Craig A. Johnson
by E.W. Count
America Reporter Correspondent
New York, N.Y.
CLASH OF WILLS AND CONCEPTS AT CENTER OF SHEA V. RENO
by E.W. Count
American Reporter Correspondent
NEW YORK -- U.S. Second Circuit Judge Leonard B. Sand, who
confessed in open court to being a practicing poet as well as a Federal
justice, wondered aloud whether his verse must be subjected to screening
software in order to be published by an Internet medium at a hearing on
the constitutionality of the Communication Decency Act (CDA) Wednesday.
Another panelist at the first Southern District hearing in the
matter of Shea v. Reno, Judge Denise Cote -- mayhap a mother -- asked
whether a parent, could, under the Telecommunications Act of 1996 (which
includes the CDA) be found liable for allowing a child access to Internet
media and such indecent material as may be found there.
The judges from their lofty bench in New York City's civic center
thus brought home to participants and a sprinkling of intent listeners in
the government's spanking new, imposing mahogany and marble hall of
justice how individuals great and relatively small may be intimately
affected by the new federal statute.
Randall J. Boe, counsel for the editor-in-Chief of The American
Reporter, the newspaper you are reading, advised Judge Cote that a parent
"could well" be found liable. Shea v. Reno's first Amendment challenge
claims CDA provisions are "overbroad" and "vague."
Boe, of the Washington D.C., firm, Arent Fox Kintner Plotkin & Kahn,
pointed out that indeed, Congress in debating the communications bill had
acknowledged the exploding medium's inability to prevent today's computer
whiz kids from getting around roadblocks designed to keep them off
information byways deemed dangerous by many standards.
Although the panel was clearly attuned to the issues before it, and
eager to add to its understanding of Internet technology, Hon. Jose A.
Cabranes expressed the judges' misgivings about deciding Shea v. Reno.
Notwithstanding the expensive grandeur of the immediate judicial
surroundings, the panel's concern for judicial "economy" apparently was
aroused by a letter from the American Civil Liberties Union (ACLU). The
letter outlined progress of the broad challenge to the CDA now underway by
ACLU clients in the Eastern District of Pennsylvania.
Present in the New York courtroom was a lawyer for the plaintiffs in
the Pennsylvania proceeding, Marjorie Heins, Arts Censorship staff counsel
for the ACLU -- which obviously would prefer not to share the litigation
limelight in this high profile First Amendment matter. Heins respectfully
suggested that the New York panel and the Philadelphia panel "confer on
One's notion of the ACLU championing the little guy got turned on
its head here, as the ACLU attorney addressed the court on behalf of a
coalition of leading online services and the American Library Association,
among others, while Boe argued for plaintiff Joe Shea, an independent-
minded editor who publishes The American Reporter from a single computer
upgraded to a 386SX-25.
The government and Shea's counsel stood together, separately, in
their unwillingness to defer to the ACLU's recommendation -- which would
effectively allow AR's case to be decided by the panel in the Eastern
William J. Hoffman, government counsel in Shea, flatly declared
the Eastern District case "not relevant." Plaintiff Shea, he said to no
objection voiced, "has not aligned himself with [some] ACLU positions
[such as one that] "access to sexually explicit material is not harmful to
Boe contended that "it is unnecessary and inappropriate to include
the Pennsylvania record.... We want the chance to make our own record."
"The case in New York is going well, but there are complications,"
said one cyber rights observer in a popular Internet forum Thursday night.
"In essence, the New York case and the Philly case are competing
with one another for space on the Supreme Court docket," explained Todd
Lappin, a Wired magazine cyber rights writer, in an Internet conference
sponsored by HotWired on the cases last night.
If the New York panel decides within the next two weeks to allow
Hoffman and Boe to make their own record, the judges will engage a master
or alternatively call its own expert witness to bring the court up to
speed, technologically speaking. Meanwhile, opposing counsel in Shea
again agreed, both pointing out deficiencies -- albeit different ones --
of Internet search technology.
Early on in the Wednesday afternoon hearing, Boe argued that Net
technology is not the CDA's savior because surfing the Net is unlike tv
channel surfing. "You must know the [information] address" where you want
to go, he said, or you'll be making an endless "house-to-house search,"
Under the CDA, complained Boe, "Someone has to decide which words
are not allowed in your home," and the World Wide Web's software "robots
are inherently defective." For example, they don't screen or sanitize
email or Usenet newsgroups -- a huge potential liability.
Government counsel Hoffman, for his part, noted that a child
specifically seeking to read "Little Women" on the Web could end up at a
porn site titled, "Hot Picks - Little Women." He said a child using a
search engine to locate Santa could come up with "North Pole Chat with
Santa," where obscenities are coin of the realm.
Judge Cote listed the panel's tech interests to be addressed by a
master or expert witness, if the court calls one:
o How the Internet works, how it accesses information
o How random is access to material?
o How cybercommunication works
o What kind of information is available in what manner?
o How blocking devices work
o How codes and credit cards can be used to screen users for
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Copyright 1995 Joe Shea, The American Reporter
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