks sites is going
   to block virtually everything.

   	JUDGE DALZELL:  So it's better for Mr. Kuromiya to
   bear the risk of going to a Federal correctional institution
   because he guesses wrong?

   	MR. BARON:  Uh --

   	JUDGE DALZELL:  As apparently Compuserve guessed

   	MR. BARON:  Your Honor, I just will not concede that
   Mr. Kuromiya is within the scope of the act for the purpose
   of this discussion.  And if he doesn't want to avail himself
   of any access measures, well, then -- then he can take the

   	JUDGE SLOVITER:  You referred us to 5(B) as an -- I
   think you said, well, if 5(A) is not effectively available
   right now, they still have 5(B).

   	Is 5(B) available, just fill me in on this, to chat
   groups and news groups and -- or is it the 5(B) being credit
   card, debit account, adult access code or adult personal
   identification number.  There are lots of speakers back and
   forth in this whole other area, other than the commercial
   pornographers.  Is 5(B) directed toward them?

   	MR. BARON:  There may be -- there are applications
   that non-commercial providers can avail themselves when
   they're in those applications that some of these defenses
   might make sense.  It might make sense based on available
   software on a particular proprietary chat room to have an
   access code, for example.

   	JUDGE SLOVITER:  But you agree that by and large
   these are not effectively available to most chat rooms and
   you know the stuff, news groups, is that what they're called?

   	JUDGE DALZELL:  Right, right.

   	JUDGE SLOVITER:  Chat rooms.

   	MR. BARON:  Well, they have to parse it by
   application but there, certainly there the availability
   differs by the various applications.

   	JUDGE SLOVITER:  I understood your brief to say that
   it was mostly designed for --

   	JUDGE BUCKWALTER:  For Web sites and bulletin
   boards, isn't that right, for --

   	JUDGE SLOVITER:  Commercial, yes.

   	MR. BARON:  It is certainly possible to utilize
   E(5)(B) for Web sites and bulletin boards and certainly in
   the commercial context it's done all the time.

   	JUDGE SLOVITER:  Now, as a matter of law, if you are
   telling us that we should sustain this -- I mean we do deal
   with law -- if you are telling us that we should sustain the
   statute based on the availability of defenses and defense
   5(A) is not effectively available now and defense 5(B) covers
   at most only some but not most of the Internet users, then
   would we be effectively, as your brief seemed to suggest, at
   least to me, cutting the statute down to apply only to the
   commercial type user and then we would put in the discussion
   with Mr. Coppolino who was really purveying pornographic

   	MR. BARON:  You could certainly, short of striking
   the statute, you could parse the statute in that manner.

   	JUDGE SLOVITER:  Isn't that what we would have to do
   based on what you say in your brief?

   	MR. BARON:  Well, your Honor, let me go back.  I
   understand that there is difficulty accepting an argument
   that because of the marketplace being poised to do something
   and the widespread availability today not being there, that
   the main proposal, which is the elegant, simple proposal that
   we put forward may not be an available defense.

   	But we've suggested alternatives and I am not
   willing to stand here and concede that notions of letting
   your site be known in cyberspace through the registration
   process that we've suggested, the multiple ways that you can
   make it known isn't an available defense that the Justice
   Department would take as substantial evidence en route to
   where we're going to be in a couple of months time which is
   widespread availability of tagging schemes.

   	Well, your Honor, with all --

   	JUDGE SLOVITER:  Maybe, I mean, you know.

   	MR. BARON:  Well, we've heard evidence of the --

   	JUDGE SLOVITER:  And we saw that they couldn't get,
   what couldn't we get on the -- oh, we couldn't get London or

   	JUDGE BUCKWALTER:  We couldn't get Paris so we
   settled for London.

   	JUDGE SLOVITER:  We couldn't get Paris.

   	MR. BARON:  No, there are --


   	JUDGE SLOVITER:  No, I mean all I'm suggesting is
   that -- and it wasn't really facetious.  All I'm suggesting
   is that technology doesn't always go where you expect it to
   go.  Space ships blow up, also, I mean, so we cannot assume
   that something will work until it has actually worked.

   	MR. BARON:  But we're -- 

   	JUDGE SLOVITER:  I mean -- 

   	MR. BARON:  But your Honor --

   	JUDGE SLOVITER:  And that's all I'm -- I'm

   	MR. BARON:  With all due respect, we are not
   operating in a vacuum where I'm making an oral argument prior
   to an evidentiary hearing.  We have had five days of
   testimony.  We have a consortium --

   	JUDGE SLOVITER:  And all we got was hypotheticals so
   that we expect that this will be available.  I'm -- I'm
   looking, I went through this evidence afterwards, based on
   your brief, and I'm looking for specific examples of
   operating systems in which your defenses would actually work,
   not based on something that might happen if you put X
   together with Y, but this is really working.  

   	And except for Surfwatch which you kept pointing out
   was minuscule, there isn't anything that's actually working
   that you can point to, to say to a potential defendant: use
   that.  Is there?

   	MR. BARON:  Well, I would disagree with that.

   	JUDGE SLOVITER:  Well, what -- what would you point
   us to in the evidence?

   	MR. BARON:  I mean the findings that plaintiffs have
   put in and the evidence of record would suggest that there
   are other parental controls.

   	JUDGE SLOVITER:  But what do you point us to?

   	MR. BARON:  I can point you to the fact that the
   major on-line providers either do or are about to implement--

   	JUDGE SLOVITER:  Are not about to.  Do now --

   	MR. BARON:  -- parental controls.

   	JUDGE SLOVITER:  This is the preliminary injunction,
   what do they do now?

   	MR. BARON:  For Compuserve or Prodigy, Cyber Patrol
   is present.  So it's a large subscriber base and there are,
   there are a variety of parental control software products
   that are out there.  What we are suggesting is they are
   known, they're known to the plaintiffs in this courtroom.

   	JUDGE SLOVITER:  But the parental control software
   doesn't provide a defense to the content provider, does it?

   	MR. BARON:  I believe it, not by itself because it
   doesn't work by itself because of delays and because of the
   inefficiencies in relying on just sort of an ad hoc matter
   for them to pick up sites, as we've got abundant evidence. 

   	But what the -- the act puts the burden, Congress
   put the burden on those that would put inappropriate material
   for children up in cyberspace.  And we should let that burden
   stay where it is and make those individuals do something.

   	And what the -- we have suggested is that en route
   to the widespread availability of a tagging scheme which, as
   Dr. Olsen said, take four hours for Netscape to change their
   proxy server to get 80 percent of the market and those kind
   of actions, en route to that there are actions that the
   providers can take today.

   	JUDGE DALZELL:  Wait a minute, to beat a live 


   	JUDGE DALZELL:  -- Compuserve has used available
   options and they're being reviewed, investigated by the FBI. 
   It's not over.

   	MR. BARON:  I just will not accept that as a good
   example because of the particular circumstances of the
   referral being potentially on obscenity and we've cleared it
   up in a letter.

   	JUDGE DALZELL:  Even though the April 29 letter
   never mentions it?

   	MR. BARON:  Your Honor, well, the prior colloquy
   would establish.

   	JUDGE DALZELL:  No, we have to be -- this is deadly
   serious to Compuserve, you know, deadly serious.

   	MR. BARON:  And I would suggest that --

   	JUDGE DALZELL:  And that's why a preliminary
   injunction, you know, we have to do these things to get at
   this now because it's having effects now.  If we had any
   doubt about it, we just read the Columbus Dispatch of the
   last two days, right?

   	MR. BARON:  Well, your Honor, the --there are
   existing laws on the books about obscenity that are being
   flouted by individuals, not just in cyberspace, but I mean
   the fact is that there's a lot of stuff that would meet the
   obscenity statutes independent of the passage of this act.

   	JUDGE DALZELL:  Of course, and nobody is arguing
   about that here.

   	MR. BARON:  And the individuals are putting it up in
   cyberspace and, you know, they may or may not be prosecuted. 
   Not everybody who drives over 55 miles an hour gets a ticket.

   	JUDGE SLOVITER:  Thank heavens.

   	JUDGE DALZELL:  Right.


   	JUDGE DALZELL:  All I can tell you, Mr. Baron, is
   when your colleague, Mr. Moore, wrote to Mr. Truman on April
   29, 1996, the only statute he cited was to CDA, the only one.

   	MR. BARON:  But -- but, your Honors, as a matter of
   law the Communications Decency Act did amend obscenity
   provisions and other provisions that are now part of this
   litigation.  And so I mean it could be fairly read as that.

   	JUDGE DALZELL:  So maybe in the Communications Act.

   	MR. BARON:  Well, it could be read as --

   	JUDGE SLOVITER:  At the risk of incurring Judge
   Dalzell's forever anger, let me get you to another point off
   of the Compuserve.  And that is you have in your brief, you
   say in your brief, you make the argument that chat rooms
   because that -- go back to my -- and other four that contain
   indecent material could be segregated to adult areas by -- of
   cyberspace, I don't understand that argument.  Would you
   explain?  Is that what you meant when you said in our brief
   we raise some others?  I don't understand --

   	MR. BARON:  Well, there's --

   	JUDGE SLOVITER:  What testimony you're relying on
   for that and what it would do.

   	MR. BARON:  There -- there are other actions that
   could be taken --

   	JUDGE SLOVITER:  But you mentioned that one.  Where
   does that appear in the testimony?

   	MR. BARON:  The -- the stipulation of the parties
   and Dr. Olsen's declaration talks about various other
   applications that you could have limited participation areas
   or forums whereby you have a known list of people who have a
   part of that cyberspace forum.  It's a limited application. 
   But I'm not suggesting --

   	JUDGE SLOVITER:  Well, wait a minute, would it need
   to have a gatekeeper, a live gatekeeper in order -- you know,
   in order to -- somebody -- is that what you mean?  I guess
   I'm trying to find out what you mean by this.

   	MR. BARON:  It certainly could have a live
   gatekeeper who allows access into a forum depending on
   whether one is an adult.  You wouldn't have to have a live
   gatekeeper, you could set up something else. 

   	JUDGE SLOVITER:  Now, how do they find out if one is
   an adult?

   	MR. BARON:  Through either supplying credit card or
   virtual card over the Net or other means by which --

   	JUDGE SLOVITER:  But suppose it's not commercial so
   you wouldn't have a credit card?  I'm just trying, you know,
   it's vague, I'm trying to put it all together.

   	MR. BARON:  There are a number --

   	JUDGE SLOVITER:  I'd like to sustain this but give
   me arguments based on your record.  Go ahead.

   	MR. BARON:  Well, there are a num-- number of forms. 
   We have set out in the stipulation so the parties, beginning
   that they were moderated forums but there's also limited
   participation forums on list serves or one can set out news
   groups that are of limited participation or in chat rooms
   that allow for only adults to be admitted by a gatekeeper or
   otherwise.  But --

   	JUDGE SLOVITER:  Okay, you mean a gatekeeper?

   	MR. BARON:  Yeah.

   	JUDGE SLOVITER:  Now, you also suggest that --

   	MR. BARON:  I'm not suggesting that's a widespread
   solution to all the problems in cyberspace, it's a secondary
   matter that can be taken care of in certain applications.

   	JUDGE SLOVITER:  You also suggest that where a proxy
   server would be a vehicle that would operate with the
   tagging.  What is the current technology that would enable a
   trusted proxy to obtain the relevant age information and
   whose testimony do you rely on?

   	MR. BARON:  Well, Dr. Olsen testified about the
   ability to set up proxy servers to receive tags and also to
   have access codes or hash codes, other type of methods could
   be set up on particular Web sites to allow for adults coming

   	JUDGE SLOVITER:  Right, but with all due respect to
   Dr. Olsen, this is all his hypothetical --  I mean he was, he
   was really talking as a hypothetical analyst, this could
   happen and this could happen and the other could happen, is
   that not correct?

   	MR. BARON:  Yes. 

   	JUDGE SLOVITER:  And there's no evidence that it's
   currently feasible and happening, is there?

   	MR. BARON:  Uhm --

   	JUDGE SLOVITER:  If there is I'd like to know where
   it is.

   	MR. BARON:  Right.  No, there isn't evidence that
   these plaintiffs have put these particular measures into
   effect, but the evidence suggests that it would be easy to do
   so and they could avail themselves of the 223(E)(5)(A)
   provisions for doing so.

   	Obviously it may not be available in all cases. 
   That's why we have emphasized the tagging and registration
   scheme as a way en route to a better solution which is
   feasible under the whatever available technology there is to,
   as the way by which content providers can avail themselves of
   a remedy.

   	I'm not sure how much --

   	JUDGE SLOVITER:  And the tagging scheme is something
   that Dr. Olsen thought of after you hired him as an expert as
   I think the questions brought out when he testified?

   	MR. BARON:  He certainly amplified on a tagging
   scheme which was suggested itself by the legislative history
   which suggested content selection standards and other
   available measures would be an affirmative defense.

   	So we weren't inventing something out of whole
   cloth, we are hooked to the conference report that suggests
   that measures which plaintiffs here know very much about,
   given that they represent some of the people that are behind
   the PICs standard, can effectuate.

   	JUDGE DALZELL:  But just in terms of the defense, if
   Bianca's Smut Shack were to tag itself minus L-18, that
   doesn't advance the ball one bit, does it, until the software
   is out there?

   	MR. BARON:  Well, Bianca's Cage actually does
   represent affirmative actions which have been taken by a
   content provider to provide their IP address, their computer
   address in cyberspace to the unknowns for blocking purposes. 
   And that, I would submit, is an action which comes within
   what we suggested at Page 62 of our brief as well as in Mr.
   Keeney's letter as something that an affirmative action that
   someone has done.

   	Now, it would have to be evaluated.

   	JUDGE DALZELL:  But it has to be effective, doesn't
   it?  You have to, in order to avail yourself of the defense,
   it has to be effective, doesn't it?

   	MR. BARON:  Well, she has given notice in some sense
   to the world that -- that that page exists.  And we are not
   suggesting that the burden is great with respect to
   individuals.  There are --

   	JUDGE SLOVITER:  But how does that keep under 18's
   from accessing it?

   	MR. BARON:  Because the--

   	JUDGE DALZELL:  Yes, that's exactly what I'm getting

   	MR. BARON:  Because it notify-- because it does
   provide for some notification where she hasn't done -- she
   hasn't availed herself of all the kinds of steps that we set
   forth in both the letter and our brief, but the fact is that
   there is some notification to the world of the blocking
   software that's out there today so as it can be effectively
   blocked from sectors of -- of -- that are either subscribed
   to various ISP's or on-line services.

   	It doesn't -- I'm not going to represent --

   	JUDGE SLOVITER:  How do you block -- yeah --

   	MR. BARON:  -- that it's blocked for everybody.

   	JUDGE SLOVITER:  But how do you block for Judge
   Dalzell's ten year old and at the same time let Judge Dalzell
   see it, if he wants to?

   	MR. BARON:  The parents and would be availing
   themselves of the turning on or off the software or the
   browser that existed to either block or not block that site. 
   But they wouldn't even know.  What if, just imagine, as I've
   said, we are talking about a vast realm here, it's impressed
   all the different applications, the Internet.  This is a
   complex area where it's not just one size fits all, there are
   lots of applications.  The fact is that through the
   affirmative actions that content providers could take, they
   can make a difference.  And maybe they can't make as
   effective a difference today as if I were back here in July
   with the PICs standard having been adopted by Netscape and

   	I assure you that if I were here in July and that--

   	JUDGE SLOVITER:  You may be, you know, one way or
   the other for a permanent injunction.  You know, we're going
   to -- whatever happens they'll ask for a permanent
   injunction, I guess.

   	MR. BARON:  As long as they employ me at the
   Department of Justice and I'm still on the case, I'll be back
   here.  The fact is I may be back here --


   	MR. BARON:  -- and arguing that there isn't a more
   effective solution than what we argued at the preliminary
   injunction hearing, but that's not to say that there isn't
   something that content providers can do.

   	And again the irony is that it would be plaintiffs--

   	JUDGE SLOVITER:  But it's not a negligence suit.  I
   think what Judge Dal-- what's been bothering, you know, Judge
   Dalzell is, one, we're not sure that the U.S. Attorney's
   Office in all of the districts is as reasonable as you and
   Mr. Coppolino have been in the course of this litigation.

   	MR. BARON:  Well, I -- your Honor, it is not just --

   	JUDGE SLOVITER:  And there isn't --

   	MR. BARON:  -- Mr. Coppolino and I, it is Mr. Keeney
   who is the acting Assistant Attorney General for all the
   District Courts in the United States --

   	JUDGE SLOVITER:  Well --

   	MR. BARON:  -- for all U.S. Attorneys making this

   	JUDGE DALZELL:  And Mr. Lord.

   	MR. BARON:  Yes.  And individual cases may be
   investigated under their facts and circumstances.  Now,
   obviously not under the stipulation for this --

   	JUDGE SLOVITER:  Well, investigation is not a
   prosecution, so I mean, you know, that I'm -- that troubles
   me a little less, frankly, than, you know, anybody, the FBI
   can investigate anybody and, you know, I'm not concerned
   about that although there might be a chill involved in that
   as well. 

   	Go ahead, Mr. Baron.

   	 MR. BARON:  Well, I would hope not because it's an
   isolated case and I'd hope that there wouldn't be.  And we
   are adhering to the stipulation that the Court entered.

   	JUDGE SLOVITER:  We don't -- we don't deny that,
   yeah.  Or I don't think the plaintiffs deny that, I don't
   know.  Go ahead.

   	MR. BARON:  I would submit to your Honors that we
   are proposing simple solutions.  What plaintiffs are
   proposing are very complex ones.  We have pointed out--

   	JUDGE SLOVITER:  No, the plaintiff wants to declare
   the statute unconstitutional, period. 

   	MR. BARON:  But the --

   	JUDGE SLOVITER:  And that's not very complex, when
   you think about it.

   	MR. BARON:  -- solution --


   	MR. BARON:  The solution for -- for the problem
   represented that Congress was addressing is not to have
   parents absorb the costs and absorb the complexity of going
   out to third-party labeling schemes in the hope of catching  
   particular sites when there is simple actions that content
   providers can take.  That's the essence of our case.  We
   believe the affirmative defenses do work, that we have
   suggested a wide array of them, both for the future as well
   as for the present, we believe that those defense -- the
   actions that content providers can take certainly represent
   more effective deterrent than relying on Surfwatch alone.

   	And, for that reason, I'd submit that the
   affirmative defense provisions should be upheld and the CDA
   should be upheld.

   	JUDGE DALZELL:  I don't know whether you or Mr.
   Coppolino are dealing with the question of the simply talking
   about defenses.  In your brief at Page 37, Footnote 5 and the
   text associated with it, you heap ashes on Ms. Warren's
   concern about a prosecution and you ridicule her statement
   that, quote, "All that is needed is for some person or group
   of people in some community in the United States to have a
   problem with my existence on line and to come to the Justice
   Department with a complaint," close quote, as though that's
   not depicting reality, that she shouldn't worry about that.

   	Of course, isn't that exactly what happened with

   	MR. BARON:  Oh, I --

   	JUDGE DALZELL:  A group went to the Justice
   Department with a complaint?

   	MR. BARON:  There may be complaints, your Honor,
   that is not a reason for striking down a statute and a facial
   challenge.  These cases have to be -- there is -- there are
   powerful reasons to let the CDA be upheld and let the
   marketplace and its creative genius as represented by many of
   the plaintiffs and the organizations that are here in the
   court to make -- to ensure that there are measures that
   individuals can take.

   	And I submit that the briefing in this case is going
   to look a lot different six months or a year or two years
   from now because there will be, that if the CDA were upheld,
   that at least for on a preliminary basis subject to further
   proceedings, there will be a number of measures which I'm
   sure the plaintiff's community will come up with as well as,
   you know, others to ensure  that individuals can screen or
   block inappropriate material. 

   	JUDGE DALZELL:  But doesn't the record show --
   doesn't the record show that they don't need a CDA for this,
   that the market forces are so powerful, they exist out there
   without a CDA.  Because parents like me and -- are worried
   about their ten year olds and twelve year olds and America On
   Line and Compuserve and all these other folks better have an
   answer soon or they're not going to have my business, or
   people like me.

   	So that they don't need a CDA to have that goad to
   come up with that technology, do they?

   	MR. BARON:  I think the --

   	JUDGE DALZELL:  I mean that's the record that's been
   developed here.

   	MR. BARON:  It's -- and there -- we are, the two
   sides are not clashing completely on the issue of the -- the
   facts that there are parental controls and certainly we are
   relying in part that they do exist out there.  But we have
   also shown in the testimony Mr. Coppolino alluded to that
   through cross-examination of Ms. Duvall through Mr. Schmidt's
   testimony and through Dr. Olsen that the site, that the --
   that the third-party software mechanisms just can't keep up. 
   And there are -- there -- it's a flawed remedy and there is a
   tremendous amount of inappropriate material that will seep
   through.  And I think --

   	JUDGE SLOVITER:  But you know -- 

   	MR. BARON:  -- otherwise Congress is throwing up its

   	JUDGE SLOVITER:  Well --

   	MR. BARON:  And it can't do anything.  I mean you
   heard here an unwillingness on the part of plaintiff's
   counsel to say that there was any effective legislation which
   they would substitute for the CDA.

   	JUDGE SLOVITER:  I wouldn't expect them to come out,
   I wouldn't expect the American Civil Liberties Union, knowing
   its history, to come up with something that required self-
   tagging or to acquire some.  I mean it's just that's an
   unrealistic position.

   	But you knock their argument that we can use
   parental controls on the ground well, it's really, and not
   really effective and they won't be effective.  And yet I'll
   ask you the same question that I asked Mr. Coppolino, on the
   other hand you're asking us to sustain the statute based on
   defenses that are not even in being, much less I mean where
   the technology is not even in being much less not effective. 
   And we won't know whether it could be effective until it's
   tried and somebody doesn't come up and say to us: well, it
   isn't really going to work because some clever 16 year old
   knows how to get around it anyway.

   	Until it works we don't know how it -- until it
   exists, it isn't working  and until it works, we don't know
   how well it will work.

   	MR. BARON:  Well, I --

   	JUDGE SLOVITER:  I mean tell me what's wrong in that
   problem statement of your position?

   	MR. BARON:  You have to accept that on
   representations going forth from defendants that there are
   measures which would constitute, absent extraordinary
   circumstances, substantial evidence of an affirmative defense
   today.  Mr. Keeney's letter says that as well as our brief.

   	If you accept that proposition, then in as applied
   challenges it will -- the law will develop.  And it will also
   develop that in short -- in very short order there will be an
   extremely effective solution as we suggested and as
   plaintiffs have alluded to.  So --

   	JUDGE SLOVITER:  I don't want to --

   	JUDGE DALZELL:  By the way -- by the way, for future
   reference in the event this act would be upheld and I'm
   instructing a jury as to burden of proof, who has the burden
   of proof as to these defenses, affirmative defenses, what's
   your position?

   	MR. BARON:  The Government always has, absent a
   statute, well, let me start again.  The Government has the
   ultimate burden of proof and -- but one would expect that a
   plaintiff -- I'm sorry, that a defendant in a criminal
   context would have to make some sort of showing that there is
   an affirmative defense --

   	JUDGE DALZELL:  Well, they'd make a showing but then
   the burden of proof --

   	MR. BARON:  -- going forward.

   	JUDGE DALZELL:  -- would go back to you to prove?

   	MR. BARON:  Yes.

   	JUDGE DALZELL:  That it was not --

   	MR. BARON:  Yes, unless there's unusual
   circumstances, statutory or otherwise, that would be the
   usual formulation.

   	I have no further questions -- or no further --


   	MR. BARON:  -- remarks to make, subject to your
   further questions.

   	JUDGE SLOVITER:  Well, I will say, as I always do in
   the Court of Appeals, that questions do not indicate that the
   panel has reached any conclusion at all and the fact that we
   have asked both you and your colleague, Mr. Coppolino,
   pointed questions and that you have answered very well
   doesn't mean really -- you know, we just ate lunch, we didn't


   	JUDGE SLOVITER:  Thank you.

   	MR. BARON:  All right, thank you.

   	MR. HANSEN:  Your Honors, might I ask that we take a
   very brief recess between at this point so that Mr. Ennis and
   I can confer to determine whether we feel we need rebuttal
   argument and, if so --

   	JUDGE SLOVITER:  All right, especially if you come
   back and you tell us you don't need rebuttal argument, five

   	MR. HANSEN:  Well, at least to make it more


   	MR. HANSEN:  Thank you. 

   	JUDGE SLOVITER:  Is that all right?  No, five,
   let's, I mean you can do that in five minutes, can't you?

   	MR. HANSEN:  Absolutely. 

   	JUDGE SLOVITER:  Yeah, cause we...

   	(Court in recess; 2:46 to 2:55 o'clock p.m.)

   	MR. HANSEN:  Well, your Honor, I'm sorry, we weren't
   able to restrain ourselves completely from any rebuttal
   argument, but I think we've managed to make it quite -- both
   Mr. Ennis and I will be quite brief.

   	JUDGE SLOVITER:  How brief?

   	MR. HANSEN:  I will take less than -- if I got no
   questions I would use less than five minutes.


   	MR. HANSEN:  If I get questions, I can't --

   	JUDGE SLOVITER:  You don't want equality? 

   	MR. HANSEN:  Certainly I can't speak, nor can I
   speak for Mr. Ennis as to how much time he's going to need.

   	I'd like to pick up on the discussion that the Court
   was having with Mr. Baron at the end in the nature of the
   changes in technology that may or may not occur over the next
   six months.  And I'd like to talk about how even if
   technology does in fact change over the next six months and
   even if we are back at a -- at the final injunction stage six
   months from now and PICs has come into place or PICs hasn't
   come into place, I think there are still two things that are
   enormously troubling about this statute and which I think the
   Court must necessarily wrestle with.

   	The first is the nature of the speech that is
   criminalized under this statute.  And if we had any doubt at
   all about the intent of Congress to reach valuable speech
   under this act, all we have to do is look at the statute.  At
   three separate occasions in the statute Congress reached out
   to say we intend the statute to apply to libraries and we
   intend the statute to apply to institutions of higher

   	Congress, I think, was making it unmistakably clear
   that they intended to reach out and criminalize --

   	JUDGE SLOVITER:  Is that in 223?

   	MR. HANSEN:  It's at three separate occasions in the
   statute, your Honor.

   	JUDGE SLOVITER:  Yeah, but it's a big statute, do
   you mean the two sections that --

   	MR. HANSEN:  Yes.

   	JUDGE SLOVITER:  --  you are challenging?

   	MR. HANSEN:  Yes, yes, it is in the sections we're
   challenging.  The first place it appears is in the 223(F) in
   the definitional section.  You know, 223(H) in the
   definitional section where it talks about the term "library"
   means library -- means --


   	MR. HANSEN:  -- means library is defined in another
   statute.  Earlier in -- and that's H.  Earlier in F there is
   a preemption clause which says "No state or local government
   may impose liability for commercial activities or actions by
   commercial entities, non-profit libraries or institutions of
   higher education that are different.  And then finally later
   there's another definition section defining interactive
   computer device which specifically also includes libraries
   and institutions of higher education.

   	Now, in addition to that, the Government's 

   	JUDGE SLOVITER:  Excuse me.

   	MR. HANSEN:  Yes.

   	JUDGE SLOVITER:  It says that but where does it-- I
   just want to know for my own benefit because we finally got
   it, you know, through the computer, I think.  Because up
   until now it's been a relatively new statute.

   	Where is the prior reference in those two sections
   to institutions of higher education and library?

   	MR. HANSEN:  Well, the -- the term interactive
   computer device is defined to include interactive computer
   devices used by libraries and institutions of higher


   	MR. HANSEN:  So the prior -- the cross-reference--

   	JUDGE SLOVITER:  That refers to A.

   	MR. HANSEN:  That's -- you're correct.

   	JUDGE SLOVITER:  That would then refer to Subsection
   A where they use interactive computer things.  D?


   	JUDGE SLOVITER:  Okay.  

   	MR. HANSEN:  D, right, it refers to Subsection D,
   that's right.

   	JUDGE SLOVITER:  Go ahead.

   	MR. HANSEN:  The second and final point I'd like to
   make concerning the nature of the speech here is that the
   Government's ultimate proposal is that technology will
   develop to appoint where they think it will be possible for
   speakers to label themselves as indecent speakers or not as
   indecent speakers.

   	They think it will become possible at a time when
   the Government can compel people to issue a label before they
   speak describing their speech as indecent or not indecent.

   	Even if that is to come to pass, the notion that the
   Government can impose upon all of us, upon the millions of
   people who use the Internet in the context of the Web, in the
   context of the news groups and chat rooms, the requirement
   that before we speak we label our speech as decent or
   indecent, in our view, represents a serious constitutional
   problem, one that is sufficient to justify this Court in
   declaring this statute unconstitutional, even in the event
   the technology comes about as the Government predicts.

   	Thank you, your Honors.

   	JUDGE DALZELL:  Thank you, Mr. Hansen.  

   	MR. ENNIS:  I'd like to make three brief points,
   your Honors.  The first is, is that with respect to news
   groups, chat rooms and lists or mail exploders, everyone
   agrees, including the Government's expert, that there is no
   technology available now, there is none in the pipeline,
   there is not going to be any here in July that makes it
   possible to speak in those forums by getting a credit card,
   an adult ID number, anything like that.  And I simply refer 
   the Court to our proposed findings of fact, 862, 883, 884,
   894, and 901 where that evidence is summarized.

   	Second, with respect to tagging, I think it's
   important to recall that the Government admitted here tagging
   is not a defense today because the browsers are not set to
   read those signals today.  But even if today all the browsers
   in the world were in place and set to read those tags, it's
   still not a defense.  At most, it's substantial evidence,
   it's not a defense.  It's not a truly safe harbor.  So we're
   not going to be in any different position in July from the
   position we're in right now.

   	Third, I think it would be strange indeed for this
   court to construe this statute to make tagging a defense
   because, as Mr. Hansen pointed out, any requirement that
   speakers self-label their own speech as a condition of
   speaking would violate the doctrine against compelled speech
   which was Meese v. King, Wooley v. Maynard, the Riley case. 
   Attaching a pejorative label to your own speech is something
   the First Amendment forbids the Government to require you to

   	And I think it's also not even necessary to reach
   that difficult constitutional question because as the NTEU
   case makes clear, you should never construe a statute in a
   way that would simply create a new First Amendment problem
   which requiring speaker self-tagging would do.

   	Furthermore, there's no reason to construe this
   statute that way because there's no reason to believe
   Congress had any intent whatsoever to require speaker self-
   labeling or tagging.

   	In fact, if you look at the Communications Decency
   Act, in the very next section of the same act passed by the
   same Congress on the same day, Congress specifically rejected
   speaker labeling of indecent or sexual speech by broadcast
   speakers, the medium that is the most amenable to
   Governmental regulation, precisely because Congress had
   serious concern whether they could constitutionally require
   broadcast speakers to self-label their own speech.

   	It's incredible in that context to think this
   Congress intended speaker self-labeling in the Internet

   	Thank you very much.

   	(Discussion off the record.)

   	JUDGE SLOVITER:  All right, thank you all very much. 
   We will close the -- adjourn the hearing and you will hear
   from us.  The press seems to think it knows when we will
   decide this case, to my amazement.  It makes that -- those
   hypothetical, well, it makes that judgment without any
   communication with us and you will hear.  We know that there
   are some motions pending, but you will hear from us on all
   those matters in due course.  

   	Thank you very much.

   	I want to thank counsel very much.  I find that
   having come to the District Court level for this type of --
   counsel has been exceedingly cooperative, all counsel, and
   very helpful throughout and I do thank you all.

   	And you can show this part of the transcript to your


   	COUNSEL:  Thank you, your Honor.

   	(Court adjourned at 3:05 o'clock p.m.)


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