Cases by Issue - Obscenity

City of Littleton v. Z.J. Gifts D-4, L.L.C. - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

City of Littleton v. Z.J. Gifts D-4, L.L.C.

Media File:

02-1609_20040324-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of J. Andrew Nathan

Chief Justice Rehnquist: We'll hear argument first this morning in No. 02-1609, the City of Littleton v. Z.J. Gifts.

Mr. Nathan.

Mr. Nathan: Mr. Chief Justice, and may it please the Court:

This case presents the narrow issue of the judicial review appropriate for a license denial under Littleton's ordinance where clear, objective standards guide the city's quick and guaranteed decision to grant or deny a license and render that decision subject to effective review in the courts.

As FW/PBS has made clear, none of the three risks the Court has articulated to justify the extraordinary remedy of a mandated judicial deadline exist here.

Those risks are: the government will err in line-drawing between protected and unprotected speech; self-censorship stemming from a censored decision that speech is not protected; and foot-dragging when the government is the plaintiff seeking to vindicate its decision to censor.

Instead, where the decision to grant or deny a license for expressive activity is bounded by valid time, place, and manner considerations, this Court has held that certiorari review is appropriate.

That is because the alleged risk here that the city clerk will violate the ordinance when it requires a granting of a license is not a risk that flows from the language of the licensing standards at all, but rather a refusal to apply those objective standards.

In short--

Justice Ginsburg: Mr. Nathan, would you explain to me how this generally operates with adult shops?

In the... in the film context, the film can't be shown.

These were in the old days when they had censure boards.

So there was a great impetus to have quick action.

But here, I take it that the business was up and running and it was the city that said you need a license.

And my question is, do these questions... does the business start first and the city come in and say you need a license, or do... does the entrepreneur wait until... and... and apply for a license before starting up in business?

Mr. Nathan: --Typically the latter, Your Honor.

The entrepreneur would apply for a license and, assuming it is granted, would then start the business.

Justice Ginsburg: So this is an atypical case where the business was running and the city came in and said, you need a license?

Mr. Nathan: This is a case where a business started and filed litigation at the same time as it started against the city in Federal court.

Justice Souter: I suppose the city could have sought to enjoin the operation of the business until it got the license.

It didn't in this case, I take it, but they could have.

Mr. Nathan: The city... yes, Your Honor.

The city did do that.

Justice O'Connor: The Freedman case seemed to require prompt judicial determination, didn't it?

Mr. Nathan: Yes, it did, Your Honor.

Justice O'Connor: And it's your position that the subsequent case involving PBS changed that standard?

Mr. Nathan: In the licensing context, a requirement of a prompt judicial decision we believe is unnecessary and that's what FW/PBS held.

Justice O'Connor: Well, that surprises me to hear.

I didn't know that's what we had done.

Mr. Nathan: Well, the decision mentioned the availability of judicial review as the second Freedman standard.

Justice O'Connor: What... what about the proposal some of the States have made whereby a provisional license could be given pending the eventual judicial determination?

Mr. Nathan: The problem with the provisional license is twofold.

First, it would allow the secondary effects that the licensing ordinance seeks to prevent while the provisional license is granted.

And second, it would allow the business to drag its feet in court, whereas a business that needs a license has every incentive to pursue that.

Justice Kennedy: Well, if... if there's a danger of delay in litigation that... that both parties fear... and apparently you feared... isn't that all the more reason that before you have a license which restricts the publication of allegedly lawful speech, that you should have a... a system for prompt judicial determination?

Mr. Nathan: But where you have an ordinance, Your Honor, that does not deal directly with speech, has separate objective licensing standards that do not have anything to do with speech, the government does not bear the burden of going to court first.

But more importantly, the court should be able to determine if... readily from a record that's created by the administrative process as to whether or not the decision to deny the license is a subterfuge to deny speech.

And in that case, what happens is... is that a mandated judicial remedy would require courts to determine even those cases where the business is not claiming that there's a First Amendment reason for the denial.

They're just claiming that the denial is incorrect.

Justice Kennedy: Well, I... I... you could... if we're sitting here drafting a model ordinance, which is of course part of the problem that I'm presented with so far as the respondents are concerned, but if you're... if we're trying to envisage a model ordinance, just account for that contingency, saying our prompt judicial determination procedure applies only if there's a First Amendment claim.

Mr. Nathan: But I guess the question goes back to whether or not the risks justify imposing a mandated judicial deadline.

Justice Ginsburg: How serious is the burden?

I mean, there are now a few circuits that have said that prompt judicial resolution, not merely access, is required.

I think it's the Fourth, Sixth, and Ninth.

What has been the resolution there?

What have cities done?

Mr. Nathan: Well, cities have been groping for a solution to that question.

In Colorado, we would have a separation of powers issue.

It's very difficult to engraft in Littleton's ordinance a requirement that courts that it does not control rule within a set period of time.

Some of the cities have attempted to pass legislation.

Some have attempted to create their own court systems.

None of those is guaranteed to work and none of them are, we believe, mandated by the risks entailed.

Chief Justice Rehnquist: Do any of the courts which have said that prompt disposition, rather than just access... have they gone on to say that prompt appellate disposition, because presumably you can appeal from the ruling of... of a superior court or a trial court, that that also is required?

Mr. Nathan: I do not believe they have held that, Your Honor.

But I don't think that it is clear as to exactly how that is to be done.

Chief Justice Rehnquist: Because ordinarily, even if you get a prompt disposition in the trial court, you can wait, you know, a good year before you get a disposition on appeal.

Mr. Nathan: Yes, that's true, Your Honor.

Justice Souter: Has... has anyone suggested that your... I don't know the... the merits of this separation of powers problem that you raise, but has anyone suggested that the answer to that may simply be not to try to directly control the courts to come down with a decision after X days or weeks or whatnot, but simply have a kind of circuit breaker provision that if they don't, the license will be deemed to be granted?

Mr. Nathan: Well, I... I think that that's in the nature of a provisional license which would be that after--

Justice Souter: It could be provision.

It could be permanent.

If... if the... if the State doesn't want to move fast, you would get the license in the meantime, or... or perhaps get it permanently.

But that would avoid separation of powers.

Mr. Nathan: --But it would also create the secondary risk by having an unqualified applicant, since that is what we're talking about in the standards that we're--

Justice Souter: Well, but we... we don't know.

That's... that's the whole point.

We don't know whether the applicant is qualified.

That's why you're in court.

And the... the way, in effect, I... to... it seems to me to ensure your interest is simply to... to have an encouragement to a prompt disposition.

And if the machinery of the State cannot somehow pull itself together to give the prompt disposition, then I don't know what you've got to complain about.

Mr. Nathan: --But this Court has always presumed the State courts will honor their obligations to review these types of cases and determine if there are First Amendment issues.

Justice Souter: Oh, I'm sure the State courts will, but I've come from a State court and I... I know what... what caseloads are.

And unless there is an inducement to move quickly, the... the State courts, you know, may have obligations to other litigants and... and not move as fast as the... as the First Amendment would call for.

Mr. Nathan: But that's why in... in Colorado the rule 106 gives the court the ability to in its discretion, determine if accelerating the case is necessary.

And--

Justice Souter: In... in which case then, if there were this kind of circuit breaker provision, the... the courts would... would have every procedural basis for honoring it.

Mr. Nathan: --But, of course, if the city doesn't bear the burden of going to court and it's the business that goes to court, it would then have every incentive to move as slowly as possible because it would automatically get a license even if it weren't--

Justice Kennedy: I just didn't... would have every incentive to?

I just didn't hear.

Mr. Nathan: --Move slowly because it would automatically get a license if a certain period of time went by even if it weren't qualified under the objective standards of the ordinance.

Justice Souter: But it would have to have filed its appeal.

Mr. Nathan: It would have to have filed its appeal, but it would have every incentive not to ask that that--

Justice Souter: Then... then simply have your circuit breaker saying if there's going to be an appeal, file the appeal within X days.

Mr. Nathan: --And--

Justice Souter: I mean, these are simply things that States can provide by... by law, it seems to me, without any great difficulty.

Mr. Nathan: --That's true, and I guess the question is... is whether the risks entailed require that they be imposed on the cities who have these types of licensing ordinances.

And we would seek to prevent the secondary effects that this Court--

Justice Souter: Well, if... if you take the position that in fact the State should move promptly here, what is the State going to lose by, in effect, a fail-safe requirement that it must?

On your theory, it's not going to be doing anything more than it ought to do in the first place.

So... so we would... we would be providing, on your theory, for the outlier case.

So what would be the... what would be the reason for complaint here?

Mr. Nathan: --Just that when the plaintiff goes to court, the business goes to court, it would have every incentive to... to try to go as slowly as possible, whereas the incentive should be, if it wants a quick decision, for it to move to expedite, to... to brief quickly and to argue quickly and ask the court for an expedited decision, and if one is not availing, to go up and ask the appellate court, under our rule 21 of the Colorado Appellate Rules, to order the court to rule quickly.

Justice Scalia: Mr. Nathan, I gather that a... I gathered from your brief that your... your principal point, or at least a principal point in this case, is your contention that this case is different from censorship cases where the judgment is left to a... a board with... with no standards as to whether a particular movie can be shown or not.

There immediate review is necessary.

Your claim here is that the matters that are determined by the administrative organ are not matters of censorship, but rather quite discernible, physical, and practical points.

What... what specifically was the basis for turning down the... the license here?

Mr. Nathan: Well, there's never been an application for the license in this case.

Justice Scalia: I see.

Well, what... what would have been... what would have been the issues if the application had been filed?

Mr. Nathan: In point of fact, except for the... its location... it's in an improper zone and it's within 500 feet of a church and day care center... Z.J. probably would have been granted the license, Your Honor.

Justice Ginsburg: But they say they're not an adult business, and that's the preliminary characterization.

I mean, they... they don't have a license.

They didn't apply for one because they said, we don't need a license.

We're not that kind of business.

Mr. Nathan: But, Your Honor, that issue was litigated fully in the district court and the district court held that not only were they an adult business, but that their arguments to the contrary were essentially frivolous.

Now, it took some doing, in terms of discovery where we had to provide photographs, videotapes, layouts, an accountant's determination of the amount of adult materials, but the district court ruled on that issue and found that they were unquestionably an adult business and even cautioned counsel about rule 11 in their claim that they weren't.

Justice Ginsburg: This is the Federal district court.

Mr. Nathan: Yes, Your Honor.

Justice Ginsburg: Is... is there no court, municipal level court, in Colorado as there was in Baltimore?

I mean, the... the reaction of Maryland to the Freedman case was to set up a proceeding in the Baltimore City court, and it had explicit time lines.

And then it provided for an expedited appeal to the Maryland Court of Appeals.

So why... I... I thought that the FW/PBS case said, we're... we're not going to follow... the... the government has to go into court because it isn't like censorship.

But the other two apply.

So why don't you just... why isn't that the solution, the one that was adopted in Freedman for... for the proceedings in court?

Mr. Nathan: Well, there's a serious question in the issues before the Colorado Supreme Court now as to whether a municipal court can handle a 106 review or whether it has to be a district court from the State.

But again, if you eliminate the... what has been called the third Freedman requirement of requiring the government to go to court, then since it... the... the business is the captain of that litigation, there's no reason to force the government to mandate a decision within a set period of time.

Justice Scalia: Do you concede that the second Freedman requirement demands that judicial review... or that... that a judicial determination be concluded?

Mr. Nathan: I do not, Your Honor.

Justice Scalia: I thought that that's the whole issue here, whether it's enough that you can promptly begin a suit or whether, in fact, what... what Freedman requires is that a suit has to be raced through to termination in these cases.

Mr. Nathan: Yes, Your Honor.

And our position is... is that the elimination of a third requirement makes it more rational to have the second requirement be prompt access and... and effective access to the courts which--

Justice Ginsburg: But everyone who complains about administrative action, adverse administrative action, has a right to promptly open the door.

So that, if you read it to just to say access, then it essentially does nothing.

Mr. Nathan: --In this case, however, and in many others, when you have clear objective standards, a quick exit from the administrative process, a record of the reasons for the denial, then access to the court is meaningful because a court can readily determine if there's a subterfuge to suppress speech through the licensing mechanism.

Justice Kennedy: And I suppose that interpreting the second requirement that way does prevent the administrative agency from delaying matters by simply delaying the issuance of its opinion.

Mr. Nathan: Exactly, Your Honor.

Justice Stevens: May I ask this general question?

I understand the standards are different, but just in terms of the procedure, if I applied for a license to run a dry cleaning establishment, would I have a different procedural set of hurdles than this litigant does?

Mr. Nathan: The... the licensing requirements in this case involve adult businesses.

Justice Stevens: Right.

Mr. Nathan: And so I'm not sure what sort of--

Justice Stevens: I know the standards are different to qualify for it, but I'm just wondering if you're denied the... the license, are you treated any differently than if I had applied for... to get into some entirely different business?

Mr. Nathan: --I don't believe so, Your Honor.

Justice Ginsburg: There's one curious feature in this and maybe you could explain it to me.

Apparently this business was denied a sales tax license and yet they were in business.

Mr. Nathan: They didn't apply for a sales tax license until 8 months after they opened, and by that time, because they had initiated litigation in the Federal district court, we had already determined that they were clearly an adult business and therefore they were denied the sales tax license because they were in an improper location, which is the only reason--

Justice Ginsburg: Can... can a business start up and... a retail business without such a license?

Mr. Nathan: --No.

That's why they were cited in court.

I'd like to reserve, if there are no further questions of me--

Argument of Douglas R. Cole

Chief Justice Rehnquist: Very well, Mr. Nathan.

Mr. Cole, well hear from you.

Mr. Cole: Mr. Chief Justice, may it please the Court:

It is neither necessary nor appropriate to require licensing schemes like Littleton's to provide prompt judicial determination.

It's not necessary because, as this Court's cases demonstrate, the type of judicial review required in licensing schemes must be correlated to the First Amendment concerns that the ordinances present.

The First Amendment risks here are far less than the risks of freewheeling censorship that were at issue in Freedman and its progeny.

The ordinance here does not license speech.

It licenses businesses.

Thus, prompt access is sufficient.

In fact, it would be inappropriate to impose a judicial deadline requirement for at least three reasons.

First, it would impede State and local efforts to control secondary effects.

Second, it would offend notions of comity and federalism by assuming that State judges will ignore their constitutional obligations to be sensitive to the First Amendment.

And finally, it would require local officials to impose time limits on those over whom they have no control.

Excuse me.

Thus, both constitutionally and jurisprudentially, prompt access to meaningful review is all that the Constitution requires.

The Freedman decision was motivated by two concerns, neither of which is present here.

There's neither the... the problem of unbridled discretion, nor a risk of self-censorship.

Unbridled discretion occurs only in two situations where you have either the possibility of administrative delay or standardless discretion.

And as this Court has recognized in a number of cases, the latter, standardless discretion, presents unique challenges for judicial review.

It makes sense in that context to require some type of judicial deadline because essentially meaningful judicial review on an expedited basis is impossible if there's no standard to give any indication as to why the administrative decision was made.

Justice Kennedy: I... I suppose that if we're concerned, as I... as I think the courts are concerned, about protecting First Amendment rights, one thing we could do is just say that if there's any apparent delay in determination, the United States district courts under 1983 are free to... are free to intervene at once.

Mr. Cole: And... and, Your Honor, if--

Justice Kennedy: I'm not sure if that helps you or if it helps the respondent.

Mr. Cole: --Well, 1983 is, of course, always available as a vehicle for someone that's asserting that their constitutional rights have been violated.

Justice Kennedy: Well, except that I... I would think the municipalities and the States would raise questions about deferring to the State courts for determination of State law issues and so forth.

Mr. Cole: Abstention doctrines, Younger abstention, for instance, might come to play.

Here the court... or I'm sorry... the city waived any abstention argument in order to allow the 1983 case to proceed.

Potentially it could have, notwithstanding the abstention argument, but of course, there would be the issue of abstention which is one reason why prompt access to some type of State remedy is so important in... in the case if 1983 is not an effective vehicle.

Justice Scalia: Of course, I guess we'd have to have either a statute, such as the statute that requires Federal district courts to expedite criminal cases.

I'm not sure a Federal district court can both take the case and also bump it up to the top of its docket.

Can they do that, leaving... leaving behind people who have been waiting several years to be heard?

I don't know that that will work without a Federal statute.

Mr. Cole: Well, and I guess at... at core, it doesn't matter whether you go to the Federal court under 1983 or to State court.

Presumably the sensitivity of the judge to the First Amendment concerns in both cases would be the same and their willingness to move it to the front of the docket would be the same.

We look... I mean, this Court has definitely in the past shown that where State courts are not sufficiently sensitive to First Amendment concerns, for instance, in the Skokie case, the Court demonstrated that it could fashion tools to handle what it felt was undue delay in the court system.

Chief Justice Rehnquist: But we've also held that Federal courts are... should be very loathe to intervene in ongoing State proceedings.

Wait till the State proceeding is over and then you can go to Federal court.

Mr. Cole: Absolutely, and in the Skokie case, it came up through the State court system and directly into this Court rather than via a district court model.

But... but the point is as long as you have prompt access, you're going to get access to a judicial official who is going to be sensitive to First Amendment concerns and, if necessary, has all the traditional tools of equity available to provide immediate relief, TRO's, PI's.

Justice Ginsburg: What... what does prompt access mean as opposed to relaxed access?

I... I just don't understand the content of prompt access if... if access is getting into court.

That's easy.

You file a complaint.

Mr. Cole: Well, you need... under State systems, most State systems have some form of requirement that... that the court knows that the administrative process is over so it knows it doesn't have to defer to the administrative process anymore.

So by having a clear exit, as well as a... a vehicle that's either prescribed by rule or by statute so everybody knows the appropriate vehicle and there aren't any questions about the jurisdiction of the court to hear the matter, as well as a record that... that they can use to make a... a prompt review when it gets before them, we would contend that that meets what this Court was talking about with respect to the second prong in FW/PBS.

Chief Justice Rehnquist: Does the local ordinance provide a limit, time limit, for the administrative proceeding?

Mr. Cole: Absolutely, Your Honor.

Chief Justice Rehnquist: What is... what is that?

Mr. Cole: I believe, as it's currently drafted, it is up to about 40 days, but it could be even quicker than that.

I say up to.

There are certain periods of time within which the applicant can act within the next 10 days, and so if they act within the first day, then that would shorten the time frame even further.

Justice Kennedy: Do you think those administrative requirements are... are mandated under the Constitution when First Amendment issues are... are present?

Mr. Cole: A prompt administrative decision, yes, Your Honor.

I believe that... that comes from FW/PBS, as... as well as to the... I mean, FW/PBS's interpretation of Freedman in the context of content-neutral licensing schemes.

Justice Kennedy: Well, why would you go that step unless you're being... you just think you're forced to under our decision?

Why would you go that step and... but... but then moot the whole thing out by having a... an... a protracted judicial process?

What... what sense does that make?

Mr. Cole: Well, Your Honor, there's been no showing here that there would be a protracted judicial process.

The--

Justice Kennedy: No, no, but I... I asked you if... if you concede that there is a requirement of expedition at the administrative process... at... at the administrative level, it then seems to me that it also follows there has to be one at the judicial level.

Mr. Cole: --Well, Your Honor, the... the question before the Court today, though, is what does Littleton's or a town like Littleton's licensing scheme need to provide.

There may be some independent constitutional obligations on State court judges to act promptly with respect to First Amendment concerns, but the question is, does that need to appear in the text of Littleton's ordinance?

Justice Kennedy: Do you concede that there are such obligations?

Mr. Cole: I concede that... that courts have an obligation under cases like Skokie to be sensitive to the time concerns that are presented by First Amendment issues.

I don't know that there's any--

Justice O'Connor: Mr. Cole, do you know whether there are any license... city licensing schemes that say if the... in the administrative proceeding it's determined that the license should issue and it is the city that's appealing, that then it has to be expedited?

On the other hand, if in the administrative proceedings, it's determined the license should not issue, then there the burden would be on the appellant applicant for the license to go forward.

Mr. Cole: --I'm not aware of any such city ordinances.

The California statute, which was passed as a result of the Ninth Circuit decision, I believe allows either the city or the applicant to proceed to court, whatever the licensing decision is.

Either the Tennessee or the... I believe it's the California one.

But... but I'm not aware of any city ordinances that do that.

The... Z.J. Gifts relies heavily at page 18 of their brief on a quote from Southeastern that says a free society prefers to punish the few who abuse rights of speech after they break the law rather than throttle them and all others beforehand.

To me, that puts a real point on the difference between the prior restraints that were at issue in Freedman and Southeastern and cases like that and the situation here.

That assumes we need to do some sort of sorting, bad speech and good speech, and we want to know should we do the sorting beforehand or after, and the Court says, not surprisingly, let's them talk and then we'll punish the ones who utter things that are not protected by the First Amendment.

Here there's no need to engage in that kind of sorting.

Any adult business has the prospect for creating the secondary effects that this Court has recognized in Renton and Young and... so it's not a matter of sorting them.

It's a matter of if you're an adult business, you need a license and that license might include requirements like where you can locate within the city.

Justice Scalia: Well, it is a matter of sorting them to the extent you have to figure out what's an adult business.

Now, you... you say that that issue is not in this case.

Maybe we don't decide very much if that issue is not in this case.

Why isn't that--

Mr. Cole: Well, Your Honor, I--

Justice Scalia: --a sorting type issue?

You claim you're not an adult business, in which case you're not even subject to this ordinance.

Mr. Cole: --Well, but if you're not subject to this ordinance, you're not going to be seeking judicial review under this ordinance, and you'll do what... what Z.J. Gifts did here, which is bring a facial challenge under the First Amendment before you've even subjected yourself to the licensing scheme.

One would assume that the judicial review that we require to be part of the licensing scheme would be to deal with those cases that come up through the licensing scheme and to which the judicial review would then apply.

If the... if the question is it's ex ante, does it even apply to me, that will be litigated in a different forum than what we're talking about here.

Justice Souter: All of which is true unless the... the city chooses to do, as it did not do here, and that is to enjoin the operation of the business in the absence of the license.

Mr. Cole: Well, and it... if they... if they seek to enjoin the business at that point, then you're right.

They could raise the constitutional defense presumably that they would have.

And at that point then--

Chief Justice Rehnquist: Thank you, Mr. Cole.

Mr. Cole: --Thank you, Your Honor.

Argument of Michael W. Gross

Chief Justice Rehnquist: Mr. Gross, we'll hear from you.

Mr. Gross: Mr. Chief Justice, and may it please the Court:

The core policy in Freedman, recognized in this Court's decision in FW/PBS, is that a decision to issue a license to present... protect the expression must be made within a brief, specified period of time because undue delay results in the unconstitutional suppression of protected speech.

Chief Justice Rehnquist: But Freedman was actual censorship and this is not that.

Mr. Gross: That's correct, Your Honor.

This doesn't involve a single film.

This involves a determination by the licensing officer, in this case especially, of the content of an entire business.

Chief Justice Rehnquist: Well, are you saying that the... the claims of the owner here are just as urgent under the First Amendment as in Freedman?

Because certainly PBS suggested they weren't.

Mr. Gross: FW/PBS did relax the third Freedman safeguard.

There's no question about that.

However, I think in the Court's analysis of... when the Court undertook that direction, the Court indicated that the license is the key to obtaining and maintaining a business.

And that's why the... the... why there's every incentive for a business to move forward with judicial review in the--

Justice O'Connor: Has there... has there ever been any proceeding here at all to determine what the issues are?

Mr. Gross: --There's been a lot of proceedings in this case, Your Honor, as Mr. Nathan indicated.

Justice O'Connor: But... but they're all on a challenge to the overall constitutionality of the... of the city ordinance?

Mr. Gross: That's not entirely accurate, Your Honor.

There... there was a nuisance case filed in the State court, in the Arapahoe County District Court, and the city in fact got an order enjoining the operation of its business.

It was brought on the basis of a zoning violation, sales tax violation, and sexual business violation.

Justice O'Connor: Is it... is it operating now, the business?

Mr. Gross: The... the business is operating now.

That order--

Justice O'Connor: On what basis?

Mr. Gross: --Well--

Justice O'Connor: I mean, happened to... to--

Mr. Gross: --With regard to that State court case, there was an order enjoining the... the operation of the business entered in September of 2001.

The business made a motion for a stay, pending appeal.

That motion was denied on December 27th of that year.

There was a contempt hearing.

The business was moved to be held in contempt.

At the contempt hearing, the trial judge in the State court, for the first time hearing the case... he found that the business was not in contempt of court.

In fact, the Federal court determined in the light most favorable to the... to the bookstore that 33 percent of the business was allocated towards regulated adult items.

The district court and State court, once he saw what was going on, there's testimony that 18 percent of the business was devoted to adult material, and the State district court made a determination that the business was not in contempt.

In fact, the injunction order in State court was later reversed in the State court of appeals in February of last year.

And so at the current time, there is no injunction order against the business.

The business is operating.

Justice Kennedy: --It... it seems to me that it's just much simpler for us to acknowledge, for the system to acknowledge that there's a strong First Amendment interest here, so expedition is important, rather than write some model ordinance.

You can go to Federal... if... if the State isn't complying with that rule, go to the Federal court.

Mr. Gross: And... and there was a facial challenge filed at the time the business was opened back in August of 1999.

They went to Federal court first.

The State did seek its remedies as a State court nuisance action and tried to shut down the business and was unsuccessful ultimately.

Justice Kennedy: I'm just not sure why that isn't adequate if a Federal judge thinks that the... the city... that the State system is delaying matters and that speech is at risk, the Federal court could issue an injunction.

Why should we write a model ordinance up here?

Mr. Gross: Well, the Federal courts are... I think, as indicated before, there are some issues of abstention, comity, and so forth, and those issues have come up quite a bit, especially if there's pending State court proceedings.

Here the... the State did go to State court.

The... you can always go to Federal court to vindicate your First Amendment rights.

And in... that's what we... what the business chose to do in this case on the facial challenge.

I think once the case gets started, once you apply for a license and your license is denied, you really need to go through the State court process.

Justice Breyer: Well, but... what... what is the problem in the case?

I mean, I... I had thought, perhaps naively, that the reason that one opinion used the word judicial access, prompt judicial access, and the other opinion used the word, prompt judicial decision, is that there really isn't any difference between the two.

Once you have prompt judicial access, the courts have loads of devices to give you a prompt decision.

And if you feel the decision isn't prompt enough, well, you can ask the appellate court to make sure you get your quick decision.

What's the problem?

Mr. Gross: Well, I think Freedman said prompt judicial review means prompt judicial determination.

I think the courts may have discretion to fashion the remedy, but again, getting the case under the State court dockets, getting--

Justice Breyer: Once you say that, the courts have discretion to fashion the remedy, that's the end of it, isn't it?

Of course, you get into court and then it's up to the judge, and if in fact the judge, as I just said, delays unreasonably, you like any other litigant have a host of judicial remedies.

So what is it?

How do you win this case once you agree to what I just said?

Mr. Gross: --Well, the core policy behind Freedman... it was enunciated in FW/PBS... is that delay could... results in unconstitutional suppression of speech.

And in fact--

Justice Breyer: We're all against delay.

I mean, I just don't... I mean, everybody is against delay.

And my question is what is it that you want in that respect that you haven't had.

Mr. Gross: --Well, in this case there was an erroneous deprivation of constitutional rights.

There was--

Justice Breyer: You mean you have not had... you've had unreasonable delay.

Mr. Gross: --Yes, and--

Justice Breyer: Aren't... isn't your client running his bookstore?

Mr. Gross: --The... the client--

Justice Breyer: Then what's the delay?

Mr. Gross: --The client... there... there's no injunction order entered in this case.

The delay is that on its face that the... the ordinance needs to provide for prompt judicial review.

Justice Breyer: Oh, that's a different matter.

You think it isn't enough, the ordinary remedies.

You want the ordinance to say in words judicial... prompt judicial review.

That's contrary, I think, to what you just said.

Justice O'Connor: Well, I thought it does say prompt judicial review in the sense of access.

Justice Breyer: Yes.

Right.

Justice O'Connor: What doesn't it say?

Mr. Gross: It provides... rule... it provides for judicial review under rule 106 of the Colorado Rules of Civil Procedure.

That process involves judicial review of the record, 90 days for the record, briefing schedules, 30 days for each side, 15 days--

Justice O'Connor: You don't like the briefing schedule.

Is that it?

Mr. Gross: --Well, the... the period of time it takes... it's a very long time.

It... generally judicial review... it's an appellate... appeal to the district court.

It takes at least a year.

Chief Justice Rehnquist: Well, a municipal... a municipality in most States can't prescribe the procedures in a State... in a State court.

Mr. Gross: That... that is correct, Your Honor.

California... the legislature did enact a statute, as referred to by the State of Ohio that--

Justice Scalia: It's... it's not even clear that the legislature can do it in some States.

Indeed, you know, I... I think there are limits to what a legislature can tell a court.

I think it can't tell a court to pump out a decision in 10 days.

You think it... you think it can do that?

Mr. Gross: --I think it can... it can... it depends on the court... on a State--

Justice Breyer: Why would you think under the Constitution that an adult bookstore has to have something written into an ordinance which... it's entitled to a fast decision.

I agree with you about that.

But why does it have to have it written in an ordinance when a person who's put in prison arbitrarily who also should have a very speedy decision is required to rely on ordinary court processes to get that speedy decision?

Mr. Gross: --Well, under the First Amendment... and this is not a... this is not directly on Freedman, censorship of a single item.

However, decisions of administrative officials... certainly administrative officials are subject to much greater pressures to censor.

Justice O'Connor: Yes, but the administrative procedures the city provides here all have these prompt deadlines.

You... and... and your business did not apply for that.

It just opened its doors apparently.

Mr. Gross: It went to court.

It did file a Federal case.

It did open its doors.

The city has been very--

Justice O'Connor: And the business knew, when it did that, that it was omitting the city review altogether, although it had been available very promptly.

So I... it's hard to get a focus on what... how... how your client has been hurt.

Mr. Gross: --The city... well, the city indicated before the business opened its doors that it perceived it to be an adult business before they even opened their doors.

They said, we've heard you're coming to town and we think you're adult business.

And so that... and then the city did deny a sales tax license on the basis that it was an adult business.

They won't define what that means.

They won't put any... any indication what those terms actually mean.

Justice Kennedy: Well, this... this goes maybe over the same ground, but let's assume that in the... in a circuit court in... in... say, in the Tenth Circuit, it's recognized that licensing restrictions that apply and... and permit requirements that apply to First Amendment materials are most sensitive.

And the... and the courts of the circuit, both the district court and the court of appeals, are... are very faithful in... in implementing... in implementing that rule.

Why do we have to have an ordinance?

Go to the Federal court and say speech is being chilled, speech is being suppressed, there's unreasonable delay.

The court says, I agree.

Mr. Gross: I... I guess--

Justice Kennedy: End of case.

Mr. Gross: --We'd have to wait an unreasonable period of time to initiate that case.

I think 37 Photographs talks about the 60-day judicial review.

Justice Kennedy: No.

The whole... no.

The whole premise of my question... maybe you're going to tell me it's hypothetical.

The whole premise is the Federal courts are open to hear claims of unreasonable delay that... that chills the expression of speech.

Mr. Gross: The Federal courts are open to that.

I... I would agree with that.

Certainly if there are State court proceedings pending, there may be issues of abstention that we talked about before.

Justice Stevens: Mr. Gross, can I ask you sort of a... a basic question that I haven't really thought through?

Should there be a different time schedule for the person who wants to operate just an ordinary bookstore that just sells textbooks for schools and... and trade books, on the one hand, and an adult bookstore on the other hand?

Would one of them be entitled to more prompt review of his license application than the other?

Mr. Gross: I... I would... yes, Your Honor.

I think under FW/PBS, the Court indicated that there was an additional burden placed upon adult bookstores and that Freedman had to be complied with.

Justice Stevens: So you think the Constitution commands more prompt treatment of an application by an adult bookstore than by an ordinary bookstore.

Mr. Gross: I... I think it... there's... you get into the issue of... of some kind of content... correlated content based restriction.

It may be based upon non-content based factors.

Justice Ginsburg: Do you need a license to open an ordinary bookstore in Littleton?

Mr. Gross: No, you don't, not a special license.

You need a sales tax license.

Justice Scalia: Well, there are other restrictions.

You... I'm sure you can't open it in the middle of a residential neighborhood, can you?

Mr. Gross: A commercial business you can't open.

I mean--

Justice Ginsburg: But you don't--

Justice Scalia: --Anywhere?

Justice Ginsburg: You don't need a license.

Justice Scalia: There's no zoning?

Mr. Gross: --There's an adult zoning provision in--

Justice Scalia: Well, there's not just an adult zoning.

I assume there's a commercial zone.

Mr. Gross: --Commercial zoning.

That's correct.

Justice Scalia: Well, so... so they can't open it anywhere.

They have to go through a procedure.

Mr. Gross: They have... they have to go through the commercial... yes, be approved for a commercial zone and if this--

Justice Ginsburg: But what... what is the commercial other than if they... if they're going to set it up in a place where you can have businesses... in other words, there isn't the same license requirement for these two businesses.

There's a special licensing requirement for adult bookstores because of their secondary effects.

Mr. Gross: --Yes.

Justice Scalia: What do you mean a special licensing?

You mean there are special zoning requirements?

What else besides special zoning requirements?

I assume there are special zoning requirements for... I don't know... sulfur factories and... and, you know, all sorts of things.

Mr. Gross: Certainly, and slaughterhouses.

There's commercial--

Justice Scalia: For slaughterhouses, sure.

Sure, there are.

Unknown Speaker: [Laughter]

Mr. Gross: --commercial zones, and there are... and there are residential zones.

Justice Scalia: Right.

Mr. Gross: Certainly.

And--

Justice Scalia: Right, so I mean, this is just the city has decided that it doesn't... and... and we said it's perfectly reasonable for the city to say that, that... that we don't want too many of these and we want them in certain areas.

Mr. Gross: --And... and that was--

Justice Scalia: And it can say that about slaughterhouses.

Mr. Gross: --Certainly, and about adult bookstores.

And... and, in fact, there was challenge to the adult zoning in this case and the Tenth Circuit upheld the adult zoning, and these bookstores are limited to less than 1 percent of the area of the City of Littleton.

This--

Justice Ginsburg: Is this bookstore now operating in a place where it isn't permitted to be under the Littleton ordinance?

Mr. Gross: --It's... the location... yes.

It's operating its... if the city says it's an adult bookstore, it's in an improper zone.

If it's not an adult bookstore--

Justice Ginsburg: And--

Justice O'Connor: --It's... I didn't hear you.

Mr. Gross: --If... if the bookstore is determined to be an adult bookstore, it's in an improper zone.

If it is not an adult bookstore, it is in a proper zone.

It's in a location which was formally occupied by a fast food restaurant on a highly--

Justice O'Connor: And you take the position that if you just sell 18 percent of the merchandise is adult, then it doesn't qualify?

Justice Ginsburg: I don't understand.

Mr. Gross: --That... that was what the Arapahoe County District Court ruled.

We... we were trying to ascertain what the term, substantially significant, means.

The city refuses to provide any definitive determination of what that means.

So we had to go to court, and that's what the court determined in that particular case.

Justice Ginsburg: Now, what I don't understand is you... you are concerned about the... the efficacy of judicial review.

You picked your forum.

You picked the Federal court rather than the State court.

Mr. Gross: Yes.

Justice Ginsburg: You got a review of that ordinance, every piece of it, for constitutionality.

I don't understand what complaint you have now about judicial review, having had judicial review in the Federal court and having had the Federal court uphold most of this ordinance.

So you've... you've had judicial review.

How... how... how are you a proper complainant about what access you might have had in the State courts if you chose to go there?

Mr. Gross: Well, we... we brought the facial challenge in the... in the Federal court.

There is... and there is continuing injury in this case.

The... the business has been cited with 2,620 violations of the licensing ordinance.

And in the event the Court... the law is declared unconstitutional, those... those violations would go away.

Each carries a $1,000 fine.

So there's potentially $2 million in fines.

Justice Ginsburg: But you... the... the unconstitutional area left is this prompt judicial review, but you've already had judicial review.

That's why I don't understand what is your current complaint.

Mr. Gross: The current complaint is it's... we brought the facial challenge on the basis that it doesn't comply with FW/PBS and Freedman.

And there was--

Justice Scalia: You think somebody else might not get prompt judicial review and that's enough to strike down the ordinance.

Right?

That's what the facial challenge is all about.

Mr. Gross: --Well, it's... yes, Your Honor.

I mean, this--

Chief Justice Rehnquist: Your real complaint... your real complaint is we granted certiorari.

Isn't that the--

Unknown Speaker: [Laughter]

Mr. Gross: --Well, we... we would... we would be happy to live with the Tenth Circuit order, for sure.

Justice Stevens: I have to confess to another problem.

As I understand part of your argument, you're contending you're not an adult bookstore, an adult establishment, aren't you?

Mr. Gross: That's correct.

Justice Stevens: So you're contending you don't have challenge... standing to challenge the ordinance.

Mr. Gross: Well, the city says we do.

[Laughter]

But we do have... there is an injury in fact in this case because the city has initiated 2,620 license violations, up to $2 million in fines in a municipal court.

That... that's a real injury.

And, I mean, this isn't the case like or Pap's or like Waukesha.

Justice Stevens: Maybe that's because you decided to go into business without getting a license, which might have been a fairly reckless thing to do, I would think.

Mr. Gross: Well, we went to Federal court and the... the city, you know, did pursue their claims in State court.

Certainly, I mean, the... the business can't be faulted for... too much for being a business.

I mean, in the Waukesha case and in the Pap's case, those businesses were out of business.

I mean--

Justice Kennedy: Is... is what you're saying that there is a reliance interest on the part of these businesses?

They should know that there is a... an efficient licensing procedure with judicial review so they can factor into their costs of... of doing business whether or not they can afford, say, 3 months of expedited litigation and that this is a... a First Amendment interest.

Mr. Gross: --That's correct, Your Honor.

The... with regard to a... an ongoing business, as opposed to an individual work of art, getting the license is key... is key to the... to the ability to maintain a business.

And so an investor, an entrepreneur, trying to start a business, hire employees, get a location, supply inventory, needs an assurance that there will be a decision within a specific period of time by a court.

This is not your run-of-the-mill administrative decision.

This... this involves the First Amendment issue based upon content of the speech, based upon this ordinance that is focused upon one class of businesses that--

Justice Kennedy: If... if the States know that the... that the penalty they suffer for not doing that is having to submit themselves to Federal court litigation where the Federal courts really sweep abstention aside and so forth because of the urgency, I guess that's maybe the decision that States should make.

Mr. Gross: --Well, I think the States... they need to... it's our position they need to expedite the judicial review, and... and the provisional license doesn't really solve the problem.

I would note that the municipal court... the municipalities do have the ability to... to enact laws, to have review in the municipal court.

In fact, last week I just went through a process where there's a requirement that review occur within 75 days of the administrative decision.

That was in Aurora, Colorado.

And that ordinance is attached to our response for the petition for rehearing in the Tenth Circuit.

Justice Scalia: You are content with the review in municipal court?

Mr. Gross: No.

Well, it depends on how it comes out.

Justice Scalia: No, I don't think so.

Mr. Gross: But... but certainly--

[Laughter]

And we're... we may well prevail in that case, but certainly we have a right to an appeal.

In this case, we prevailed on the appeal in the court of... State court of appeals and the Tenth Circuit on this issue.

Justice Ginsburg: If the... if the municipal court was good enough in Freedman, where you had a real censorship problem, why shouldn't it be adequate, entirely adequate, for adult bookstores?

Mr. Gross: It may well be, Your Honor.

I think the... you know, in that... there may... it may be... it may well be adequate if there's an independent judicial officer as opposed to a... a licensor, you know, going back to the Printing Act of 1662, a licensor of speech of a bookseller.

And here the definition of adult bookstore is... is really dim and uncertain.

We don't know what it means.

Chief Justice Rehnquist: Yes, but... but we're not talking about censorship.

I mean, we're not talking about a licensor who says you can sell this book or you can't sell it.

Mr. Gross: We're not talking about a licensor that talks a specific book.

We--

Chief Justice Rehnquist: Is a... when you talk about a municipal court, do you mean the municipal court, say, of the City of Littleton or a municipal court created by the State of Colorado?

Mr. Gross: --This would be the City of Littleton municipal court or the City of Aurora is the one I was referring to before.

Justice Ginsburg: Would... would you explain one puzzling thing?

Mr. Nathan told us that the district court said, of course, they're an adult bookstore.

That's so clear.

On that basic characterization whether you are or are not an adult business, the Federal court, according to Mr. Nathan, said you were an adult business.

Is that over and done with now so what you're left with is you are an adult business and you have to get a license?

Mr. Gross: On that day?

I mean, that was the Federal court's decision.

The Tenth Circuit did affirm the decision, in little bit less harsh terms than the district court, but certainly the decision was affirmed.

That is the final determination in this part of the case.

The business--

Justice Ginsburg: And yet, you're still operating in a place where you can't be if you are an adult business.

Mr. Gross: --Well, in response to that court order, the business has changed its operation quite a bit.

This is not a... a theater.

This is not an arcade.

This is not a cabaret with live entertainment.

This is a store that has a certain percentage of its stock and trade in regulated adult material.

It reduced that number.

It created a separate section.

It's tried to comply with the city.

It is willing to comply even further as long as--

Justice O'Connor: But that issue is not before us and isn't open.

That's been decided, hasn't it?

Mr. Gross: --Yes, yes.

Justice O'Connor: So we can take this case and decide it on the basis this... that it is an adult bookstore we're talking about--

Mr. Gross: Yes.

Justice O'Connor: --that must get a license.

Mr. Gross: Yes.

Justice O'Connor: So we don't have to get tangled up in this other business, do we?

Mr. Gross: No, we don't.

The Court does not.

I would note that, however, the... the city says that there's no discretion in this case, that it's purely a ministerial decision.

And to the extent that there's inherent vagueness in the definition of substantial and significant, it indicates that a licensing official can, in fact, exercise judgment and exercise some discretion--

Justice O'Connor: But that issue is not here.

Mr. Gross: --That... that's... it's correct.

I'm just--

Justice O'Connor: I thought we were just... I thought we took the case to decide whether the requirement for prompt judicial review means prompt judicial decision at the end of the day or just prompt access to the review.

Mr. Gross: --And that--

Justice O'Connor: There's a split of authority on that point.

Mr. Gross: --Yes.

And that is--

Justice O'Connor: And that's what we took the case to decide.

Mr. Gross: --Yes.

Justice O'Connor: Not whether there's substantial discretion or not.

Mr. Gross: No.

No, that's... I'm just trying to counter their argument, but certainly it really doesn't matter if there's discretion of not.

It's our position that even if there's not discretion, there needs to be a prompt judicial determination.

The licensors are subject to many pressures.

They're... they're humans.

It's a human situation and as the Tenth Circuit recognized, these businesses are very unpopular.

These businesses can be subject to a... the discretion in... in the decision.

And there needs to be a prompt--

Justice Scalia: I'm not... I'm not sure whether that... that helps or hurts your case.

What... what I find really peculiar is that if, you know, some homeowner has another child, need... needs to put in a new bedroom in the home, that person has to go through the normal zoning procedures and get... you know, get... get approval from the... from the electrician licensing board and everything else and then go through judicial review.

Likewise, if a new hospital seeks to locate, they... they have to go through zoning and all the other approvals and then through normal judicial review.

And... and what you're arguing is that somehow adult bookstores are... are so significant to the... to the life of the community, because of the First Amendment, that... that we have to give them special treatment.

You know, I... I have to wait 2 years before I can put in my bedroom, but the adult bookstore goes right to the head of the line.

That seems to be very strange.

And if... if that's where we've arrived at, we... we ought to retrace our steps perhaps.

Mr. Gross: --Well, I would... those are laws of general application, and certainly an adult bookstore, if it went through the normal process, would have to go through the same process as any other bookstore or any other commercial business or... or the residential person adding an addition.

In this case they've created a special burden upon adult bookstores.

The city... if the adult bookstore opens or any bookstore opens and doesn't follow along with these... with these particular--

Chief Justice Rehnquist: But the... the only burden is as to location, is it not?

Mr. Gross: --There's additional burdens in terms of licensing fees, inspections, applications.

There's additional burdens for hours of operation, for... cabarets and arcades have additional restrictions, regulations that don't apply to this store.

Chief Justice Rehnquist: But those... those really don't raise First Amendment concerns, do they, the fact that you might be limited in your hours, you couldn't go past 2:00 p.m.... 2:00 a.m.?

Mr. Gross: Arguably they... they raise First Amendment concerns in terms of time, place, and manner arguments, and I think there may... there's a case out of the Ninth Circuit.

It may be before this Court on a cert petition with regard to an hours operation.

But they arguably raise that there are additional burdens.

Just like in FW/PBS, there was an additional burden placed upon these stores on... by virtue of the content of the material that is sold and distributed from the bookstore.

Now, there's been many proceedings in State court in this case and that's... that's what we've talked about.

The court... in fact, there was an injunction issued and the State has the power to enforce laws of health, safety, and welfare against the bookstore.

Justice Ginsburg: How about the sales tax?

You're still operating without a sales tax license, but you're selling things.

Mr. Gross: We... we have worked out an agreement with the city where they do pay the sales tax.

They did not grant the license, but we have managed to resolve that issue.

The store has been collecting sales tax and has been paying the sales tax.

But the city... and at the current time, the city has not moved to follow up on their... their nuisance case in State court to enjoin for not having a sales tax license.

Of course, that... that is based upon the... whether the definition of a store is adult or not adult.

But the city retains the power to... to enforce the law through nuisance cases, just like any other case, in time... with regard to health, safety, and welfare of businesses.

Justice Ginsburg: Not enforce the licensing law.

Enforce the secondary... go after the secondary effects nuisance laws.

Mr. Gross: They could enforce those too.

The license... the zoning law would be a secondary effects law, and there... and at this point there is no injunction in State court.

The city is not proceeding on that case at this point, in which there's an injunction issued based upon the State court order... excuse me... the Federal court order.

That injunction was reversed on appeal in the State court.

There's been litigation on all different fronts in this case, in State court, district court, municipal court, as well as the Federal court.

Of course, we're here on the Federal case.

Justice Ginsburg: It sounds like you've got a lot of access.

Unknown Speaker: [Laughter]

Mr. Gross: We... it's... you can file a lawsuit.

I mean, there's... certainly you can... you have a right to file a lawsuit everywhere you can, and we've... we've... there has been lawsuits filed by both the city.

And the city had access on the... on the injunction case.

There was a stay denied, in fact, after... after the injunction was issued.

I mean, this business has been fighting to stay open.

It's been fighting and has stayed... in fact, stayed open unlike the case in Waukesha and Pap's, you know.

I mean, it's clear municipalities have taken every opportunity to try to regulate these businesses, try to put in every obstruction possible with regard to getting these businesses to... to be closed down.

Now, the issue... the answer to the question before this Court is that the essential constitutional requirement... and that was identified in... in the FW/PBS case as an essential requirement... is that prompt judicial determine does actually mean prompt judicial... does mean prompt judicial determination without an actual--

Justice O'Connor: It didn't say it in... it said prompt judicial review, whatever that meant.

Mr. Gross: --That's correct, based upon Freedman.

And if... if we take it back to Freedman, you read Freedman and Freedman does... did provide a right of access, a right of appeal and talked about judicial review interchangeably with prompt judicial determination, disposition, and so forth.

Now, without an actual judicial disposition, the administrative officials will have the power to shut down an entire business, not simply a single work of art, but it will be an entire business.

If there's an error... if there's an error with regard to... to what is... what the licensing official says, that's why prompt judicial review is so important in this case.

The erroneous deprivation of the speech rights will... will cause irreparable injury, and that's the core policy behind the Freedman case.

Now, in the absence of prompt judicial review, the... the status quote will be silenced.

In this case, the bookstore went to court and get... got the access, but... and the trial court will be understandably reluctant to alter the status quo of silence.

And that is essentially the default position of any trial court.

So without an explicit statement from this court with regard to the second prong of Freedman, it's not... I think it's difficult to assume that a State court with its heavy docket will actually provide a prompt decision.

Justice Ginsburg: Is there any experience in that regard?

This ordinance has been on the books for a time.

Have the State courts been dragging their heels?

Mr. Gross: Well, yes, this law was enacted in 1993.

It's been amended many times.

In this case, the State nuisance action was filed in January of 2000, and the district court issued its order in September of 2001, and that order was reversed in February of 2003.

That's the normal course of... of events in the State court litigation.

The city did not move for a preliminary injunction.

They did move for contempt.

It took a few months to get the contempt heard, and once the contempt was heard, it came out in favor of the bookstore.

So that's... that's the experience in this case.

This is the only adult business that's ever existed in the City of Littleton.

There's never been one before.

There were apparently a couple of massage parlors about 10 years ago.

And the city has put--

Rebuttal of J. Andrew Nathan

Chief Justice Rehnquist: Thank you, Mr. Gross.

Mr. Nathan, you have 2 minutes remaining.

Mr. Nathan: Unless there are any questions, I have... I feel no need for rebuttal.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Nathan.

The case is submitted.

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Ashcroft v. American Civil Liberties Union - Oral Argument

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Ashcroft v. American Civil Liberties Union

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03-218_20040302-argument.mp3

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

JOHN D. ASHCROFT, ATTORNEY GENERAL, Petitioner v. AMERICAN CIVIL LIBERTIES UNION, ET AL.

No. 03-218

March 2, 2004

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:12 a.m.

APPEARANCES: GEN. THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

ANN E. BEESON, ESQ., New York, New York; on behalf of the Respondents.

PROCEEDINGS

(11:12 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next this morning in No. 03-218, John D. Ashcroft v. The American Civil Liberties Union.

General Olson.

ORAL ARGUMENT OF GEN. THEODORE B. OLSON

ON BEHALF OF THE PETITIONER

MR. OLSON: Mr. Chief Justice, and may it please the Court:

The Child Online Protection Act addresses a problem that all three branches of our national Government have repeatedly and consistently described as compelling, the pervasive and essentially unavoidable commercial Internet pornography that inflicts substantial physical and psychological damage on our children.

COPA was carefully drafted by Congress after hearings, debate, reports, and findings according to explicit guidance from this Court as to how constitutionally to address and resolve and deal with this -- this menace. The compelling need is overwhelming and is growing. Internet pornography is widely accessible, as easily available to children as a use of a television remote. This Court has noted, as Congress has, that immense psychological and immeasurable physiological harm is done. The --

QUESTION: Mr. Olson, part of the problem is that the pornography laws that would apply to adult viewers don't seem to be enforced very well, the obscenity laws. There are very few prosecutions, and yet there's all kinds of stuff out there. What's -- what's going on?

MR. OLSON: Well --

QUESTION: I mean, if they were enforced, a lot of the problem would be assisted.

MR. OLSON: Well, it -- in the first place, Justice O'Connor, while there may have been some lapse in -- diminution in obscenity prosecutions a number of years ago, the information that I'm given, and it's not in the record, is that 21 indictments have been brought in the last 2 years, 17 have involved Internet. But the problem with respect to the children is the material that is so widely available on the Internet that doesn't reach the definition of -- that is not as bad as obscenity. It is a wide amount of information.

The legislative history described 28,000 pornographic sites in a -- this is also outside the record, but if an individual goes to their Internet and -- and uses an Internet search engine and -- and types in the word, free porn, I did this this weekend, the -- your -- your computer will say that there are 6,230,000 sites available. Now that's available now --

QUESTION: Well, how many sites are there available altogether on the Internet?

MR. OLSON: Well, there are -- there are a great deal more than that, Mr. Chief Justice, and I don't know the exact number, but I believe the record, with respect to the Child Online, COPA, uses -- describes those numbers, but it is increasing enormously every single day, but the --

QUESTION: Yes, even -- even the 28,000 was at the time this bill was enacted.

MR. OLSON: That's right.

QUESTION: So I'm -- so I assume --

MR. OLSON: And so the --

QUESTION: -- it's much greater now.

MR. OLSON: And every evidence that's available to us, and I don't think this is disputed by respondents, is that the number of Internet sites is growing up exponentially.

QUESTION: Those figures include the obscenity violations too, I assume? You're -- you're not just talking about sites that are affected by the Child Protection Act?

MR. OLSON: Well, I'm talking about sites that -- that would be available to you --

QUESTION: Other things too, right.

MR. OLSON: -- to you or me --

QUESTION: Right.

MR. OLSON: -- or to a 12-year-old --

QUESTION: Right.

MR. OLSON: -- by typing in the word --

QUESTION: Exactly.

MR. OLSON: -- free porn --

QUESTION: Exactly.

MR. OLSON: -- where there would be no screen --

QUESTION: Yeah.

MR. OLSON: -- preventing the child from getting to that information.

QUESTION: Yeah, and my first inquiry was -- was such a vast array of sites. There are so few prosecutions. It's just amazing.

MR. OLSON: Well, as I said, the number of prosecutions are increasing. What -- what the -- what the, and United States Attorney manual asks United States Attorneys to focus on obscenity where there's evidence of organized crime --

QUESTION: Now, you said free porn, not free obscenity.

MR. OLSON: That's correct.

QUESTION: Presumably they still can't advertise free obscenity. We -- we've drawn a line.

MR. OLSON: That's correct, and I --

QUESTION: Then I don't really understand, but there's a line there somewhere between obscenity and pornography, right?

MR. OLSON: Well, there's a line there that this Court --

QUESTION: Pornography is okay?

MR. OLSON: Well, this -- what we're talking about today is something that would be described as -- and I'm using the term pornography as a shorthand version to describe what was described in the statute as harmful to children. That's a -- statute itself refers to obscenity and material which is harmful to children. It then goes on to describe the category of material that is harmful to children using the language that was approved by this Court in the Miller case, as modified by the Ginsberg v. New York case with respect to material which is harmful to children, which is broader than the definition of obscenity. The --

QUESTION: You're -- you're not suggesting that the free porn that you call up would not include any obscene material?

MR. OLSON: I did -- I didn't have time to go all the way through all those sites.

(Laughter.)

MR. OLSON: And -- and -- and it's not a pleasant --

QUESTION: I'd imagine you found some that it was obscene.

MR. OLSON: And it's -- I didn't. I -- the material that I saw and I think that the Court would see is that the people that are putting in -- these are -- this is material in front of, and the legislative history describes this, the material which is obscene is usually kept behind so-called blinders, which do -- which is a very good point here, because the very mechanism that the statute requires is already in existence with respect to commercial pornography sites.

Justice Stevens, what the -- what the -- what the purveyors of this material do is put in front of the screen provocative material that we submit would meet the definition of harmful to children and make that available to everybody to entice people to go the next step to use their credit card or their age identification mechanism to go the next step.

QUESTION: General Olson, you said something that I -- I would question. You -- you said it's just like the blinder racks, but it isn't, because I don't have to give my ID and I don't have to be concerned that someone will know that this person with this address and this credit card wants to look at this material. You can -- you can -- the -- the -- the idea of the blinder rack is to protect the child, but at the same time, the one who wants to see it doesn't have to disclose his identity.

MR. OLSON: Well, you're disclosing your identity, Justice Ginsburg, because you're standing there in public examining those --

QUESTION: How many people are going to be in that adult store, bookstore with you, as opposed to giving your credit card number?

MR. OLSON: What you're -- what you're -- what you're disclosing your identity in person, I -- we would, the Government would argue that that is more invasive, but that nonetheless that there's some -- this is a counterpart to those blinder racks. In many of the convenience stores or adult bookstores or stores that you may go into where those blinder racks are, there are cameras recording the -- the -- for protection of the shops, for other reasons, recording the presence of the person. We submit that in the privacy of one's home, use -- utilizing this information with the provision in the statute --

QUESTION: But the whole world can know about it if I've given my credit card number.

MR. OLSON: It -- it is a -- it is a crime under COPA for the persons providing that information pursuant to adult identification provisions, it's section, subsection d of COPA that makes it a crime to reveal that information. So there is protection built into the statute that protects the person's anonymity with respect to using that material, which is not protected. When a --

QUESTION: Then why is there such resistance to giving the ID and the credit card? People resist giving it, their credit cards, and I think the two reports said that that was the case, the reports on COPA.

MR. OLSON: Well, some -- some people may. Congress made a -- some people -- there -- the numbers are not quantified at all, but there is privacy protection. Giving your identity is necessary going into a nightclub, going into an adult movie, or going into a bookstore and using this material. Some people may say, I don't want to, that's a price I don't want to pay, but it's not quantified in --

QUESTION: You don't have to give your credit card to go into the nightclub or the movie.

MR. OLSON: Well, you probably -- in some cases you don't, in some cases maybe you do. I don't know if there's a charge --

QUESTION: There -- there may be resistance made there not on the part of people to stand in front of blinder racks or to go into those portions of bookstores that are excluded, that exclude children because of the presence of pornography. There may be people who won't go into that section because they don't want to be seen there or don't want to be seen standing in front of the blinder rack, although they'd be happy to look at pornography if it was mingled in with everything else.

MR. OLSON: That's correct, Justice Scalia, and Congress acknowledged that. There's no dispute by the Government --

QUESTION: Did -- I thought that at least we have some cases that -- that recognize that there is -- someone doesn't have to come forward and say, I want this material. That was the Lamont case where the person wanted to get whatever was being sent and didn't want to say, oh yes, I want to get that material. And Denver -- didn't Denver Area have the similar thing that a customer doesn't have to say, I don't take that stuff off my screen --

MR. OLSON: In the Denver Area case, the person had to make an application to unblock the material, that that material -- there's a big distinction in the Denver Area case because there wasn't a requirement of anonymity and a protection of privacy in the statute. But I guess the bottom line, Justice Ginsburg, is that, yes, we have to acknowledge that there is some burden that is imposed when you're required to identify yourself into the purveyor of this material, but that -- but you get to, you have the opportunity to do that in the privacy of your own home.

By statute, a criminal statute protects the privacy of your doing that, and the -- and the balance that Congress struck, which is what this Court dealt with when it dealt with this statute two -- on two previous occasions, the Court did acknowledge that there's a compelling governmental interest here, and that significant harm is being done on a daily basis.

The magnitude -- we point this out on page 20 of our brief -- that 11 million children visit these porn sites every week, and that between the ages of 15 and 17, 70 percent of the children, according to the statistics that we cite, visited porn site inadvertently. It is very difficult to avoid.

As we describe in our brief, the use of innocuous names, I'd mentioned last time that I was here and it hasn't changed, Whitehouse.com is a porn site. Many of these things that the evidence suggest children visit and visit accidentally or they're shown to by their friends, and then it's very difficult to get off --

QUESTION: Mr. Olson, the -- the court of appeals addressed certain principal flaws that it saw in the statute, and I wish you -- you could address those. First, whether there material taken as a whole includes the whole Web site or -- or the article and so forth, and you, I think, took a different position in the Third Circuit than you took here. And -- and the second is this question of the definition of the commercial use. Could you -- could you address those?

MR. OLSON: Yes. We -- we submit, and Congress was basing its definitions on the decisions of this Court with respect to taken as a whole, as this Court put it in the, I think it's the Kois case, K-o-i-s case, from Wisconsin, and that comes from -- that comes from the Roth decision of this Court, the material to -- for -- for purposes of the performance of this statute must be taken not only in its content, but in its context.

Now, in many cases it won't be necessary to do that, but something that might appear to be harmful in one context, if it's examined as a whole and it turns out to be a part of an art exhibit or a anatomy book or a sex education program, that would -- would have redeeming value. It's this Court's decision that it's the protection of the communicator that the material be looked at as a whole. Congress carefully built that into the statute, and your second point, Justice Kennedy, is commercial purveyors of this --

QUESTION: Well, just -- but -- but before we leave the -- the whole, what is -- your position changed between the Third Circuit and here as to what we should look like, should we look at the whole -- are you saying now we should look at the whole Web site?

MR. OLSON: You may look at the whole Web site and -- and -- and it may be appropriate to look at the whole Web site, it may not be necessary. It may be in the defendant's interest. We're not suggesting that the whole Web site should not be looked at --

QUESTION: But I mean, how -- how is the purveyor or the -- the broadcaster supposed to know?

MR. OLSON: The broadcast -- with respect to the --

QUESTION: I mean, if we can't define what --

MR. OLSON: Well --

QUESTION: -- what the whole means --

MR. OLSON: Well, this Court -- what -- this Court has defined that. It is -- requires looking at the material in the context it's which -- it's presented. In addition, in --

QUESTION: But it's presented on a screen.

MR. OLSON: It's presented on a screen --

QUESTION: One -- one screen at a time.

MR. OLSON: Certainly, Justice Kennedy, but one page in a book is presented at a time, one book in a library, one magazine in a bookstore.

QUESTION: Yeah, but as we all know, this -- this is -- a book, we know about book, but the Web site is different, and that's where we're struggling.

MR. OLSON: Well, that's right, and we're saying that the entire Web site may be looked at as a whole to see the context in which the material is presented. These are protections that the Court think are available and should be concluded within the statute to protect the communicator. So if the communicator is accused of putting the material out there that otherwise might fit these definitions, and the person doing the communication said, you have to look at the whole Web site, this was in an art gallery and so forth and those pictures were a part of that exhibit, that's a -- that's -- the reason why Congress put that provision in there is that this Court repeatedly said it was necessary to protect First Amendment rights, and in Ginzburg, U.S. v. Ginzburg, the Court said the context might be considered in terms of how the manner is being purveyed, is there pandering going on, is it being put out, is --

QUESTION: But that's not obvious in the text of the statute, because it says, it says any image, any article, any image. Then it could be any image taken as a whole.

MR. OLSON: But --

QUESTION: The question that -- that I have is, you -- you have clarified what the statute means in this respect, you've also said that harmful to minors, the minor in view is the normal 16-year-old, but the statute doesn't say that, and since we're dealing with a content restriction, is it good enough for you to give a narrowing construction of words that are susceptible to a broader meaning?

MR. OLSON: The -- I have submit that the -- what the -- with the issue of as a whole as a part of the statute, taken in the context which it is given, it -- it -- the -- this is -- this is part 6 of the definition, which is on page 189a of the appendix to the cert petition -- that the -- the context of that is quite clear that the material is --

QUESTION: Well, three -- two -- yeah. No, it was three, wasn't it, judges on the Court of Appeals for the Third Circuit missed it?

MR. OLSON: That's why we're here. But the -- the fact -- and I -- and I submit this. In the first place, this Court has repeatedly said, and it said last year in -- in connection with the McCain-Feingold case, that if there's a reasonable construction or a narrowing construction to which the statute is reason -- readily susceptible, the Court will adopt it in order to avoid the constitutional question, but I don't even think that's necessary in this context.

The contact of -- context of as a whole comes to this Court from the -- comes to Congress through a series of definitions and actual cases by this Court, so -- and the legislative history is manifestly clear that what Congress was trying to do in this pace -- case -- is to adopt these -- this Court's definitions of those things, and if I can --

QUESTION: Why did you --

MR. OLSON: Those were book cases.

QUESTION: -- pick 16-year-olds instead of 17-year-olds if you want to use the old -- the oldest minors? Where -- how -- how did you come up with 16-year-olds?

MR. OLSON: Because this Court --

QUESTION: And I mean, you know, maybe you -- you won the battle by losing the war.

MR. OLSON: Well --

QUESTION: You -- you're going to allow to come in without any restriction under this statute for a 5-year-old anything that wouldn't be -- wouldn't be bad for a 16-year-old.

MR. OLSON: Well, there's two --

QUESTION: Is that a great victory?

MR. OLSON: There's two answers to that, Justice Scalia. As this Court has repeatedly said, the Constitution does not require impossible definitions. What is -- what puts a person reasonably on notice is an appropriate way to go, and what -- the -- the reason why it was 16 rather than 17, of course, is because this Court criticized the previous statute because it drew the line at a different age.

It would be impossible, I submit, for Congress to select a different age for every different piece of material. What Congress was trying to get at was the worst problem, the material that even with respect to 16-year-olds meets the standards set out in the statute. That at least --

QUESTION: How do we know that? I -- I doubt that very much. I -- I think Congress probably wanted a good deal of stuff that might be okay for 16-year-olds not to -- not -- not to be shown --

MR. OLSON: No, as a matter of fact --

QUESTION: -- to really young children.

MR. OLSON: As a matter of fact, Congress was very clear that what it was adopting is what this Court had previously considered in the American Booksellers case and those blinder racks and the -- and the definition that came out of the American Booksellers case and the subsequent Fourth Circuit definition of that term in that case, of which this Court subsequently denied cert. Those bookseller blinder rack cases are exactly cited in the legislative history.

This is a remarkable instance of where Congress went through all of the things that the Court identified as problems with the previous statute, grappled with each of these definitions, adopted Court-approved definitions, standards, and limitations with respect to what this Court has agreed is a compelling problem.

If I can return to Justice Kennedy's concern about the issue of -- take -- the commercial pornographers, the statute is very clear that it refers to people that are in the business of profiting from this material, and then the Court -- the statute goes on to say what is the business of being engaged in this and says that someone that takes time, effort, or labor in the regular course of a business of -- of profiting from the transmission of this material.

So the legislative history, the previous iteration of the problem in this Court makes it clear that what Congress was concerned about and was -- was not trying to capture with this statute the person that occasionally transmitted a -- a photograph or an image, but someone who is in the business of doing this on a regular basis for profit.

QUESTION: Well, but the -- the doing -- the this is having the whole Web site, and -- and I, you know, I -- I concede it'd be a very difficult task if we told the Congress you come -- you come up with some definition of the commercial pornographer. On the other hand, it seems to me that this is very -- very sweeping. We -- even leaving aside the question of non-profit associations and so forth, people that have these Web sites will tell you that 100 percent of what they do is for profit.

MR. OLSON: Well, the answer to that, Justice Kennedy, is the -- the fact that this is not any -- that that definition, what the Congress adopted at the suggestion of this Court, was the same definition that this Court had approved in prior contexts with respect to obscenity, 18 U.S.C. 1466, and that definition, commercial use of obscenity, is something that prosecutors and courts have been dealt -- been dealing with for a couple of -- for over, well over a generation, for several decades. So --

QUESTION: Mr. Olson, may I ask you a question about the -- on the -- the meaning of this very provision? Supposing a beer company or a cigarette company used for advertising purposes regularly used material that would fit the definition. Would they be violating the statute?

MR. OLSON: Yes, I believe they would, Justice Stevens, that if the idea is to sell -- to use the material that fits the definition, I keep saying the word pornography because I want to use the shorthand, and that is to make commercial use of it by making money out of it, whether they sell --

QUESTION: Well, they're making money out of the sale of -- of the product, which itself is not pornographic.

MR. OLSON: That's --

QUESTION: But -- but if it's regular advertising, you think that would -- that would meet it?

MR. OLSON: Yes, I -- Congress would not have wanted to create that massive loophole, because the people that are -- this is a multi-billion dollar business, the people that are doing it would readily adapt to that kind of a loophole. The other one that was suggested by the respondents is that -- and the, and by the Third Circuit -- is that somehow Congress should have required that this would be the primary business that the person was engaged in. Again, that would have been a massive loophole subject to constant litigation over what was the primary business and whether a person's surrounded the harmful material with an acre or two of unharmful material.

What Congress was getting at is that people that are in the business, knowing and knowing the character of the material, two other terms that are in the statute, that are making money distributing this material and who won't take the steps necessary to protect minors from them.

With respect to the argument that the respondents make and the court of appeals focused on that blocking at the home might somehow be a problem, Congress carefully considered that, decided it would not be an acceptable solution, except that it did at the same time enact -- that it enacted COPA, required that the Internet service providers make that type of information available to people in their homes so that that could be in addition to what COPA requires.

The fact is that blocking material in the home is both underinclusive and overinclusive. It requires the consumer to go out and buy a product and spend money to adapt it to technological improvements that are happening all the times, and it's readily avoidable. I did the same, this again is outside the record, but I did this, anyone can do this, the same experiment over the weekend. I went to Google and I typed in disable filter and you push the button and you will get a screen full of programs that will tell you step by step how to dismantle the computer so your parents won't know about it. It is that easy, and you can put it back on.

These things are readily avoidable. So the burden that Congress was -- was -- the burden that Congress imposed at the suggestion of this Court is to put the burden on the person or persons making money on a regular basis from this product to take the minimal steps necessary to prevent the damage that's done every day by minors by allowing people to use mechanisms that are already in place. This Court mentioned it and Congress mentioned it, this adult check mechanism, that's another thing that -- that anyone can check out. Type in adult -- adult ID, and then press the button and you will find, I think there were 25 sites that mention in the congressional history which will provide an adult identification at a relatively nominal cost, I think it was 19.95 for a several-month period or something like that, and the availability is such that the steps that can be followed take a matter of less than a couple of minutes.

So in the privacy of the home, the adult who wants material protected by the Constitution, in order to avoid damage to children in the privacy of the home with statutory protection as to anonymity, the -- the problem can -- it -- it cannot be totally solved, but this is an important major step and this is an example of Congress following the directions of this Court as to how constitutionally to do it.

Mr. Chief Justice, I'd like to reserve the balance of my time.

QUESTION: Very well, General Olson.

Ms. Beeson, we'll hear from you.

ORAL ARGUMENT OF ANN E. BEESON

ON BEHALF OF THE RESPONDENTS

MS. BEESON: Mr. Chief Justice, and may it please the Court:

COPA violates the First Amendment for two independent reasons. First, it is a criminal statute that suppresses a wide range of protected speech between adults on the Web, and second, the Government has a range of more effective, less restrictive tools available to protect minors. The Government's attempt to narrow the range of speech that is affected by this statute defy the law's plain language, the record, and plain common sense.

Even under the Government's interpretation, COPA criminalizes speech that under any definition adults have the right to access. It criminalizes a depiction or even a description of nudity or even a description or depiction of the female breast. It does not just cover sexual conduct.

QUESTION: Now, I thought what it said is it picks up the definition that this Court has used for obscenity. I thought that definition was primarily an appeal to the prurient interest and it cannot have any -- it has to lack, taken as a whole, serious literary, artistic, political, or scientific value, and it adds the word, for minors. For a 16- or 17-year-old, I'm not sure there'd be much difference.

MS. BEESON: I --

QUESTION: And -- and so, I looked through all your stuff, or not all of it, but some of it, and I'd like you to point out for me, what is the material there that has that serious scientific value, which you have quite a lot of --

MS. BEESON: Yes.

QUESTION: -- but that the statute would forbid?

MS. BEESON: Yes. Two points, Your Honor. First, the obscenity statute actually covers only sexual conduct. It does not cover mere depictions of -- of nudity and it does not cover just an image of the female breast, so I think that that's an important difference.

QUESTION: It has to be an image or whatever image they are that appeal to the prurient interest. Now, that to me is material that does not communicate.

MS. BEESON: Yes.

QUESTION: It is material that is looking for a kind of emotional response, period. No communication and trying to elicit a certain emotion response, all right? And it lacks serious artistic or cultural or other value, all right? Now, what is the material that you point to, because most of yours I think didn't fit that definition. In fact, I couldn't find one that did fit it.

MS. BEESON: Your Honor --

QUESTION: So I want you to tell me which is the one that fits it.

MS. BEESON: Yes, and, Your Honor, the question ultimately is what a speaker on the Web who communicates material like this will do, what they think is covered by the law, whether they will self-censor everything they think --

QUESTION: Oh, I would imagine it's what we say is covered by the law.

MS. BEESON: Your Honor, I don't think so, under this Court's precedents. In other words, if the -- if the record shows, and if the law covers, material that clearly has value for adults but lacks value for minors, there has to be some distinction there or otherwise this turns into the obscenity statute. There is no difference. In other words, there is material that has --

QUESTION: You're going a little fast. Would you slow down, Ms. Beeson? I didn't get your last --

MS. BEESON: Sure.

QUESTION: -- clause.

MS. BEESON: Sure, sure, Your Honor, of course. The point is that the serious value for minors clause does not protect as much material as the serious value for adults clause in the obscenity statute. That by definition must be true, and in fact, as a society, just even using common sense --

QUESTION: Did you get my question? I wanted you, I was serious in my question.

MS. BEESON: Yes.

QUESTION: I want to know, I would like some citations. You don't have to --

MS. BEESON: Absolutely.

QUESTION: -- hold it up.

MS. BEESON: Yes, Your Honor.

QUESTION: But I -- I want to know what you think, in other words, are your prime examples, because I'm tempted to look at them, and if I thought that this statute didn't cover it, why not say so? Why not say all these things that the ACLU is worried about, given the Government's effort, are outside the statute? Would that take care of your problem? But tell me which they are.

MS. BEESON: Yes, let me do that. First, there are numerous discussions in the -- in the record of lesbian and gay sexual pleasure and the pleasure of sex outdoors. This is not sex education materials. These are materials intended for adults which explicitly discuss sexual pleasure.

Let me give a few citations: PlanetOut, in the joint appendix, 658 to 69; BlackStripe, the joint appendix, 753 to 57; and the Susie Bright column. She is a sex therapist, she is -- she talks about sexual pleasure. She is not talking about educational material. The purpose of her columns are to invite adults to discuss and to read about sexual pleasure if they want --

QUESTION: Exactly, and I don't think that that's prurient. I think a discussion about sex is a totally different thing from a -- a discussion that is itself supposed to be part of a sexual response, all right? They're night and day different.

MS. BEESON: Your --

QUESTION: Now -- now you tell me why that isn't so.

MS. BEESON: Your Honor, let me put this another way. This statute covers written text. All of the exhibits that have been put in by the Government are of images. I don't know what else could be covered that is written text that, you know, other than our client's material, in other words, what is left. That is what they are. They are -- they are prurient discussions, they are intended for adults, they have value for adults, but they lack value for minors. That is the concern. It's a very big concern. There are a lot of people on the Web that communicate that.

And as a society, again, there's a lot of material in this, we have defined a wide range of material as having value for adults and lacking value for even older minors. A 16-year-old cannot get into an R-rated movie. If you're a speaker on the Web and you communicate material that's like Bertolucci films, for example, or Sex and the City, you are going to be very, very worried. The Government has made your speech a crime and you have only three options under the statute. All of those options violate the First Amendment.

The first option is that you can take a risk and leave your speech up there, Justice Breyer, as you're saying, you know, leave it up there. You're Susie Bright and you think that your -- your speech is not covered. What happens? You can go to jail, not because you made that column deliberately available to a minor, but because you merely displayed the column to the general public. That is a pure violation of this Court's rule in Butler v. Michigan that you cannot make it a crime to display material to adults in the name of protecting children.

The second option. You're worried, you don't want to go to jail, you self-censor. Everything that you have self-censored, adults had the right to access. It violates the First Amendment for the Government to do this through the statute.

The third option is that you can set up costly screens, which the record shows drive away your users. The district court and the court of appeals also specifically found that because of the risk of criminal penalties, it's quite likely that you never get to the defenses because the vast majority of rational speakers, when faced with this choice, are going to self-censor, and that is speech that adults had the right to get.

This Court, for that reason --

QUESTION: You're talking about self-censoring. You're meaning an interpretation of the statute that is not warranted by the -- the proper interpretation, I take it?

MS. BEESON: No, I'm not. I -- no, I'm not, Your Honor. I think this is very different than the -- than that problem, the self-censorship problem with the obscenity statute, and here's why. Under the obscenity statute, if you self-censor material that is actually obscene, there's no First Amendment problem.

QUESTION: That's the whole point of the thing.

MS. BEESON: Exactly. There's no First Amendment problem. That speech is illegal. If you self-censor speech under COPA that we can all agree is harmful to minors, whatever that is, it's harmful to minors, you have self-censored material that adults have the right to access. That's the fundamental difference, and that is why this self-censorship is problem with this statute is so much broader than it -- than it could ever be in the obscenity statute.

Now, you also have --

QUESTION: If -- if you run that self-censor, I mean, you -- you could not have any laws protect. I -- I suppose the laws that require certain categories of materials to be put in these, what do we call, the blinder, blinder racks, I -- I suppose that -- that's invalid on the same basis because those magazines that want to appear in the general readership rack will self-censor them -- themselves so that they won't be put in there, right? So all of those, and I think every state has laws like that, they're all invalid because of self-censorship?

MS. BEESON: Your Honor, we think that -- first of all, this Court has never upheld an -- a harmful to minors display statute, and in fact --

QUESTION: I understand we haven't, but what -- what's your view? The argument you're making suggests that they're all bad.

MS. BEESON: We think that that is one of the three First Amendment burdens that these kinds of statutes impose. The first one is the self-censorship problem. The second one --

QUESTION: All right. But that alone is not enough, you think?

MS. BEESON: We think that it would be enough --

QUESTION: Okay.

MS. BEESON: -- but the point is under COPA --

QUESTION: Then all the blinder racks are bad?

MS. BEESON: And under -- under this law -- under this law, Your -- Your Honor, there are two additional burdens which are much greater than the online blinder rack statutes, and in fact, it's quite notable that even though some states, it's about half of the states that have display statutes as opposed to statutes like Ginsberg that make it a crime to simply sell directly to a child material that's harmful to minors, those same states that have passed and in some cases upheld offline display statutes have now struck down online display statutes because they have reached the same conclusion that the district court and the appellate court in this case found and that is that there is --

QUESTION: Well, their supreme courts did, their supreme courts did. I mean, don't represent it as a judgment of the people of the states by their legislature. You're saying that -- that there were state supreme courts that struck it down, right?

MS. BEESON: I'm saying that there are -- there were Federal courts that have struck down now seven state online harmful to minor statutes because they have recognized the distinction between those statutes in the online context and the offline context, and let me just get to that second problem, you know, self-censorship being the first problem, self-censorship of speech that under any definition is protected for adults.

The second one, the -- let's just assume that you -- that you want to go ahead and try to set up these screens, first of all, a credit card is a form of payment, it is not an ID. This is not just a matter of flashing your ID if you're a young-looking adult and the bookstore owner is not quite sure that you're -- you're an adult yet. This is a matter of every single adult having to -- to provide their credit card to a Web site every time they visit a new Web site. The --

QUESTION: But there's a -- there's an alternative, the ID, you -- it doesn't have to be a credit card.

MS. BEESON: Your Honor, there is an alternative in the statute. What the record shows is that to get an adult ID, the primary way to get that is through a credit card. So another problem you have very similar to the problem identified by this Court in Reno v. ACLU is that, you know, almost all adults without credit cards have no way to access this speech at all, and again, you don't even -- you don't even get to this problem if, of course, the Web speaker has chosen the first option and has self-censored and not even tried to set up the screens.

So the other -- the -- the other thing that's very different, of course, about the blinder rack statutes is that none of them required the adults to actually register or disclose their identity. Credit cards create a permanent transaction, a permanent record of the transaction, and the -- the potential for abuse, because they are a form of payment, is much greater than merely flashing an ID.

QUESTION: Yes, but the Government says that there's a statutory protection that they cannot -- that the -- the person who gets the information can't pass it on to third parties.

MS. BEESON: Your Honor, there was actually -- there actually was a similar protection in the Denver Area case, which this Court found irrelevant given the remaining burden on -- on adults having to identify themselves before they seek access. In both the Denver Area case and in the Playboy case, this course -- Court -- struck down very similar burdens on adult speech. The burden here is much greater because the quantity and diversity of speech affected is much greater and the number of users affected is greater.

I would also like to point out that there's --

QUESTION: Well --

MS. BEESON: -- loophole in that privacy protection, which is -- which is right in the --

QUESTION: Well, who -- who says that they're guaranteed anonymity? I mean, if you go buy a gun, you're certainly not guaranteed anonymity.

MS. BEESON: Your Honor, the anonymity -- there actually -- this Court has held, of course, that there is a right to access --

QUESTION: When -- what --

MS. BEESON: -- protected speech anonymously, but that is not really what's at issue here. What's at issue is what the effect of the law is on protected speech for adults, and what the anonymity cases show is that if you have to give up your anonymity, a lot of people are going to be deterred, and that's what the record in this case shows too.

General Olson acted as if there was nothing in the record about the number of times. In fact, there is quite a lot in the record.

QUESTION: Well, you -- you say you're not relying on what you refer to as anonymity cases for this proposition?

MS. BEESON: I'm saying that I think that those cases are relevant only to the extent that they show that anonymity often deters -- that the -- the loss of anonymity will deter viewers. Here there is evidence, and it isn't even just the -- the loss of anonymity that's the problem, it's also the stigma of being associated with material that's been labeled by the Government as illegal, and that was a stigma that the Court also found relevant in striking down the Denver Area case.

I wanted to just quick --

QUESTION: If -- if it really -- if it really were illegal, then the stigma would be irrelevant, don't you think?

MS. BEESON: The -- the -- if it were illegal to?

QUESTION: Suppose you were stigmatized by having subscribed to poor -- to obscenity. You couldn't object to that.

MS. BEESON: No, no, no. But here, again, the -- the speech is protected for adults. They have the right to access as -- as the Court held in Lamont and in Denver Area and in Playboy.

QUESTION: Now, you have a third -- the third point. The first is there's too great a risk of self-censorship. The second is a screening requires loss of anonymity, and what's the third?

MS. BEESON: The -- the third was the four -- first point I made, Your Honor, which is that if you -- the defenses don't help you at all if you take a risk and -- and assume that your speech is protected and in fact the Government thinks it isn't. You know, you're Susie Bright, you put the column up, you think it's, you know, you think it's okay. The defenses don't help you and you're going to jail, not because you gave it deliberately to a child, but because you displayed it to an adult.

QUESTION: Well, that seems to me just really much, very much like the point that -- that the statute sweeps too broadly, there's a risk of too great self-censorship. That's really the same point, isn't it?

MS. BEESON: Your Honor, I -- I don't think it is the same point. I really think it's a -- it's a very distinct point, because the point is the speaker has two choices. They can either take a risk and display the speech, in which case they go to jail. They go to jail not because they gave it to a child, that's the only kind of a statute this Court has upheld. That's the -- that's what they upheld in Ginsberg is that you can make it a crime to deliberately sell this material to the child. All the -- all the -- all the Web publisher has done under this statute that sends him to jail is to simply make it available to the general reading public.

QUESTION: All right. Suppose -- what in your opinion is the right way for Congress to go about this? That is, I assume, and you may not assume, but assume with me that Congress is not interested in Susie Bright. That's all fine. They're not really interested in your examples. What they're interested in are -- is the professional pornographer and we know who that is and we know what it looks like, and it's too tough to go after them with the obscenity statutes because they say artistic, whatever it is, there's a set of reasons that hasn't been successful.

So here's their solution. It's called zoning. We won't stop people from looking at the worst stuff if they want to and if they're adults, but you have to take the subway and go out of Times Square, of if you're on the Internet, you have to identify that you're not a child. Now, we know that's a burden, but it's far more consistent with the First Amendment to let people look at anything they want including this worst possible stuff, as long as they're not hurting anybody else, and the way to deal with this is to zone just like we use to do in libraries. If you want to see the stuff that's locked up, you have to go to the librarian and identify yourself and show you're not a child and she'll open it with a key, that used to happen, and you could go look at it, all right?

That's Congress' solution. Now, if that is not a good solution, what is? Is there no solution?

MS. BEESON: Yes, there are a number of solutions which Congress has now passed which don't present the -- the problems that this statute does. This is not a zoning statute, it's a criminal statute, and because it's a criminal statute it's far more likely to lead to the self-censorship that -- that causes the big problem here.

We now have a Federal filtering law that this Court upheld, so any child that's accessing the Internet in a school or a public library has already -- is protected from most of these images. One of the most -- one of the important cites in the record that I want to mention here, the Government put in more exhibits --

QUESTION: Your organization didn't -- didn't support that -- that statute.

MS. BEESON: I'm sorry.

(Laughter.)

MS. BEESON: Yeah.

QUESTION: Also, what else, because as you know from things I've written, I'm very skeptical about the ability of filtering to deal with millions of families where there are no parents at home during the day and it's very tough. So -- so that's one. I'll look at that. What's -- what's two?

MS. BEESON: If I could just mention the cite to the record, Your Honor, because I think it's very important. The Government put in a lot of sexually explicit images as their exhibits in this case. They stipulated that every one of the major filtering products blocked every one of the images that they submitted as being a problem in this case.

QUESTION: Where's that at in the record?

MS. BEESON: That is in the joint appendix beginning at page 170, that's the joint stipulation between the parties, numbers 45 to 47. That is a pretty ringing endorsement for filtering software, and again, the district court specifically found --

QUESTION: If it's working what do you do about the Solicitor General's contention that it's easy to turn the filters off?

MS. BEESON: Your Honor, first of all, that is not in the record. What the record shows and what the district court found was that the filters are more effective than COPA, and the reason that they're more effective --

QUESTION: When they're working. Do -- do you contend -- I mean, if -- if we're uncertain whether it's easy to turn them off or not, let's assume it's not in the record. I -- it seems to me it's not a good argument on your part unless -- unless you maintain, and perhaps can show from the record, that it is -- it is not easy to turn them off.

MS. BEESON: Your -- Your Honor, under this Court's long-standing precedents, any content-based regulation of speech is presumptively invalid. It is the Government's burden to show that there is no less restrictive alternative, and they did not meet this burden under the clear record in this case. The district court very clearly found that the filters were at least as effective. They can actually block material that is not even commercial that comes from --

QUESTION: When working, when working --

MS. BEESON: -- foreign Web sites.

QUESTION: When working. The district court didn't make any finding --

MS. BEESON: But --

QUESTION: -- about how easy it is to disable them, did it?

MS. BEESON: Because the Government didn't put on any evidence, which is why he said he had to go outside the record to make that point, when we have only the record to -- to base the decision on here. Justice Breyer, to get to the other options that are available, the other things that Congress can do, one that I want to mention is a new statute that was passed, 18 U.S.C. -- I believe it's 2252(b) -- it gets at the Whitehouse.com problem. This is a law that penalizes sites that knowingly use misleading domain names, like Whitehouse.com, in order to lure children to this sites inadvertently. That is another law --

QUESTION: Statute -- has that statute been challenged yet?

MS. BEESON: That -- that statute has not been challenged. It is on the books now, and -- and therefore it is --

QUESTION: You think that's a good one, though?

MS. BEESON: It is certainly narrower, Your Honor, than this statute.

QUESTION: I understand that, but you think it's good, so we can count on the fact that that one's okay?

(Laughter.)

MS. BEESON: I will argue only that it's --

QUESTION: You will demur.

MS. BEESON: -- clearly narrower. And one of the reasons that it's narrower, all -- all jokes aside, is because it gets more clearly at -- at what the statute is aiming to get at, which is, you know, luring inadvertent viewers, especially minors, to particular sites, whereas this -- this law makes it a crime for anyone, any individual running a small business, you know, Mitch Tepper, our client who runs a sexual health network --

QUESTION: No, no, I understand it's a lot narrower. I've got -- I agree with you about that. I just want to be sure you don't stop before I've listed all the alternatives that you think are possible.

MS. BEESON: Yes, Your Honor, and thank you for returning me to my -- to my task there. Another one is a law that was passed the same time that COPA was passed -- passed, which requires Internet service providers to give all customers information about their filters.

Another misconception I think left by General Olson, you don't have to go out and buy another product. The record shows that all of the major filtering, all of the major Internet service providers provide these parental controls as a -- as a default for parents. When you -- when you set up your account with AOL, it asks you right then and there, you don't have to pay extra, whether you want to install the parental controls.

There is also a new law --

QUESTION: But why did Congress not think these were adequate? I can't understand it. I mean, if that's so obvious, why -- why didn't Congress see that, that obvious fact?

MS. BEESON: Your Honor, part of the problem, of course, is that most of these laws that I'm mentioning were passed after COPA was passed. COPA was passed very early on in this debate when the Internet was not as well understood as it is now. Frankly, the -- the solutions that it has thought up since then have been better, they've been narrower, and they have had less --

QUESTION: Screening existed. They certainly had, you know, you're relying heavily on that. Those -- those technologies existed and Congress surely considered them and thought it was inadequate for some reason.

MS. BEESON: Your Honor, the record in the case shows that it's at least as adequate and where, as here, there's a record that shows that there is a broad chilling effect on protected speech for adults because this is a criminal statute, those -- those tools are -- are --

QUESTION: But you're back to your first point now. I've got down filters, I understand that, and I've got the domain names, and I want to know if there's anything else.

MS. BEESON: Yes. There are two other points I would like to make on that. One is there's -- Congress has now created something called the Dot Kids domain, which is a safe environment in which there are sites that are reviewed that are intended just for children. That Dot Kids domain can interact with the filters in a way that allows a parent to set up the AOL account, for example, so that their younger child has access only to the sites in the Dot Kids domain.

QUESTION: What -- what are -- what are the age limits that are -- are specified there? Is there something for the 6-, 7-year-old group and then up to the 15-, 14-, 15-year-old group?

MS. BEESON: Your Honor, I believe, I don't have that statute in front of me, but I believe that that -- that the idea is to set up a safe environment for children 12 and under, that that -- that's the way that -- that it's defined there. And then finally, of course, as we mentioned, vigorous enforcement of the obscenity law could solve some of these problems. The Government has not been doing that, and I think that before --

QUESTION: But that, of course, in a sense is contrary to the -- I mean, from a First Amendment point of view, isn't it preferable to draw obscenity prosecution lines favorably towards free speech? And that's -- I mention that because that seems to me the basic First Amendment dilemma that I am having, that it is actually preferable to lean in the direction of letting the adults go and see anything they want, virtually anything. But that means that there'd be some burden attached, and the burden that's attached is the key to the spot -- locked room in the library, the taking New York Times -- Times Square and moving it out to Yonkers and some place, and here that you have to identify yourself as an adult.

That's the true dilemma I'm having, so when you suddenly say, oh well, let's, you know, launch a crusade against the obscenity, from a First Amendment perspective, that might be worse. So what do you think?

MS. BEESON: Your Honor, obscenity --

QUESTION: You don't really want that anyway, do you?

MS. BEESON: Obscenity is by definition speech that is not protected by the First Amendment.

QUESTION: Yes, but there are a lot of hard lines in this area, and a set of prosecutors --

MS. BEESON: There --

QUESTION: -- who are now determined to go, to -- to -- to crusade in this area could draw a lot of those lines differently from say you would.

MS. BEESON: Well, and I -- and I, of course, am not trying to say that those prosecutions wouldn't ever raise a First Amendment issue. Of course they would -- they would. But this statute raises a First Amendment question in every single application. Every single time this statute is applied, it violates the First Amendment because the only options available to speakers would either put them in jail for making their speech generally available to the public or -- or prevent adults from accessing that -- that protected speech because either the speaker has self-censored or they've put it all behind a screen that the record shows drives -- drives away the users, and I -- I think I was going to make just a another cite to the record that I think is an important one to note, and that is that the Government's own expert conceded that thousands of users would be deterred from any single Web site as the result of any registration system, and that is, again, similar to the evidence that the Court relied on in striking down the statutes regulating indecency in cable television in both the Playboy and the Denver Area cases.

This statute has greater problems because it's a criminal statute. Those statutes, of course, just involve civil penalties that -- oh, I thought I had that cite to give you but I actually don't -- I'll try to -- I'll try to find it in a moment.

The -- the district court in its findings of facts specifically noted that point about the Government's expert conceding thousands of -- of users.

QUESTION: But, just clarify it for a minute. The reason that thousands are deterred are, one, they don't want to self-identify, and two, they're unable to have credit cards or something of that kind. Those are the two reasons?

MS. BEESON: Yes, and they don't want to self-identify because they're too embarrassed or because they don't want to be stigmatized by being associated with the content.

There is an additional reason, which the record showed, which I think is important to close with, and that is the nature of this medium. This is an -- a wholly unprecedented medium of communication. This Court found that in Reno v. ACLU. It has extremely low barriers to entry. It allows users to access millions of sites just through this linking process.

The record also showed that by setting up these barriers that kind of destroyed the nature of accessing information on the Internet.

QUESTION: Would you tell me your response to General Olson's argument that the self-identification problem is not serious because there's a restraint on the -- on the transmitter's use of that private information?

MS. BEESON: I -- I'm sorry, I didn't follow you, Justice Stevens.

QUESTION: Well, his answer to your self-identification problem is that self-identification to someone who by law is not allowed to pass that self-identification on to third parties.

MS. BEESON: Your Honor, this Court has -- has never upheld any statute which --

QUESTION: But why shouldn't we uphold that argument?

MS. BEESON: Because it's so clear that it would deter adults from accessing protected speech. I think that that is --

QUESTION: But I don't see if you rely on your reason for deterrence is fear of self-identification, and if the statute makes that fear groundless, I'm not sure your argument is persuasive.

MS. BEESON: Oh, let me then cite to one more thing, which I meant to get to before and I didn't, and that is that there is a very big loophole in the privacy protection in the law and that is -- it's under (d), let me quickly find it -- under (d)(1), there was an exception -- (d)(2), exceptions to the privacy protection, any -- any person making a disclosure is not covered, I mean, can make the disclosure as long as it's necessary to conduct a legitimate business activity related to making the communication.

That's a fairly big loophole that I think would make a lot of users very nervous, and of course, the -- the initial problem is that they don't want to give their credit card or their -- or their ID even to the Web site. I mean, these are Web sites that they've never seen before. They're surfing the Web. They're not trusted local stores, they're -- they're unknown Web sites.

QUESTION: Yes, but -- but millions of users of the Web give their credit card number in order to buy books or something else that's for sale. I don't understand why that's such a terrible invasion of privacy.

MS. BEESON: Your Honor, in fact, what the record showed in this case was that the only time that Internet users were comfortable giving their credit card was when they were ready to make a purchase. This law applies to -- as General Olson conceded, to just making the speech available with -- surrounded by advertising. Anybody who did that, it doesn't just apply to speakers who are selling their speech on the Web.

In closing, I just want to say again that this Court has repeatedly held that the Government can't burn down the house to roast the pig, especially with so many other tools available to protect minors more effectively than this statute does. The Government cannot send adults to jail for displaying protected speech in the name of protecting children. Thank you.

QUESTION: Thank you, Ms. Beeson. General Olson, you have four minutes remaining.

REBUTTAL ARGUMENT OF GEN. THEODORE B. OLSON

ON BEHALF OF THE PETITIONER

MR. OLSON: Thank you, Mr. Chief Justice.

QUESTION: Could you address that exception to the disclosure thing that Ms. Beeson just brought to our attention?

MR. OLSON: Yes. I don't -- I don't read it that way. I don't think that's the -- the exception is intended to -- to allow the person safe harbor by performing the function of the adult check. I mean, I think that's what it's intended for --

QUESTION: Where --

MR. OLSON: -- and it hasn't been, hasn't been identified before as a giant loophole in the statute, and I don't think it's susceptible to that construction.

I wanted to go back to where Justice Breyer started, what would be covered by the statute? The examples given by the respondents were addressed in the Government's brief and all three of the -- all of those examples we don't believe are covered by the statute. Susie Bright is not within, doesn't fit within the prurient interest in the -- and would be defended on -- this is reminiscent of what the Court was facing in the American Booksellers case, and the respondents here were involved in that one as an amicus, were 16 examples were cited as the house was going to fall down, the sky was going to fall.

This Court decided to remand that to the -- the Virginia Supreme Court and the Virginia Supreme Court found that none of the 16 parade of horribles would be even covered by the statute. That's this all over again, and it flies in the face of the requirement by this Court to find a reasonable, a construction of the statute that would be, to which it would be reasonably susceptible that would deal with those constitutional problems.

And -- and these definitions, these definitions have already been approved with respect to minors in the Ginsberg v. New York case, so we're not -- and that's a couple of -- several decades ago, so we're not dealing with something that is brand new. Susie Bright, by the way, writes for Salon magazine. In order to get her column you have to register.

Adult IDs, you can get them with credit cards, you can get them with a check, and as we point out in footnote 2 of our brief, you can use a driver's license or a passport, so you don't have to necessarily use a credit card to do that. The -- the deterrence issue, all of the -- all of the -- all the court of -- the lower courts decided is that some people may be deterred, may be deterred, and some people may be -- find this as an impediment. Some people may engage in self-center -- self-censorship, and to the extent that there are thousands of people, that's an infinitesimal quantity of what's on -- on the Web in itself.

The most important point here, with respect to alternatives, Congress considered, as this Court suggested it should, the various alternatives. The House, the Senate report's good, but the House report, 775, which is cited all over the briefs on pages 16 through 20 considered all of these examples, the tagging, the filtering and so forth and went through all of the reasons why Congress found that they would not be effective and that what COPA was providing would be effective, that there were costs, the burden should be on the commercial purveyor of the material and so forth. Congress went through all of these things and made specific findings.

At the end of the day, it's important to emphasize this is a facial challenge to a statute constructed according to this Court's guidance, according to this Court's decisions as to how to deal with a very serious national problem. It contains a scienter requirement the purveyor of this material must know what's being done, he must be engaged in the regular course of business, and I can't recall -- I think it was you, Justice Breyer -- who asked the question, how else could Congress have done it? This is a national problem. It's serious. It's causing irreparable injury to our most important resource, our children.

Congress has been struggling with this. It listened to what this course had -- Court had to say. It examined the nature of the medium, because this is a different medium, but one of the wonderful things about this medium is also the -- one of the potentially dangerous parts of this medium. It's easily accessible to children in the home and it's important that the Government be -- this Nation and its three branches of government be concerned with the care and welfare of children independent of the parents' responsibility.

So this is an example of a serious national problem, Congress following conscientiously this Court's guidance as to how to solve the problem and then laying it out for this Court as to how it did so, and it came up with this statute, which is constitutional.

CHIEF JUSTICE REHNQUIST: Thank you, General Olson. The case is submitted.

(Whereupon, at 12:11 p.m., the case in the above-entitled matter was submitted.)

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United States v. American Library Association - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

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United States v. American Library Association

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Transcript:

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument first this morning in No. 02-361, the United States v. the American Library Association.

General Olson.

Mr. Olson: Mr. Chief Justice, and may it please the Court:

When libraries block Internet pornography from their computer terminals, they are simply declining to put onto their computer screens the same content they have traditionally excluded from their bookshelves.

By offering Internet access without pornography, freedom of speech is expanded, not abridged.

Under the Children's Internet Protection Act, or CIPA, no Internet speech is prohibited, inhibited, threatened, or chilled.

Libraries are simply exercising their discretion as to the content that their libraries will contain, the historic discretion to exercise that... that authority, and to how their library resources will be used.

Justice Kennedy: Mr. Olson, you have a number of important legal concepts to address.

I have three factual questions.

I've been through the extensive opinion of the district court, and... and they may be important for me.

Three different things.

When the library patron requests that the filter be disabled, does he have to explain why he wants it disabled?

Mr. Olson: No.

Shall I wait until you've asked--

Unknown Speaker: Go ahead.

Mr. Olson: --It's my understanding that the... the library patron would not have to explain any reason why he was asking a site to be unblocked or the filtering to be disabled.

Justice Kennedy: That's the next question.

Do you ask site by site or can I... can the library patron say, unblock the whole thing?

Mr. Olson: The library patron, if the patron is an adult, can ask the... the entire filtering to be disabled, and the library may disable... I mean, eliminate the filtering with respect to specific sites either on their own or at the request of a patron.

Justice Kennedy: All right.

And third, the district court said in some cases it takes 24 hours to a week.

Is that the usual thing or does... in many cases can the librarian just push a button?

Mr. Olson: I think that it is... it is... the record is not clear on that, and I... but my... my experience and my judgment in connection with our preparation is that it need not be a very difficult thing.

It's something that libraries can do without a great deal of difficulty.

But to the extent that it took any time at all, it would be the same as asking for a book that is not on the shelf or asking for an inter-library loan, the kind of customary things that library patrons do when they ask for a book or a resource in a library.

Justice Breyer: Is... is there anything in the statute that would prohibit a library from doing the following?

Any adult who wants to watch the thing without the screen, come up and ask, do you want to do it, and you... we can tell you, don't watch these obscene child pornography, et cetera.

Then we disconnect it.

Does the statute prohibit the library from doing that?

Mr. Olson: If I understand your question correctly, I... I know of nothing in the statute that would prohibit the library from doing that, provided that the... the person asks and the patron asking is an adult.

The First Amendment does not require libraries to sponsor the viewing of pornography.

When Government gives financial aid to speech on Government premises, it may make rational choices as to what not to finance.

Those... that... that doctrine is consistent with this Court's previous decisions.

In connection with this particular content, Congress and this Court have found that Government has... the Government has a compelling interest in preventing the dissemination of obscenity, child pornography, and in the case of minors, material that is harmful to children.

Such material has been traditionally excluded from public libraries, and Government has a basic, fundamental right in addition not to associate with or finance pornography.

Justice Souter: Isn't part of the problem that a lot more is being excluded?

I mean, as I understand it, the statute requires that a... a filter of some sort be used.

Filters are not sold... the blocking devices are not sold or prepared apparently in terms of the concepts that the statute uses.

The companies that do prepare them will not even disclose what in fact they are blocking so that it seems that an inevitable price of this is blocking more than... than the statute requires, and that's even without getting into the question of blocking material for adults as... as opposed... that... that might be unsuitable for children, but certainly aren't for adults.

How do you... how do you get over the problem of the... sort of the... the imprecision, the crudity, the overkill of the blocking devices?

Mr. Olson: Justice Souter, that is... that is true that any system is going to involve some over-blocking and under-blocking because it's impossible to know what is going to be coming over the Internet or impossible to make systems that are perfect.

But that's consistent with what... the historical decisions that libraries have made.

Justice Souter: But there's one thing that is clearly inconsistent I think, and that is when the libraries make... historically have made these decisions, they've known what they weren't buying or weren't stocking on their shelves, and here they don't--

Mr. Olson: Well--

Justice Souter: --because they... the blocking makers regard that as proprietary information.

Mr. Olson: --It's... there's several answers to that it seems to me.

In the first place, libraries have known that they have not stocked pornography, and it's not because of space, popularity, or expense.

They have chosen traditionally not to stock that type of material.

Every time a library decides not to subscribe to a magazine, it is over-blocking in a sense.

A magazine may have three pornographic pictures in it or sexually explicit pictures in--

Justice Souter: But it... but it does know what the magazine is, and here it does not know what the website is.

Mr. Olson: --It knows what the magazine has been.

It may not know what the magazine is in the future.

Furthermore, librarians don't read every book.

Justice Souter: No, but it... you know, it knows it's Playboy or whatever the magazine is, and here it doesn't know what the website is that's being excluded.

Mr. Olson: Yes, but it can... it can test this... what we're saying here with respect to that is over-blocking or under-blocking is a necessary part of the library function of making appropriateness judgments with respect to content generally.

That's the type of distinction--

Justice Kennedy: Well, I... I have a problem with... with that.

It... it seems to me a large part of your argument is you want us to think of this just in the same context of the librarian going through a list of books and deciding what books to buy.

But the Internet isn't like that.

What is it?

There's a... 1.5 million new entries into the system every day?

This is a whole new medium.

It's not like a library.

Mr. Olson: --Yes.

And, Justice Kennedy, it seems to... it seems to the Government and it seemed... it seemed to Congress that gross judgments are going to have to be made.

These libraries, as the record reflects and the findings of the district court reveal, traditionally or... or customarily block e-mail, chat, gambling, gaming, dating services, and some of them, as reflected... I think it's on page 37, 38 of the appendix to the jurisdictional statement... make... make judgments with respect to what's appropriate, what's offensive.

Those types of judgments are being made.

Yes, this is a new medium and it's--

Chief Justice Rehnquist: Well, but General Olson, there are supposed to be 90,000 books a year published in the United States.

Do you think librarians know the contents or even know of the existence of all of those 90,000 books?

Mr. Olson: --No, that... Mr. Chief Justice, that's our point.

This is a difference in quantity, but it is not a difference generically from what libraries traditionally have done.

Justice Souter: But when the library makes a book decision, doesn't it make a decision that says, we will not put God's Little Acre on our shelves?

It's a yes or no decision with respect to the book.

It's quite true there are lots of books out there that the library not... may not know about, but when it makes a decision not to put it on the shelf, it knows what it's deciding not to do, and here it doesn't.

Mr. Olson: Well, in a specific situation, a library might know that.

A library might decide that it would just stock history books or just stock... stock novels of a particular period.

There's nothing to suggest that libraries don't have the right to make those decisions and customarily make those decisions.

Justice Souter: Sure, but somebody along the line knows what they've decided to buy within the category and what they haven't decided to buy.

Mr. Olson: Well, that's right, but the traditional decisions that libraries have made... and the appellees do not dispute this... is that libraries have not chosen to stock the types of material on their shelves that they're now being asked to keep out with respect to the Internet.

This is a similar decision with a different medium.

Justice Souter: No, but that's... that's true.

But I think the thing that... one of the things that's troubling us is they're... they're... they are... they are forced, by virtue of that decision, not to stock a lot of other material, and they don't even know what it is and there's no way for them to find out.

Mr. Olson: But, Justice Souter, they... they may on their own... there's a... there's... one of the materials that's in the record is someone that made a study of several hundred thousand sites and decided which ones were properly blocked or improperly blocked.

Those types of studies may be used to unblock sites, to modify the filtering system.

Libraries could get together and create their own filtering system rather than the ones that are--

Justice Ginsburg: Could the library in... General Olson, in view of what you answered earlier, you said any patron could say, I want to unblock everything.

Could the library say, well, we want our staff to have access to everything?

Therefore, we are going to unblock everything for the computers that we use internally.

I thought the answer to that question was no, but it seems inconsistent with the answer that you gave.

A patron says, I want to see everything.

Fine.

Mr. Olson: --Well, I... I believe that the answer is that, A, the librarian can, in response to a request from a patron, unblock the filtering mechanism altogether.

And secondly, I think it's not entirely... it's not... the statute doesn't get into it, but it... but it seems entirely consistent with what I've just said, and I think consistent with the import of your question is that the library staff can disable the filter in order to make judgments about whether something has been, quote, properly or improperly blocked.

Justice Ginsburg: Because one of the things that was criticized about this statute was that every terminal, even the ones in the librarian's own office, closed office, has to have this filtering.

But your answer is, no, they don't.

You... you make it sound like it's really the library's option.

If they want to put everything on, they can.

Mr. Olson: I... I was answering your question with respect to what the staff may review in making the administrative decisions with respect to unblocking or other decisions with respect to the implementation of the statute.

The statute speaks in terms of having in place this technological mechanism by which this material can be filtered out or is designed and calculated to do that.

It doesn't... the statute does not require perfection.

It doesn't require librarians to act in--

Justice Kennedy: General Olson, if I understand the situation correctly, the libraries are wasting a lot of money litigating.

They could simply hire somebody to come into the library every day and say, please unblock everything, and then they could do it.

Mr. Olson: --With respect to that patron.

I mean, the... the... if my answer suggested that the library could just switch off the filter on a daily basis, I didn't mean to say anything remotely like that.

Justice Kennedy: Oh, okay.

Mr. Olson: It... this... particular patrons may say, I'm investigating breast cancer.

This... the sites... some of the sites that I'm looking for I can't find, and they appear to be on block.

Can those sites... or I've heard about these sites... be unblocked?

Justice Scalia: Or... or he can say, according to you, what do you care what I'm investigating?

I just want the site unblocked.

Isn't that right?

Mr. Olson: That's... that's correct.

Yes, that's correct.

Justice Scalia: I wonder how... how effective that... that system is in... in achieving some of the goals of the statute which... which is not just that... that some people using the... the Net happen to stumble across pornographic stuff but also, passing by, see it, and... and including children.

Mr. Olson: That... that may happen, Justice Scalia.

The system is not perfect.

It is not going to be perfect.

But what it does, it's a reasonable, rational articulation by Congress of an attempt to decide--

Justice Kennedy: Why couldn't the... why couldn't the children be protected by having two screens?

One screen for the kids; the other for the adults.

One is blocked; the other isn't.

Mr. Olson: --Well, I think that is... again, is a practical judgment that may work in some libraries.

It might require a great deal more resources from librarians.

It might require establishing different screens and mechanisms.

Yes, there are ways in which Congress could have done this differently, but this is a rational judgment, consistent with--

Justice Souter: May I go back to Justice Ginsburg's question with respect to the library staff on the unblocking?

I... I think her original question was, could the library say, we want our staff to have free access on the computers that they use, not that we want them to be able to look behind the block to see what's being kept out.

We just want them to have a free computer.

Is... is that a violation of the statute?

I had thought it was--

Mr. Olson: --I think that the... my answer to your question, if I understand it correctly, is that the computers in the library, if the library uses the... the Federal funds with either respect to the discounts or the subsidies, direct subsidies, all the computers in that library must be equipped with the technology protection measure with respect to each of those computers.

Justice Souter: --And that would include the staff computers.

Mr. Olson: Yes.

But that does not preclude the staff from determining, in connection with specific requests--

Justice Souter: Yes, but that's not the question.

The question is can the library say, this is ridiculous blocking this stuff for our staff.

We're not going to block them.

The staff computers are either going to have no blocks or every morning we will press the button that unblocks the staff computers.

Mr. Olson: --Well--

Justice Souter: That would violate the statute, wouldn't it?

Mr. Olson: --Well, one could... you're in an area, it seems to me, that... where there might be an as-applied challenge.

We're talking about a facial challenge to the constitutionality of the statute.

Justice Souter: And we want to know the extent of the statutory prohibition.

Mr. Olson: I... I understand that.

I... and the... your... the import of your question suggests that in this situation a librarian might exercise this discretion with respect to a filter.

I don't think in the first place--

Justice Souter: All I want to know is whether they can do it without violating the statute.

Mr. Olson: --My answer to your question is that to the extent that librarians are disabling the filter for the performance of their administrative function--

Justice Souter: That's not my question.

The library simply says, we want our staff to have free computers.

Mr. Olson: --I don't think so, Justice Souter.

Justice Souter: That would violate it.

Mr. Olson: That's right.

But remember, this is in the context of... of material that's been traditionally excluded by libraries, that libraries are free to put on their shelves in the form of books anytime they want.

It... the... the position of the district court and the position of the appellees is that the libraries, by doing this, violate the First Amendment right of their patrons.

I don't think that would be an issue in that context, and we're suggesting that the patrons have a right to Internet access anywhere they want outside the federally subsidized library.

And the library has several choices it may make here.

The library might not have Internet.

Maybe it's not appropriate for that particular library.

The library may have Internet with the filtering and accept Federal money with respect to putting in the computers.

Or the library--

Justice Souter: Could the library do this?

Could the library say, okay, we're... we're certainly going to comply with the statute for the library, but we are going to... we are going to establish... or the city says, we will establish a separate office?

It's called the... the computer viewing office.

It has a separate budget from the library.

It's in a separate building.

It has a separate staff.

Administratively it's different.

And with respect to the computers in... in that establishment, we're not going to ask for any Federal subsidies and the computers are going to be wide open.

Any reason they couldn't do it?

Mr. Olson: --I... I think they could.

They could either have a separate branch where separate Federal funds are not being obtained, or you're talking about a separate administrative ability--

Justice Souter: Yes.

Mr. Olson: --facility.

I don't... I don't believe that the statute would prohibit that set of operations.

Justice Stevens: Yes, but it would apply if they had, say, ten computers and nine of them were financed by the Federal subsidy and one of them was independently financed.

That one would be covered by the statute.

Mr. Olson: Yes, it would, Justice Stevens, although--

Justice Stevens: And if you rely on the... on the Spending Clause to justify this restriction, how do you... how does that justification apply to that tenth computer?

Mr. Olson: --Because it's a reasonable condition to the operation of the funds.

In the first place, Justice Stevens, in... the Internet is going to come through one opening, and the... the various different computers will be plugged up to that one opening so that the... the technological answer in part to your question is it's... the... the library would have to decide--

Justice Stevens: Well, you... you could have it on a separate phone line, it seems to me.

Mr. Olson: --Yes, the library could do that sort of thing, but it would--

Justice Stevens: The statute would still apply.

Mr. Olson: --Yes, it would.

Yes, it would.

Justice Stevens: And how do you justify that under the Spending Clause?

Mr. Olson: We believe that it's a reasonable condition that Congress reasonably... the patrons may not be able to distinguish where the--

Justice Stevens: Well, wouldn't it be equally unreasonable if we said it applies to separate facilities too?

I don't know why... I don't understand the distinction between a branch library that has one computer in it and a big central library with 10 computers, one of which is separately financed.

Mr. Olson: --Well, again, as we said in our briefs, that to the extent that that is an issue, it should be made... that point should be made in a... in an as-applied challenge to the statute, as opposed to a challenge on the face.

We don't think it's technologically going to be a problem and we do think that Congress can reasonably have assumed we're using Federal money to finance Internet in this library.

Patrons are going to be exposed.

If you're going to take the money, we would like patrons not to be exposed in this manner to that material, and the Congress could well have decided that it... the taxpayers don't want to be associated with a subsidy of that types of material... that type of material which has traditionally been excluded from the libraries in any event.

Justice Scalia: Well, you're saying not only that they... that they don't want to be associated with the subsidizing of it, but they... you're saying they don't want to subsidize an operation which includes some nonsubsidized material of this sort.

Don't you have to say that in--

Mr. Olson: I... well, I think that that would be a reasonable choice for Congress to make.

Justice Scalia: --You say they've made it.

Mr. Olson: Well, with respect to all of the computers in the library in... in that narrow context, yes, but I do think that that's the... we're getting down to the refinements of particular applications and those types of challenges have not yet been made.

Justice Ginsburg: General Olson, the words of the statute itself, though... there is some ambiguity.

It's... with regard to disabling the filter, the words are for bona fide research or other lawful use.

And am I right in thinking that your prior answer meant other lawful use means anything?

So, in effect, for an adult anything but obscenity would be a lawful use.

Mr. Olson: I believe that that's... that's... well, child pornography would also be excluded.

Both obscenity and child pornography--

Justice Ginsburg: Yes.

Mr. Olson: --there are Federal criminal statutes with respect to both of those.

And... and again, this is a reasonable effort by the library... by the Congress to make rational decisions with respect to allowing for some escape for people who are doing research or for other appropriate purposes.

Justice Scalia: Yes, but... but how would that authorize the unblocking entirely which would let in not just the material that's useful for research, but also obscenity, also child pornography?

How is that allowing a... a lawful use?

That's allowing an unlawful use, isn't it?

Mr. Olson: Well, I... I agree with that, but--

Justice Scalia: So if you agree with it, it means that... that--

Mr. Olson: --If... if... excuse me, Justice Scalia.

Justice Scalia: --No.

I think if you agree with it, it... it means that you can't unblock a whole channel.

You can say, I'll let you have this material, but I can't unblock this channel.

Mr. Olson: The... the--

Justice Scalia: God knows what else there is out there.

Mr. Olson: --The statute put it in terms of bona fide research or other lawful purposes.

That... there's bound to be some interpretive... given the joints there.

And again, to the extent that that would trigger a funding decision with respect to the enforcement authority or something, that's appropriately raised in an as-applied challenge.

I think it's important to stress the converse of what the appellees are asking for here.

They're asking this Court to make a judgment that the First Amendment prohibits them from exercising the discretion to make that kind of choice with respect to the Internet that they've always made or traditionally made with respect to the books on their shelf.

The consequence of that, it seems to me, would be strict scrutiny applicable to librarians' judgments with respect to not just the Internet, but microfilm, television, other medium that might... other media that might come into the library, and that librarians, instead of spending money on books, are going to be spending money on lawyers defending cases brought by authors saying, you... you violated my First Amendment right not to have strict scrutiny, and that instead of librarians making these--

Justice Stevens: But, General Olson, Justice White wrote a number of opinions in the First Amendment area where he started out saying, this is a case about billboards, or this is a case about something else.

I would think this is a case about the Internet.

It's not a case about books.

Mr. Olson: --Well, it might be if the decision was written that way, Justice Stevens, but if... if the appellees are right, the types of decisions that librarians have been making, appropriateness is... is the word, quality, appropriateness, and appropriate decisions... it's... it's in the record.

Those types of decisions the librarians are saying... asking this Court to say are subject to strict scrutiny and violate the Constitution.

This Court would have to make a First Amendment distinction between the selection of a book and the selection of another source of information.

Justice Souter: But isn't there a practical distinction that's got to be taken into consideration in your argument?

And that is, not every library can have every book.

Something has got to be excluded.

So we start with the assumption that the librarians have got to make these judgments.

We don't start with that assumption in the case of the Internet at all.

And the question in the case of the Internet is the different one.

Can you require them to exclude certain materials that it would be illegal for them to have as... as an abstract matter?

Sure, I suppose.

But the... the tough question is, can you require them necessarily to exclude a great deal more about which they make no decision whatsoever and which would be perfectly legal for them to have?

Mr. Olson: Justice Scalia... I mean, Justice Souter--

Justice Souter: You do me a great honor.

But I--

Unknown Speaker: [Laughter]

Justice Souter: I am Souter.

Mr. Olson: --I think I was expecting the next question.

[Laughter]

Justice Scalia: I wasn't even leaning forward.

Mr. Olson: Nothing is being--

[Laughter]

Nothing is being required of the library.

The library, if it chooses--

Justice Souter: If... if they want them.

But you're... but you're right, sure.

Mr. Olson: --If it wants to.

But the case comes to this Court in the posture that the district court has held and the appellees are arguing that for the library voluntarily to make that choice on their own, irrespective of any Federal Government subsidy or anything, would violate the First Amendment rights of their patrons.

Justice O'Connor: General Olson, what does the record disclose is the percentage of lawful material that is excluded under these software programs as opposed to material that is unlawful for the library to--

Mr. Olson: Well, the... the testimony was varied, Justice O'Connor.

One of the... one of the findings of the district court was that tens of thousands of pages of material may be erroneously blocked.

Now, the problem with that is that different filters might block different things.

Sites may be unblocked.

The filter may be set aside.

But even if it's tens of thousands of the... of the 2 billion pages of material that is on the Internet, we're talking about one two-hundredths of 1 percent, even if it's 100,000, of materials would be blocked.

If it... if it please the Court, I would like to reserve the remainder of my time.

Argument of Paul M. Smith

Chief Justice Rehnquist: --Very well, General Olson.

Mr. Smith, we'll hear from you.

Mr. Smith: Mr. Chief Justice, and may it please the Court:

The Children's Internet Protection Act is unconstitutional for two separate reasons.

First, the act does require libraries accepting Federal funds to engage in conduct that is itself at least presumptively unconstitutional.

Strict scrutiny does apply, we say, because the--

Chief Justice Rehnquist: What... what cases are you relying on to say that the libraries would be required to engage in... in conduct that is presumptively unconstitutional?

Mr. Smith: --This Court's whole series of cases involving the public forum doctrine, Your Honor, which I noticed was... was not really mentioned by my colleague, Mr. Olson.

The Internet, when it comes into the library, is... all of the information available on the Internet, as diverse as human thought... immediately available to the patron.

It is the most pure form of public forum that you can possibly imagine.

Justice Scalia: Yes, but it begs the question.

The... the point is that the Government is saying, if you want to get our money, you don't let it all come in.

So it is not... it is not a public forum once... once the... once the blocking is applied.

Mr. Smith: Well, Your Honor, the whole question about whether the library could do it this way depends on how you view the public forum doctrine.

And the... what the Court has said again and again is in deciding whether something is or is not a public forum, you look at whether the access is selective or general.

That... that's what the terminology was in the Court's case--

Chief Justice Rehnquist: You're not relying, at any rate, on cases dealing with libraries as such.

Mr. Smith: --No.

No, Your Honor.

Chief Justice Rehnquist: You're relying on a more general--

Mr. Smith: Applying the Court's general holdings in... in a whole series of cases to try to decide whether this is a public forum, a designated public forum, created--

Chief Justice Rehnquist: --You conclude that... you conclude that a library is a designated public forum.

Mr. Smith: --The Internet terminals in the library are a designated public forum, Your Honor.

Chief Justice Rehnquist: Not the whole library?

Mr. Smith: Certainly not.

We do not say that strict scrutiny applies to the decisions that the library makes about which book to buy because when the library buys books, it chooses books one by one.

It engages in selective access as opposed to general access.

With the Internet, on the other hand, the entire world of... of content that is on the Internet is there available to the patrons.

It has not been selected--

Justice Scalia: Not--

Mr. Smith: --by the library in any way.

Justice Scalia: --Not necessarily.

I mean, a library says... and some have... some did this before... before the Federal statute was in effect.

A library says, there's this whole wide world of the Internet out there, but we don't want all of it.

Some of it is garbage, and therefore we're going to block the obscenity.

We're going to block the child pornography, and we're going to block the... the pornography that's harmful to children.

Now, once they've made that decision, hey, presto, it is not a public forum anymore.

Mr. Smith: That... that... with respect, Justice Scalia, the way the public forum doctrine works in our judgment... and we're basing this as... as close as we can on this Court's cases... is that the one thing that Government can't do is allow all content under the sun, not even knowing what content is there, and then exclude, cull out one area of disfavored content.

If... if you say that that exclusion, that... that pointing at that one particular area of content and excluding it, is the same as not making it a public forum, then... then the public forum doctrine no longer has any meaning.

Justice Breyer: Is it also a public forum if it's a public school library?

Mr. Smith: The... the case of a public school library is a... is a more difficult case.

Justice Breyer: I just want a yes or no answer.

On your theory is it or is it not a public forum if it's in a public school library?

Mr. Smith: I think, Your Honor, I can't give you a yes or no answer.

Justice Breyer: Well, I need a yes or no.

You either do think it is or you don't think it is.

Mr. Smith: I would have to know how the policies are of the school--

Justice Breyer: No, no.

Exactly everything is the same.

I just want to know on your theory of the public forum doctrine is the 10th grade library or in an elementary school or a high school... they have... they do exactly what the libraries do here.

Is it a public forum?

Mr. Smith: --Then I... then I do say it's a public forum, Your Honor.

If they allow students--

Justice Breyer: All right.

So on your theory of the case--

Mr. Smith: --Yes.

Justice Breyer: --then if it is a public forum, the elementary school, Addison Hill Elementary School, has to let the worst possible pornography go over the computers that come into the public school library.

Mr. Smith: Certainly not, Your Honor.

Justice Breyer: Because?

Mr. Smith: Certainly not.

Justice Breyer: That's what I want my answer to--

Mr. Smith: First of all, all that holding that it's a public forum does is... is give you the level of scrutiny that applies to the rule.

Then you have to look at the rule, apply the usual standards of narrow tailoring, less restrictive alternatives, compelling interests--

Justice Breyer: --No.

We make all those same arguments that you've just made and say, look, there would be all these other alternatives and all... all the... I'm... I'm just... I'm not putting a... I'm putting a difficult... what to me is... is a difficult problem with your doctrine.

And I... I want to see how it works here.

Mr. Smith: --But I think the Constitution analysis may well come out differently with respect to young children, Your Honor.

Justice Breyer: Well, but I... I need to know fairly specifically because I don't want if there... if... to me frankly if... if your theory of it means that every public school has to have a computer attachment which bring this material into the school, I suppose a lot of schools wouldn't have computers at all in their libraries.

And... and that is worrying me.

So I'd appreciate--

Mr. Smith: Well--

Justice Breyer: --a fairly definite answer on this.

Mr. Smith: --Your Honor, I think that... that, first of all, classrooms are different from libraries even in the school context because a school classroom... library... a computer is obviously not used for independent research.

If the... in the library situation in the school, you would have different age groups.

You'd have different considerations.

You'd have different policies.

There's a lot of different things that could be distinguished from this case.

And I think it... it's important--

Justice Breyer: So your answer is that in your opinion now you think it probably would be constitutional as applied to school libraries but not as to public libraries?

Mr. Smith: --It... it may well be, Your Honor, depending on the age group, depending on the circumstances, depending on the way the... the library is used by the students.

Justice O'Connor: Mr. Smith, why shouldn't we be conscious of the holding of this Court in Denver Area v. the FCC where the Court concluded it might be premature to apply forum analysis due to changes taking place in the law, the technology, and the industrial structure related to telecommunications?

I mean, this too seems to me an area for caution, is it not, in importing wholesale public forum analysis in the library?

Mr. Smith: Well, Your Honor--

Justice O'Connor: I would think Denver Area would have some bearing on that.

Mr. Smith: --Denver Area has a substantial bearing and I think it's one of the strongest cases supporting our position.

It is true that the Court did not go... it... the... the plurality opinion in... in the case did not go so far as to say we're going to apply a public forum analysis and strict scrutiny, but... but Justice Breyer's opinion went much... very close to that and said we're going to apply very heightened scrutiny.

We're going to look very carefully at this.

And this was a law that is in many ways closely analogous to what's going on here.

It was a law that said, we have a public access station.

Anybody from the outside world can come in and put whatever programming they want on that station, but we're going to exclude indecency, just that one area of content, because we don't think that belongs in the home.

Justice Breyer: But the... the other part... assuming it's some kind of stricter than just reasonable, however that is brought about, the... I'm very much concerned also about something Justice Kennedy raised.

If all that this statute means is that a person who wants access to the 10,000 deep... whatever it's called... what's the... some special word.

It's... it's deeply like Star Wars almost.

It's some kind of like an extra galaxy that's very hard to get to.

All right.

These 10,000 pages which now were blocked... what he has to do... that person... is he goes to the desk and says, please unblock it.

I want to use... I want to do research and this is blocking things that I want.

I'm not going to look at material that is absolutely unlawful, such as this very obscene material, child pornography.

And then the library is free... will say, fine.

Mr. Smith: Well, Your Honor--

Justice Breyer: Now, if all that's necessary, you have to go to the desk, what is the great burden on speech?

After all, I grew up in a world where they used to keep certain materials in a special place in the library and you had to go and ask for them.

So?

Mr. Smith: --Well, Your Honor, the... the way the disabling provision is set up, first of all, is it's designed to give the library some job to determine whether your purpose is bona fide or not.

It says bona fide research or other lawful purpose.

So the first problem is you go to the librarian's supervisor who has the authority under the statute to turn off the filter and you have to explain to them what your purpose is to look at the--

Justice Ginsburg: General Olson said no, you don't have to explain.

Mr. Smith: --Well, the... the statute on the face of it says the library is required to inquire into your purpose and make a decision about whether it is a bona fide research purpose or other lawful purpose for looking at the material which has been filtered out by the... by the filter.

So you have a discretion problem of severe proportions, I submit.

Plus, you have a stigma problem, very much like the one--

Justice Ginsburg: But not if you read other lawful purpose to mean everything except the specific categories, child pornography, obscenity.

Mr. Smith: --They will presumably have to have some information about what sites you're interested in looking at in order to determine whether that would be lawful or not.

So they will then have to inquire into, well, what's... what is it you need to get that's being blocked?

Why are you looking at it?

Is it lawful?

Justice Breyer: It doesn't say that in the statute.

All it says in the statute is that the administrator may disable a technology protection to enable access for a lawful purpose.

So why couldn't you just sign a piece of paper saying I do not want to use this for an unlawful purpose?

Period.

End of the matter.

What in the statute prevents the library from accepting that?

Mr. Smith: Well, clearly the library is responsible for determining whether or not you fall within the exception.

Even if... even if they're empowered under the statute... and I think this is unclear... just to accept your representation without any further explanation, you still have the problem that you're going up to the... to the librarian and saying please turn off the smut filter.

I need to get access to some material.

So that... that you're being required to do that.

There's a stigma problem very much like--

Justice Breyer: Is there any other problem?

Mr. Smith: --There's a third problem, which is you have... a lot of times this will only come up in the middle of your research session.

You won't know that you're going to be blocked getting access to the Republican National Committee site or to the site for some orphanage that is trying to raise money.

There's... since the... many of the blocks are so irrational, you can't anticipate it.

So you'll have to stop your session and go talk to a librarian about getting this thing turned off or getting this site unblocked.

Somebody will then have to look at the site--

Justice O'Connor: But in a library, when you're looking for a book, it might not be there, and you might have to go to the librarian and order it or borrow it from another institution.

I don't think that's atypical of what happens in research.

Mr. Smith: --But certainly, Your Honor.

But... but our submission is that you shouldn't just willy-nilly compare the Internet in the public library to books and how they're handled by libraries because the Internet is a public forum.

It is all of this content that has not been prescreened or preselected by the Government which they are making available to you--

Justice O'Connor: But in this context, perhaps we should not import public forum analysis.

It creates lots of problems--

Mr. Smith: --Well, perhaps--

Justice O'Connor: --for instance, in public schools, as has already been discussed.

So it's... and there is no case from this Court saying that having an Internet in a library creates a public forum.

That's what we're here to decide I think.

Mr. Smith: --Indeed, Your Honor.

And... and the Court has repeatedly cautioned that when you're making a decision about whether something is a public forum, you have to look at the particular medium of communication that is at issue, not the broader context.

So, for example, when the Court in Cornelius was looking at the Combined Federal Campaign and trying to decide whether that was a public forum, the Government said, well, it's the Federal work force.

The Federal work force is not a public forum.

But the Court said, no, we have to look and see what kinds of people have been given access to the Combined Federal Campaign and allowed to solicit funding from the Federal... the Federal workers and has it been done on a selective basis or a general basis.

Because it was selective, the Court ultimately determined that it's not a public forum.

It may well be that--

Justice O'Connor: Well, if you say that the world we look at is the people using these programs under the Federal law requirements in libraries, then it isn't a public forum.

Mr. Smith: --Well, Your Honor, if you allow the Government to define its forum as all content under sun... under the sun ever invented by mankind except the piece that they don't like, then I submit that... that will be the end of the public forum doctrine because there will never be any situation in which the Government will be constrained in any way to censor out a particular piece of content that it... from the public forum.

Justice Scalia: Designated public forum doctrine.

Mr. Smith: Yes, Your Honor.

Justice Scalia: Traditional public forums will always be public forums.

Mr. Smith: Right, but I'm... we're here in the context of designated public forums.

And if you allow content--

Justice Scalia: I've always had trouble with that doctrine anyway.

Mr. Smith: --If... if you allow the content--

[Laughter]

--to be defined as everything but, that's okay.

Then there... there is no doctrine.

Chief Justice Rehnquist: So... so a... a library that chooses not to get the Internet at all is not a public forum.

It's only when it gets Internet terminals that it becomes a public forum?

Mr. Smith: Well, and it... and then it has to make another decision.

Is it going to just turn the Internet on or is it going to do what it could do, which is to say we are going to treat websites like we treat books.

We're going to look at them one by one and decide whether they should be available, whether they meet our collection development policies.

Justice Kennedy: But I thought... you said there are two reasons why you should prevail, and we're still on the first.

Mr. Smith: I appreciate that, Your Honor.

[Laughter]

Justice Kennedy: But... but you... you said at the... at the outset that it would be... as I understood it, that it would be unconstitutional for you to do this on your own initiative.

And now you're saying that you could?

Mr. Smith: No, no, no.

It would be... it would trigger strict scrutiny for a library to do exactly what the statute requires.

That's our submission, which is to say if they allow the whole Internet in except this one piece of content under the public forum doctrine... or perhaps the Court wants to apply the kind of public forum doctrine light of the whole question of whether--

Justice Kennedy: I just want to be... I just want to be clear.

Suppose this is a general public library.

Mr. Smith: --Yes, sir.

Justice Kennedy: Could it voluntarily do exactly what the statute tells it it must do?

Mr. Smith: Our position is that that would trigger strict scrutiny that they would then have to satisfy and--

Justice Kennedy: Well, and how would the strict scrutiny come out?

Mr. Smith: --Excuse me?

Well, in... in most, if not all, cases it would come out against it.

It would be unconstitutional, clearly, because they're blocking a vast amount of speech that is not even sexually explicit.

And so we have a narrow tailoring problem.

And there are much more... much more effective, less restrictive alternatives which we had all this evidence at trial about.

Justice Kennedy: And that... and that is... and that is because legally you would be a state entity denying access to a designated forum to a... a listener who is a member of the public.

Mr. Smith: Exactly, Your Honor.

Justice Souter: Okay.

Justice Kennedy: What was your--

Justice Souter: --What if the... what if the facts were changed in this way?

The library... I'm sorry.

Did I... no.

Please go ahead.

Justice Kennedy: No.

I think we're still pursuing the first--

Mr. Smith: Yes.

I'm trying to make sure I get the--

Justice Kennedy: --Sooner or later, I want you to get to the second--

Mr. Smith: --I appreciate it, Your Honor.

[Laughter]

Justice Souter: --Okay.

One last question before you get to the second one.

What if the library said, we're not letting in the whole Internet?

We think there are some sites that it would be valuable for our research patrons to have.

We've got to... we're simply going to select 100 websites or 1,000 out of the millions that are there and we're going to let them in.

Would that be a violation of designated public forum?

Mr. Smith: Clearly not, Your Honor.

Justice Souter: Okay.

Mr. Smith: There's no... there's no argument that we... we'd make that that would be unconstitutional.

They would then be letting them in as they would books, using their collection development policies, deciding what's valuable, and that would not be a violation.

Justice Scalia: But... but how did... I mean, it's fine to say it's no violation of the Constitution.

But you're also saying yet it remains a designated public forum.

Mr. Smith: No, Your Honor.

Justice Scalia: Oh, it... you agree it would not be a designated public forum.

Mr. Smith: Absolutely not.

If they're not letting everybody in, as... as general access.

They're exercising selective access.

Justice Scalia: But don't... don't many libraries already exclude, for example, chat rooms?

Mr. Smith: It's not a question of exclusion.

It's a question of affirmative inclusion through selection--

Justice Scalia: No, no.

I mean, but... but my understanding was that some libraries that... that have access to the Web do not allow access to chat rooms.

They don't think that that's a proper library... library function or whatever.

At least as to those libraries, I assume you would acknowledge that there's no designated public forum.

Mr. Smith: --No, Your Honor.

We don't acknowledge that excluding--

Justice Scalia: I didn't think you would.

Mr. Smith: --excluding an area of content can take it out of the forum doctrine.

Let me get to my second point, though, which... which is--

Justice Stevens: When you start on your second point, let me just ask you to comment on one thing because I want to be... I want the Solicitor General also to comment on the same thing.

Do you think, given the state of the record now, if we agreed with the Government's submission that the district court's rationale was wrong, would it be proper for us to decide to rule on the second theory?

Mr. Smith: --Oh, clearly, Your Honor.

I don't think there are any... any facts that it would be necessary for the Court that haven't been brought out in that... that trial and that lengthy opinion.

Now, our position with respect to point two is--

Chief Justice Rehnquist: What is point two?

Mr. Smith: --It is that libraries--

[Laughter]

--even... even if the Internet is precisely analogous to books in the library context, that something about the library context lets librarians in the exercise of professional judgment that they ordinarily exercise, even in deciding to edit the Internet, that the Federal Government under the First Amendment has no business using the spending power to try to distort that medium and push librarians away from their professional judgment toward the most restrictive possible policy on information flow into the library setting.

In other words, our second point is that a library is very much like a public university which this Court has several times indicated is a... is a special sphere set off for the governmental promotion of private and free expression, that in that kind of a setting, the Federal Government should not use the spending power to impose a one-size-fits-all policy about--

Justice Kennedy: Is this a federalism concept and you... and you would cite our cases like Printz and so forth?

Mr. Smith: --No, Your Honor.

I'm citing only First Amendment cases.

I believe it is a First Amendment concept that there are certain kinds of relationships or certain kinds of institutions in which the amount of speech that is being allowed is decided by the people who are designated as professionals to run that institution.

For example--

Justice Kennedy: So... so your argument would be the same if the... if the State of California were doing it.

It's not just the Federal Government.

Mr. Smith: --Yes, Your Honor.

If it was done by statute.

But... but, for example, professors should set the curriculum at a public university.

I don't think that the Congress can say to the universities of this country, we've given you money, you therefore have to cut your departments.

If you... if you take the money--

Chief Justice Rehnquist: How about... can the board of regents set the curriculum?

Mr. Smith: --I think it... when you get to the people who run the... run the university as their job, that's fine, yes, Your Honor.

Justice Breyer: I mean, that's pretty far-reaching.

It's very interesting.

But the... the question... I'm... I don't suppose you object to the Federal Government saying, even if it's money to be spent on books, you cannot spend this money for material that it is unlawful for the student to see, such as child pornography.

Are you objecting to that?

Suppose the Federal Government were to say, no child pornography.

Mr. Smith: Certainly not, Your Honor.

Justice Breyer: Certainly not, okay.

So then what you're objecting to is we let them cut that stuff out, but you're objecting to the requirement of a particular technology where the technology may exclude some other things.

Mr. Smith: Well--

Justice Breyer: That's your objection.

Mr. Smith: --first of all, let me address the book question.

What this law is analogous to is, as applied to the book context, a law where the Government says we're going to help you buy books.

Here's 10 percent of your book budget a year, and it doesn't just say you can't spend our money on books of a particular content.

It says you can't have in your library books of a particular content.

It starts to try to invade the professional judgments of librarians about what books would need to be to their patrons.

And we have here a situation where 93 percent of the libraries have made a more liberal, more open policy decision than the one that the Congress favors, and they're now using the spending power to push them in--

Chief Justice Rehnquist: Well, what if... what if the Federal Government said, we're going to give you 10 percent of your annual appropriation and you can't use that money to acquire a particular class of books?

Mr. Smith: --I think as long as it was viewpoint neutral, Your Honor, and otherwise a legitimate line, that would be not a problem.

But... but here--

Chief Justice Rehnquist: Well, supposing you... you can't use it to acquire soft pornography.

Mr. Smith: --To the extent one could define that concept, I think that generally the Government... the Court has said the Government can decide what... what the money that it uses to subsidize the... the local government with... what it will be spent on, but it can't, I think, then expand the subsidy into attempting to regulate things like the other book decisions that the library might make.

Justice O'Connor: Well, even in areas where it's already against the law to have materials that are obscene or harmful to minors?

You think the Government has no authority to prohibit its aid to be used for that?

Mr. Smith: Of course not, Your Honor.

Certainly the Government can say that you shouldn't make available materials to people that... that... for whom they have no constitutional right to see them, obscenity for adults--

Justice O'Connor: Right.

Now, should we make any allowance here?

Is there any leeway, if you will, simply because the technology is not yet available to filter perfectly where it's evident that there isn't a huge percentage amount of things that are being excluded, but the software isn't perfect?

Mr. Smith: --Well--

Justice O'Connor: Should... should our doctrine take that into account, do you suppose?

Mr. Smith: --If... if I might, just in answer to that question, Your Honor, take a moment to describe what... what it really is that the record shows about how these filters operate because I... I think that that's really very helpful.

What these... these filters are, are lists of... of sites that are banned for access in the... in the setting where they're... where they're in effect, and the... the findings are that there's about 100,000 sexually explicit sites on the Internet at the time of trial.

And so we can assume that some high percentage of that 100,000 are on the list, 90,000 perhaps, because there were some that they missed constantly.

Now, in addition, the court found that the... the very same list blocks at least tens of thousands of additional sites that are not sexually explicit at all or, if they have sexually explicit materials, are educational.

They... they teach people about gay sexuality or they teach them about safe sex techniques.

And so we have... on these lists is a proportion, a huge proportion, perhaps 25, perhaps 50 percent of the sites that are blocked that are not illegal even for children.

Now, of the 90,000 or so that are blocked that are sexually explicit, there isn't a shred of evidence in this trial record that the Government attempted to put in about whether any of those are obscene.

There was no showing of any kind that the filters ever actually find speech that is illegal for adults.

And there's good reason to think that there isn't a lot of it on there because clearly illegal material is distributed in a different way than the... than the way that would allow the filtering--

Justice Ginsburg: Mr. Smith, you used... you said perhaps 50 percent.

This... and General Olson said tens of thousands of pages, but consider the--

Mr. Smith: --Well--

Justice Ginsburg: --in relation to the Internet.

In this record, at least in this opinion, this was the finding made more often than any other by that three-judge court, but every time they used the word substantial... and they don't give us any 50 percent.

Substantial over-blocking is the word that's come up over and over again.

I think you must have said it in at least a dozen findings.

Mr. Smith: --If I could... if I could address that, Your Honor.

The... the court did say at least tens of thousands and they used the word pages at that point.

But it's quite evident, if you look at the way they were reasoning from the evidence, that they meant sites.

And the evidence is that there's about 11 million websites on the Internet, in... in the accessible part of the Internet and that 100,000 of those are the sexually explicit ones and that the... there are at least tens of thousands more that are on the list.

So it's... the Government also says in their brief that about one percent of the Internet is over-blocked, which would be about 100,000 sites.

So it is a substantial percentage.

It is also a substantial amount.

And most importantly, it's a very large percentage of what they're blocking is not what they intend to block.

Justice Scalia: Mr. Smith--

Justice Kennedy: --Oh, you mean the Government--

Justice Scalia: --can I ask you a question about... about the public forum doctrine?

As I understood your earlier answer, the Internet is not a public forum if a library does not take all of it and chooses to exclude chat boxes.

Mr. Smith: No, that is not my answer.

Justice Scalia: Oh, that isn't your answer.

Mr. Smith: No.

Our answer is--

Justice Scalia: It... it remains a designated public forum even if you don't take all of it, you say.

Chat rooms.

We don't want them.

Mr. Smith: --The way for it not to be a public forum is for them to decide affirmatively what they do want to include, not simply to say we'll take the... the content of 400 million people contributing to the Internet, but we'll carve out one thing.

If you allow that, then there is no designated public forum doctrine, and the Court has repeatedly said the distinction between a public forum and not is whether or not there's been selective access, which... by which it means case by case--

Justice Scalia: Why isn't that selective access?

I... we don't want chat rooms.

And it's not a total free-for-all, anybody wants to come in and talk.

No, we don't want chat rooms.

Mr. Smith: --Maybe chat rooms are okay because the question is whether that's a content-based exclusion.

But clearly, here you have a content-based exclusion.

Justice Scalia: It isn't content-based.

No.

Okay.

It's not a content-based--

Mr. Smith: And it--

Justice Scalia: --Now, so if they say no chat rooms, it doesn't become a designated public forum.

Why does it remain a designated public forum if what they say is, in addition to chat rooms, we don't want that portion of the Internet that runs a risk of bringing into our computers obscenity, child pornography, material harmful to children?

We don't... I don't really know what it is but it's not worth it to us.

So we don't want chat rooms and we don't want this... you say it's over-inclusive.

It's not over-inclusive.

It's whatever it takes to keep out of what we're bringing into our library those harmful materials.

Now, why does that mean I've created a public forum?

Mr. Smith: --The fact that they may... may or may not think they have a good reason for doing it can't factor into the analysis, Your Honor.

The way the... the public forum doctrine works is you look at whether or not they... they have allowed access generally or not, and if they have allowed access generally and then they say, but we don't want this, then that's a violation or at least it triggers strict scrutiny.

Justice Kennedy: And that would also be a violation if the Government paid for 100 percent of the cost of the computer, both the hardware and the monthly billing for the Internet.

Mr. Smith: Yes, because it lets in everything in the world.

Every commercial site, every catalog, everybody's personal website, and a million other things I can't even conjure up are all being allowed in and provided to people in that setting.

And then they're saying, except you can't have this.

Now, if that's permitted under the forum doctrine, how can Southeastern Promotions be right where they said you can have any... any play except Hair?

We don't like Hair.

Justice Breyer: Well, you can have it.

You just have to go up to the desk and ask for it.

Mr. Smith: And you have to deal with exactly the... the discretion of... of the librarian and about whether or not he or she is going to allow you... allow it.

You have to deal with the stigma, and you have to take the time out from your research session to go do that if it turns out in the middle of your research session that... that some site that you need to go to.

And you have to decide to do it not seeing the site because you can't see it to know whether it's valuable to you.

So when you're surfing the Internet, the vastly more likely outcome will be that anything that's blocked people will just bypass and go on to something else.

Justice Souter: What would your response be if... if you start where Mr. Olson started and said, you don't have to go through all of this?

All you have to do is walk up to the librarian and say, I'm an adult.

I want it unblocked.

And it will be unblocked.

Where... where does that leave your position?

Mr. Smith: Well, it's not clear that the librarian would say yes.

The librarian certainly doesn't have to say yes.

Justice Souter: I... I think Mr. Olson's suggestion was that the librarian, absent some extraneous reason, would say yes.

So... so let's add that to the mix.

The librarian says yes, unblock.

What is... where's your position?

Mr. Smith: It seems he's on a horn... the horns of a dilemma.

Either that is something that has got a lot of stigma to it that very few people are going to do, so it has the... the effect of suppressing speech, or everybody--

Justice Souter: Is that your position--

Mr. Smith: --That is my position.

Justice Souter: --that even to do that would be stigma?

Mr. Smith: Yes.

Justice Souter: So that doesn't solve the problem.

Mr. Smith: Sure.

You've got to go up and say please turn off the porn filter, Your Honor.

Justice Souter: That isn't what he says.

Mr. Smith: Well, that's what it is.

Justice Souter: He says, look, you block a lot of stuff.

Just please unblock it.

Mr. Smith: Well, if it turns out that people wouldn't be stigmatized by that... and I think the court below was correct to conclude that they will be... then... then there's the second problem, which is what... what is the purpose that you've accomplished by requiring people to go through this meaningless exercise other than to deter them.

That is apparently then the only purpose of it and--

Justice Kennedy: Well, it distinguishes an adult from a child.

Mr. Smith: --You can do that in many different ways, Your Honor, that don't require anybody to approach anybody.

You simply have a... a card that they put in the computer that shows their age, and then it gives them whatever access the library decides is appropriate or whatever the parents may have decided is appropriate for the children.

There are many less restrictive alternatives including use of the filtering technology as an option, at the parents' option for different ages that... that can be considered and which were explored in depth by the district court, which I must say looked at this issue very carefully, was very sympathetic to the problems that arise with the... with the sexually explicit content.

It said the one thing we can't do is have one across-the-board answer even in one library, especially nationally, to have Congress which has no knowledge at all about what conditions may prevail in any given library, saying, well, we're going to push you, through the budgetary process, toward our position even though 93 percent of the librarians have found a much more suitable set of solutions in less restrictive, somewhat more subtle, more mixed policies than the one that Congress decided in its wisdom it should try to force on the library community using the spending power.

Justice Ginsburg: Mr. Smith, this... this law covers elementary and secondary schools as well, but this challenge relates only to libraries.

Mr. Smith: Only to public libraries, Your Honor.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Thank you, Mr. Smith.

General Olson, you have 5 minutes remaining.

Mr. Olson: I would like to invite the Court's attention to page 37a of the appendix to the jurisdictional statement which is the decision of the court below.

In the first full paragraph, the court found approximately 95 percent of libraries with public Internet access have some form of acceptable use policy or Internet use policy governing patrons' use of the Internet.

Now, what the libraries are saying here is the exercise of certain discretion violates the First Amendment rights of their patrons, and therefore every time they exercise that type of discretion in this context, they're subject to strict scrutiny.

What this statute does is gives the libraries the right, if they choose to accept Federal funds, to make what kind of decisions, to exclude pornography which there's no dispute in the record libraries have, from time immemorial, chosen not to put in their libraries.

So the decision that they're making is the same one they have already voluntarily made over the years.

It would inhibit their decisions to exclude e-mail, chat, gambling, dating services, and the other things that this part of the court below's decision held that they are doing already.

It's the traditional type of discretion that libraries have exercised with respect to whether they be... want to be a fiction library or a library that's specializing in this or that or technology or anything along those lines.

So the type of discretion that the librarians are saying violate their First Amendment rights are the types of discretion precisely that they've been exercising for years.

Justice Kennedy: General Olson, I hate to use part of your rebuttal time.

But would you tell me whether the Government thinks we should address the unconstitutional conditions issue that's discussed at length in the footnote if we agree with you on your principal submission?

Mr. Olson: I... we have no problem if the Court decides it, although it wasn't briefed and it wasn't the decision below, but we don't think it's remotely possible for this Court to decide that question in this context against the Government.

If... if the libraries are right, they're saying they don't have a First... they can't have it both ways.

They don't have a First Amendment right to make this discretion... discretionary decision with respect to their... the... the materials in their library, and then they turn around and say, allowing us to make that is an unconstitutional... or giving us an incentive to make that very decision is an unconstitutional condition.

This is a condition that's connected with libraries' traditional decisions.

It's in an area where the Government... the Congress of the United States and this Court has said the Government has a compelling governmental interest already.

It's a condition to the use of the funds.

This is not extracting from libraries some separate, unconnected decision.

It's connected with the actual use of the funds.

And it does not say that libraries may not stock pornography.

If they want to abandon the years of tradition of not stocking pornography on their bookshelves or in some other form, movies, whatever it might be, they can still do that without violating this condition.

So the libraries have plenty of choices.

They can not accept the public money.

They can accept the public money and use it in... in the way that Congress decided, which is consistent with their traditional exercise of discretion.

There's many distinguishing factors between this case and the cases in... in which the Court has exercised... expressed some concern with respect to the First Amendment issues here.

It is not... this case is not a regulation of speech, but the actions of a Government acting in a proprietary capacity... a library to make its own decisions, deciding what to subsidize, what speech to have in that library, what speech not to have in that library.

The Government is merely... is making a content decision, not a viewpoint decision.

There's no contention that there's a viewpoint decision.

The type of decision that they say is being forced upon them, which is actually voluntary, is the same type of decision that libraries... librarians customarily make.

The Federal statute and the library policy that they're complaining about expands information, it doesn't contract information.

And this Court said in the Arkansas Educational Television case, a jurisprudence that would result in the constriction of speech, rather than the expansion of speech, would be a repression of First Amendment rights.

If Congress can't put this condition--

Chief Justice Rehnquist: Thank you, General Olson.

Mr. Olson: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

City of Los Angeles v. Alameda Books, Inc. - Oral Argument

Fri, 09 Jan 2009 14:50:27 +0000

Case:

City of Los Angeles v. Alameda Books, Inc.

Media File:

00-799_20011204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 00-799, the City of Los Angeles v. Alameda Books, Inc.--

Mr. Klekner.

Mr. Klekner: Mr. Chief Justice, and may it please the Court:

Following its 1977 pioneering study, the City of Los Angeles enacted a, in 1978 a comprehensive zoning ordinance regulating the location of all types of adult business activities in the city.

The ordinance defined eight business activities and required that they each be separated from each other by 1,000 feet.

Notwithstanding the clear intent of the city's ordinance in 1978, it became apparent that the ordinance could and was being interpreted to permit more than one adult business in the same building.

This has been described by plaintiffs as a drafting error inadvertent loophole, but it was an ambiguity, and it became necessary to amend the ordinance in 1983 to remove that ambiguity, thereby--

Unidentified Justice: Do we know if, at the time the ordinance was enacted... 1977?

Mr. Klekner: --'78, sir.

Unidentified Justice: '78.

Do we know if, at that time, there were businesses like the one at issue here, i.e., a place where they have both sale and rental and viewing--

Mr. Klekner: I presume--

Unidentified Justice: --Do we know if those businesses existed in that form in 1978?

Mr. Klekner: --I believe they did.

I don't believe--

Unidentified Justice: All right.

Mr. Klekner: --that the study specifically analyzed specific combinations in one building.

Unidentified Justice: All right.

Mr. Klekner: That wasn't the purpose of the study.

Unidentified Justice: Well, your clients didn't have businesses like that.

Your clients just had one or the other, wasn't it?

What did they start off with?

I'm sorry.

Mr. Klekner: Our clients are innocent.

[Laughter]

Unidentified Justice: The businesses regulated here did not offer both.

Which did they offer when the ordinance was initially passed?

Mr. Klekner: I'm sorry, I did not hear the question entirely, sir.

Unidentified Justice: When the ordinance was initially passed, which of the two types of business did they offer?

Mr. Klekner: Well, these businesses started in the late eighties, early 1990's, either as a bookstore or as an adult arcade.

Unidentified Justice: That's what I'm asking, which... which?

Mr. Klekner: But it was well after the adoption of the ordinance.

Unidentified Justice: Which did they start as, a bookstore, or as an arcade?

Mr. Klekner: My recollection is that each... I think it was Highland Books started as a adult arcade, and the reverse was true for Alameda Books.

It started as a bookstore.

Unidentified Justice: Did your evidence in '78 or any evidence since then specifically address the question of whether the combination of more than one form of business at one location has any measurable effect on, you know, the deleterious effect that you measured?

Mr. Klekner: No.

The studies did not specifically look at combination of adult businesses in one place, or in one building.

They looked at the clustering effect in the city's various communities.

Unidentified Justice: Am I wrong in thinking that the study which you rely on, the 1977 study, did have as one category bookstore/arcade.

It had as discrete entities the massage parlors, the adult theaters, and the adult motels, but it was my understanding that the arcade plus bookstore, or video sales shops, that those were together in that 1977 study.

Mr. Klekner: The answer is yes and no.

That phrase appears several times in the study and in certain conclusions, but if you look at the... at certain of the questionnaires that were sent out to various businesses, community groups, the individual businesses were separately identified.

In other words, a bookstore, peep shows, movie theaters, theaters, massage parlors.

Unidentified Justice: Well then, is there nothing to what we're told, that the... this combination of video sales plus viewing is common and, indeed, an arcade can't survive as a stand-alone business, that the combination of, you can see it, and if you want it you can buy it, was common?

Mr. Klekner: Well, the issue of separateness, and whether a business, an arcade and a bookstore can, could, or should survive separately is off the table.

It was not part... there was a stipulation that the... that that would not be considered.

That's not before the Court.

As the record now stands, I guess the Court would have to presume, as did the trial court and the court of appeals, that survivability, economic viability of separate businesses or combined isn't an issue for this Court'--

Unidentified Justice: Well, each of these businesses was one or the other of those things and operated on that basis alone for how long?

Mr. Klekner: --Several years.

I can't--

Unidentified Justice: Do you know whether they operated at a profit or at a loss?

Mr. Klekner: --We never did any discovery on that, so the answer is, we have no way of knowing.

Unidentified Justice: But they did it for a couple of years, anyway?

Mr. Klekner: Correct.

Unidentified Justice: They were only an arcade and there was no selling going on when they were initially launched?

Mr. Klekner: It's my understanding that they might have sell... excuse me, sold some books, or what-have-you, but their primary business was having a series of video booths where you could watch adult movies.

Unidentified Justice: I get the opposite impression.

Maybe I was misled by the briefs.

I thought they had always operated as a combined business.

You say that's wrong?

Mr. Klekner: Not based upon the facts as I understand them, sir.

Unidentified Justice: Pardon?

Mr. Klekner: Not based upon the facts as I understand them, that... and I believe in 1991 it was Alameda Books that became both, and it was I think 1992 that Highland Books became both.

I might be off by a year or so, but there was a point in time where both... where each location became both adult business activities.

Unidentified Justice: I'd like to ask you... I'll assume with you for the moment you don't need any evidence.

I suppose you don't imagine... forget the evidence question.

All right, I take it that this ordinance... and I'm also assuming it, assuming this, you could have a particular place, 5,000 feet of books, or you could have 5,000 cubic feet of books, or you could have 5,000 cubic feet of arcade, but you couldn't have 5,000 cubic feet of both, all right.

Now, my question is, what's the theory behind that?

Mr. Klekner: The theory is the solution, not the facts.

If you go from jurisdiction to jurisdiction, the facts tend to support the same conclusion, that concentrations of adult businesses cause secondary effects.

How do you solve that problem?

And the city's decision was, because of the clustering effect, we termed it like a farmer's market type of effect for adult businesses, that dispersal was the solution.

Square footage, you could have 5,000 square feet of this, or maximum, is a different solution, based upon, New York did that in their solution.

They decided that the space limitation, square foot limitation was appropriate for New York.

That was not part of the solution for Los Angeles.

It was a complete dispersal of--

Unidentified Justice: All right.

Now, if, in fact, there is no space limitation, I would repeat my question, that it seems a fortiori if you can have a bookstore of gigantic size, or an arcade of gigantic size, but you can't have the two together, even of a little size, so I don't... I'm not talking about evidence.

I'm assuming, though, you have to have some theory, and the theory has to be a reasonable one, and it can't just be we want to censor everything, so what's the theory?

Mr. Klekner: --The theory is simply the solution adopted by the city of Los Angeles was to disperse.

If, in fact, we were faced with the megastore concept that, you know, the Wal Mart of adult bookstores, then that would be a different problem, that we could address in the future, at least as I understand this Court's precedent, but that's what we were faced with in 1977.

We were faced with the need to protect the city's neighborhoods from a lot of smaller businesses, if you will, and the solution was, we'll trade size, if you will, for dispersal.

New York, for example, said 500--

Unidentified Justice: But it still doesn't answer the question, exactly.

If the city wanted to address the concentration of adult businesses, certainly the 1977 study likewise addressed that, didn't it?

Mr. Klekner: --Correct.

Unidentified Justice: But now we're talking about an ordinance that doesn't focus on the concentration of adult businesses but, rather, the combination, because the city doesn't want the business to break into two parts, even though it tried to operate as one business, and I guess the 1977 study didn't address the combination, the effects of a combination of focuses in a single business, whereas your ordinance does.

Mr. Klekner: Well--

Unidentified Justice: As opposed to a concentration of businesses.

Mr. Klekner: --There are several responses to the question.

The first is that, as you... as I understand how you use the term, business, you're talking about a corporate organization or a single proprietorship.

That is not what the city's ordinance deals with.

Unidentified Justice: --operated as a single store, a single business.

Mr. Klekner: From the city's perspective, it is illogical, or not reasonable to say, for the city council to say, you know we have a problem here, on LaSeneca Boulevard, because we have two many adult businesses together, so we're going to require them to disperse.

There is no issue as to how we define these adult businesses.

That's not before the Court.

Unidentified Justice: Well, what if the ban were, you can sell adult VHS tapes but not Beta tapes in the same store?

Mr. Klekner: We haven't done that, and--

Unidentified Justice: Well, it's the same thing.

Can you break it down any way you want and say, it's fine because we're concerned about the--

Mr. Klekner: --Because we are concerned with the overall effect we have broken down the ordinance to its local components.

We have not tried to somehow slice and dice definitions so that you have several different types of retail adult establishments.

Unidentified Justice: --Do all of the categories that you have in the ordinance exist in the real world out there, video arcades only?

Mr. Klekner: Yes.

They did in 1977.

They did in 1991.

Unidentified Justice: Adult bookstores only--

Mr. Klekner: Correct.

Unidentified Justice: --without arcades in them--

Mr. Klekner: Correct.

Unidentified Justice: --and so forth, every one of the categories, adult movies only?

Mr. Klekner: Correct.

Each of these definitions, if you will--

Unidentified Justice: When you started out, though, there weren't all that many tapes.

There were books, adult bookstores.

Now, isn't the video much more prevalent today--

Mr. Klekner: --Actually, it's my under--

Unidentified Justice: --and you seem to say that the combination of this list, you think of a bookstore, nowadays one can browse, one can even go to a cafe and have coffee, and all that, or go to a record shop and listen to the tape and then buy it.

That combination of, I view it and then buy it or not, that seems to be a natural combination, unlike having half of my establishment a massage parlor and the other half a book shop.

Mr. Klekner: --The problem with your real-world description of a Barnes and Noble is, it doesn't exist in the adult entertainment world.

The evidence that was before the trial court was that the books, the magazines, the sex toys, the novelties, are all shrink-wrapped.

You cannot go into an adult bookstore, sit down and have your Starbucks, and browse through the material.

Unidentified Justice: And you don't prevent them... you don't prevent these stores from allowing customers to preview the films before they decide whether to buy them, the stores that sell adult films.

The ordinance doesn't prevent them from allowing customers, at no charge, to view the films before they buy them, does it?

Mr. Klekner: If I understand the correct... the question correctly, no.

Unidentified Justice: Under the ordinance, can a customer come in and say, before I buy this film, I would like to see it, and the store manager says sure, go ahead, look at it first, then you can decide whether to buy it?

Mr. Klekner: For free?

Unidentified Justice: For free.

Mr. Klekner: Yes.

Unidentified Justice: The ordinance permits that anyway, doesn't it?

Mr. Klekner: We are talking about--

Unidentified Justice: But they want to charge for it.

Mr. Klekner: --And the machines that allow you to view up to 60 clips, if you will, from various adult movies, or you go to another machine in another booth, you can... I want to see that entire movie right there, as opposed to the clips.

Unidentified Justice: What is your principal argument in opposition to the rationale in the court of appeals?

I have the feeling we're not letting you make the principal argument here that you wanted to make.

Mr. Klekner: The principal problem with the court of appeals decision is, of course, how it requires... what it requires, the use of secondary effects and how it is discounts, if you will, or disregards this Court's precedent, is effectively what the court of appeals has said.

Not only must we have empirical evidence of secondary effects in general, which the city does have, but you must also show that in this particular case this combination contributes to that secondary effects, which I submit is going to be, on an empirical basis, next to impossible to do.

The third--

Unidentified Justice: If it's next to impossible to do, why should you be allowed, under the First Amendment, to do it?

I mean, it sounds as though you're kind of making an argument from spectral evidence here.

You're saying, well, the evidence that we've got doesn't demonstrate the problem that we're addressing, but we ought to be able to address it anyway.

I mean, isn't that what it boils down to?

Mr. Klekner: --The problem we were addressing was, is there a correlation, to use the term you used, the word you used in Barnes--

Unidentified Justice: Yes.

Mr. Klekner: --between the adult businesses and secondary effects, do they cause a problem.

We have documented that.

Unidentified Justice: And you've documented it, but as I understand it, you've documented it with reference to adult businesses which were not at the time defined or identified as necessarily being businesses that offered only one service, as opposed to a business like these, that offers two, so that the evidence, as I understand it, did not address the issues that is before us now.

Mr. Klekner: But it did address that issue, because it is not reasonable to assume that if you have two businesses side by side in the same block, causing secondary effects, that it can require them to disperse, which is entirely--

Unidentified Justice: Yes, but we're... I think we're playing with words.

You're talking about two businesses side by side, and you were measuring the effects back in '78 of businesses side-by-side.

This is one business.

It's not side-by-side.

It's one business that sells two things within the same storefront.

Mr. Klekner: --But there's no evidence one way or the other--

Unidentified Justice: Isn't that your problem?

Mr. Klekner: --I don't believe it is... it should be a problem.

Unidentified Justice: You measured... you measured the effect of a video store... what do you call these, arcade store, and a bookstore side-by-side, and you found that that was deleterious, and the problem is that you did not measure what the different effect would be if you knocked down the wall between them.

Is there any reason to believe that that would make a difference?

Mr. Klekner: That's the whole point that the city's been trying to make all along.

There's no difference in effect.

You can't assume--

Unidentified Justice: Well, you don't know--

Mr. Klekner: --less or more.

Unidentified Justice: --How do you know that, any more than I know it?

I mean, I see your point when you say, look, if there are two different entrepreneurs on a block, each of them doing whatever they can to draw in clientele, the odds are they're probably going to draw in a greater concentration of people than one.

I mean, I will accept that, as at least intuitive.

Here, we're talking about one entrepreneur, and what seems at least intuitively arguable in the first place doesn't seem to be so obvious in the second instance.

Mr. Klekner: But you are describing this in terms of business organization.

Unidentified Justice: Yes.

Mr. Klekner: Which is not how the city's zoning ordinance works.

The zoning ordinance does not really care whether you're an L.L.P., a corporation on-shore or off-shore, or a sole proprietorship.

Under the reasoning that you're putting forward, I could open up at a location just because I have one company, as many adult businesses as I wish, or alternately, in order to get around the city's ordinance, the two side-by-side companies, businesses form a new corporation, they merge, now we have one corporate entity, ergo, we're home free.

That's not--

Unidentified Justice: And the... but the likelihood that your 1978 evidence is going to bear on these various possibilities depends on more specific facts.

If the two side-by-side entities that merge are, on the one hand, a massage parlor and a bookstore, it seems sensible to say they're going to be drawing the same concentrations of people that they would have as separate entities.

But when you're talking about combinations like books and video, it isn't obvious that you're going to be drawing different concentrations of people, and I think what we're stuck with here is that your evidence, through no fault of Los Angeles in '78, but your evidence just doesn't address the question as specifically as we have it before us now.

Mr. Klekner: --If you look at the nature of the businesses, you come to an arcade to stay there and look, and when you leave that arcade, you have a different frame of mind than if you went to the bookstore, got your shrink-wrapped magazine, put it in a brown paper bag, and went home, so that's one logical deduction you can make from all of the evidence that's before you.

Unidentified Justice: Isn't it an equally logical deduction that by looking at the cover of the shrink-wrapped magazine and watching part of a video clip, or a video clip of something that you ultimately buy, you're going to be left in about the same frame of mind in either case?

Mr. Klekner: No.

I think after watching 60 clips from adult business, from adult videos, as opposed to the cover of a shrink-wrapped magazine... the only reason--

Unidentified Justice: Aren't the... maybe the magazine covers are dull, but I--

[Laughter]

--assumed they were pretty racy, and if you look at 60 covers and 60 clip... I don't know, that's cutting it pretty fine.

Mr. Klekner: --Justice Souter, they're not live action.

Unidentified Justice: Mr. Klekner--

Mr. Klekner: That's the difference.

Unidentified Justice: --Mr. Klekner, your question presented seems to be quite narrow.

It says, is a city zoning ordinance which prohibits the operation of more than one adult entertainment business at a single location, including an adult bookstore and an adult arcade, invalid because the city did not study the negative effects of such combination?

Mr. Klekner: Correct.

Unidentified Justice: It seems to assume the city did not study the combination but, rather, relied on judicially approved statutory precedent from other jurisdictions.

I assume that's some reference to the Hart case from the Carolinas.

Mr. Klekner: Correct, North Carolina.

Unidentified Justice: Because the Ninth Circuit said that wasn't suitable reliance, is that right?

Mr. Klekner: Well, basically what the--

Unidentified Justice: The Ninth Circuit, I thought, thought that wouldn't do it because Hart addressed the health effects--

Mr. Klekner: --No, what the Ninth--

Unidentified Justice: --of the arcades, rather than the effects on crime.

Mr. Klekner: --What the Ninth Circuit effectively said was, there was some doubt whether Hart would survive scrutiny under this Court's Renton decision, but we are certainly confident that under Ninth Circuit precedent it's not a valid law.

The purpose of Hart--

Unidentified Justice: I don't know, it just struck me in reading the question that it was pretty much limited to whether they were right about whether you could rely on the Hart decision.

Mr. Klekner: --Hopefully not.

The city in 1983 specifically relied on its findings in 1977, the study that led up to the original ordinance, which as I said is not at issue.

That ordinance is reasonably... comparatively reasonable, according to plaintiffs.

The problem is... well, the issue with Hart is, Hart was decided in 1979.

It said that the city's '77 study, just as we--

Unidentified Justice: Before the adoption of this amendment?

Mr. Klekner: --That's correct, that in 1979, our study supported a North Carolina statute prohibiting more than one adult business in the location, that that was a sufficient evidentiary basis.

Confirming what the city council thought--

Unidentified Justice: The Ninth Circuit thought that Hart relied on the negative health effects of the arcade.

Mr. Klekner: --We are less... we, the city, is less concerned with the factual differences than with the legal reasoning and the fact that it fully supports, and should have been considered for that purpose by the Ninth Circuit, as validating the intent and purpose of the original ordinance and '83's amendment.

Unidentified Justice: Well, what we're getting down to is just how precise a particular study or a particular decision has to be.

I mean, does it have to be word for word what the city is talking about, or can the city draw reasonable inferences, if it affects A, it also affects B?

Mr. Klekner: That's what hopefully the... well, that's what the city has been trying to do, but again, it goes back to, you know, if you look at your precedents, when a city has these problems, the logical... the logical thing for the city to do is say, ban them.

We can't.

It's a violation of the Constitution.

We accept that.

That's what Renton says.

If you can't ban them, you should be entitled to a reasonable opportunity to experiment.

Unidentified Justice: And where I'm a little confused is, at the beginning of this segment of the argument, when we began focusing on this question, I thought you said something to the effect that we can't show this empirically, and I was surprised.

I thought you would say, look, this isn't rocket science.

If you have just a shoe store, and the shoe store all of a sudden starts to sell clothes, you're going to get more people.

That's the end of it.

Mr. Klekner: But--

Unidentified Justice: I thought that's what you were going to tell, but you--

Mr. Klekner: --When you... well, maybe I misspoke, but when you want to get into the empirical evidence of, are you a bad actor, this particular business is a bad actor, it's a very detailed nuisance type of analysis, and when you have these combinations of adult businesses, or side-by-side adult businesses, and you try to do that same analysis, the immediate thing that is going to occur, the first thing that is going to occur, it's not me, it's my neighbor, it's not me, it's this other part of the business.

We can't be expected to provide for a legislative scheme that detailed particularization of each possible permutation and combination of the problem.

That's exactly what Young and Renton stand for.

Unidentified Justice: --Let me ask you--

--Why doesn't--

--Go ahead.

No, please.

Let me ask you just one general question.

We often have said, the cities can rely on general experience of other cities and other studies, and so forth and so on.

Are there a lot of ordinances out there that follow the pattern of this particular ordinance, that would prohibit a single business from operating both a video arcade and a bookstore in the same location?

Mr. Klekner: There are some, Justice Stevens.

There are others that would permit such combinations, depending upon how the city that's... a particular jurisdiction analyzed the solution.

Unidentified Justice: But there are a substantial number who are similar to the one that we're talking about today?

Mr. Klekner: I won't use an adverb to describe the amount.

There are some.

I don't know if it's substantial or not.

Unidentified Justice: That's an adjective.

Mr. Klekner: Excuse me, yes.

Unidentified Justice: May I go back to Justice O'Connor's question, because she asked how the Hart facts could help you.

As I understand it, the facts in that... number 1, the basis for municipal action in that case was public health, and it was public health based on the sexual activities that were going on inside the booths, and as I understand it, Los Angeles in effect has an ordinance that requires open booths, lights on, freely seen... the booths can be freely seen from the front of the store, and so on, so it seems to me that Los Angeles has taken steps to preclude the health problem that that earlier case addressed and, if that's so, how could that earlier case support the Los Angeles ordinance?

Mr. Klekner: Well, again, the Hart reading of facts in that decision, again go to the fact that these combinations cause problems, and that the city's ordinance... excuse me, the city's study supported the inference that it's okay to... the solution is to separate these businesses.

Unidentified Justice: Yes, but the Hart... as I under... maybe I'm wrong, but I thought the basis for the governmental action in Hart was public health based on the activity that was going on in these booths.

Mr. Klekner: In part, yes.

Unidentified Justice: Yes, so it seems to me that it's off point for you.

Mr. Klekner: If there are no further questions, I'd like to reserve the remainder of my time.

Thank you.

Unidentified Justice: Very well, Mr. Klekner.

Mr. Weston, we'll hear from you.

ORAL ARGUMENT OF JOHN H. WESTON ON BEHALF OF THE RESPONDENTS

Mr. Weston: Mr. Chief Justice, may it please the Court:

At the time we filed our briefs, we knew of no ordinances similar to Los Angeles prohibiting the simultaneous inclusion of an arcade and retail sales within one establishment, other than the one that was in Hart v. Edmisten.

At the time the city adopted it, it itself... let me rephrase that.

At the time the city adopted it, the only one that apparently existed in the United States was the one in North Carolina and, subsequent to the city's adoption, as far as we knew, there were no additional ones throughout the United States.

This is an enormously unique and unusual approach to a problem apparently not supported or shared by the experiences of other cities.

Unidentified Justice: Do you know of any other cities that had the experience of businesses such as the two involved here, which were originally involved in one sex pandering activity, and then, after the ordinance was passed, went into a second one instead of opening up a separate store?

Mr. Weston: Justice Scalia, you'll--

Unidentified Justice: I mean, you know--

Mr. Weston: --You'll--

Unidentified Justice: --they may be unique, but the situation that they confronted may be unique as well.

Mr. Weston: --You'll pardon me for not adopting the reference of the Court in phrasing the nature of the business, but in fact the opposite is quite true.

Respondent's businesses at all times, as is made clear in the joint appendix at pages 19 and 20, as discussed at great length at page 6 of respondent's brief, particularly in footnote 6, at all times operated their arcades in addition to retail distribution, retail dissemination on the premises, in the same establishment of sexually oriented materials.

Unidentified Justice: That's not how I read those pages.

Shall we turn to them, page 20 of the appendix?

Mr. Weston: Please.

Unidentified Justice: Highland Book was issued a picture arcade police permit.

Prior to June of 1991 the only adult type of business use of Highland Books was its picture arcade, which at all times exhibited exclusively adult video tapes.

Mr. Weston: Right.

Unidentified Justice: This is the affidavit of the owner of both of these businesses.

Mr. Weston: That's correct.

Unidentified Justice: Mr. Wiener, right?

Mr. Weston: Yes, that's correct, Justice Scalia, but the point, the use of the term, adult business, was in the way that Los Angeles defined a use, and that if the Court will continue a little bit further--

Unidentified Justice: But that's the only thing that's relevant here.

Mr. Weston: --No, with all respect, Your Honor.

Up until sometime in 1989... well, let me phrase it this way.

For a considerable period of time in California, law existed such that the term, substantial numbers of retail materials... that was the operative term which separated a... an adult bookstore from a nonbookstore.

In other words, if one... one could operate the bookstore and carry a certain amount of adult material and not be denominated adult.

Unidentified Justice: Was he considered really another business?

Mr. Weston: That's correct.

Unidentified Justice: It was ancillary to the other business?

Mr. Weston: That's correct.

Unidentified Justice: Right.

Mr. Weston: Up until a very recent time in Los Angeles history, one could carry up to 49 percent of materials in one store and not be deemed to be an adult bookstore.

Unidentified Justice: This was a Los Angeles County ordinance--

Mr. Weston: No--

Unidentified Justice: --you're referring to now?

Mr. Weston: --No, what I'm referring to is California court decisions which had interpreted the phrase, substantial number, amount of retail stock in trade.

Unidentified Justice: In the county ordinance?

We're not talking about a State law, we're talking about a county ordinance?

Mr. Weston: It wasn't a law, Your Honor.

In other words, the California courts of appeal had construed the term, substantial portion of the stock in trade, to mean anything less--

Unidentified Justice: Why did they... why were they... why did they construe that term?

Where did the term come from?

Mr. Weston: --The term came... was an identical terminology utilized in many, many, ordinances throughout the State of California.

There was a vagueness challenge brought to it, and the court construed the term to mean a preponderance, more than 50 percent of stock in trade in order to avoid the vagueness.

That--

Unidentified Justice: This was a phrase used in a number of different city and county ordinances--

Mr. Weston: --Absolutely, Your Honor.

Unidentified Justice: --in California?

Mr. Weston: Absolutely, and in fact it's interesting to note, because we've spoken about Hart this morning, that the North Carolina statute in Hart was one that pegged the definition of a retail bookstore as a preponderance.

In other words, unless the store carried 51 percent of its stock in trade as adult materials in Hart itself, it would not qualify as an adult bookstore, and--

Unidentified Justice: And that's what you think Mr. Wiener meant when he said in his affidavit, prior to June of 1991 the only adult type of business, the only adult type of business use at Highland Books was its picture arcade which at all times exhibited exclusively adult videotapes?

Mr. Weston: --Yes, Your Honor.

Unidentified Justice: And you think he had in mind that no more than 49 percent of other business was--

Mr. Weston: If I may read--

Unidentified Justice: --That's what the next sentence says.

Mr. Weston: --Yes.

Thank you, Justice Stevens.

The next sentence, Justice Scalia, prior to June of 1991, the majority of items available for retail sale at Highland Books were of a nonadult variety.

Unidentified Justice: That's why the only adult business he was doing there was the other one.

They were of a nonadult variety.

Mr. Weston: But that's--

Unidentified Justice: He's not saying we were selling adult books, but selling less than 50 percent of adult books.

He said the only other business we had was a nonadult business.

Mr. Weston: --Justice Scalia, forgive me, I can only tell you what the circumstances were.

The phraseology that was utilized tried to use the terminology, the confusing terminology that Los Angeles used in terms of its description of what a use is, and Mr. Wiener at the time sold and displayed vast quantities of sexually oriented retail materials in the same stores, but under the L.A. ordinance at the time, it did not constitute an adult use.

Unidentified Justice: Well, I appreciate your testimony to that effect, but what his affidavit clearly says is that the only adult business he did prior to 1991 was the exhibition of adult videotapes.

The majority of the items available for retail sale were of a nonadult variety.

Mr. Weston: Forgive me, Justice Scalia, I don't want to belabor the point--

Unidentified Justice: Okay.

Mr. Weston: --but that's not a fair reading of it.

Prior to June of 1991, the only adult type of business use, the type of business use at Highland Books was its picture arcade.

That is defined exclusively, that term refers exclusively to 1270 of the Los Angeles zoning ordinance which defined a use and labeled a use a business, and the only way that one became an adult business and therefore a separate use was if one's stock in trade was 51 percent or more adult.

Mr. Wiener's was not.

It was substantial, but it was not a preponderance, and therefore the notion that this existed as an arcade bereft of and separate from any retail use is simply neither accurate factually nor supported by the declaration that was offered.

Unidentified Justice: I don't understand what this 51-49 pertains to.

Does it pertain--

Mr. Weston: Stock in trade of the retail establishment.

Unidentified Justice: --Well, and it means that if 49... if less than 51 percent is adult material, you're not--

Mr. Weston: It's not... at the time, in Los Angeles, it was not characterized as an adult use--

Unidentified Justice: --As an adult business.

Mr. Weston: --Adult use or business, that's correct.

Unidentified Justice: Right, okay, but it doesn't mean that if you have 51 percent in one adult business and 49 percent in another adult business, the 49 percent is not an adult business?

Does it mean that as well?

Mr. Weston: That is correct.

The 49 percent of adult retail material did... acted to... let me... if I may phrase it the other way.

51 percent of stock in trade at a business in Los Angeles, if it was adult, made that store adult, even if it was 20,000 total items, and virtually, and nearly 10,000 of them had nothing to do with sexually oriented material.

Unidentified Justice: Mr. Weston, I understand that that division, that that was by inventory not by sales.

Mr. Weston: That's correct, Justice Ginsburg.

Unidentified Justice: Because one of the problems was, you had lots of books, dull books that nobody was going to buy, and that you had... that was what you had for 51 percent, and then you had the stuff that people bought, and that was the 49 percent.

Mr. Weston: The record does not reflect that, Justice Ginsburg.

That may have been the fact although, of course, the opposite may have also been true.

Unidentified Justice: But it's true that it would not have been considered an adult bookstore so long as they maintained that 51-49.

Mr. Weston: That's correct, and if I may, as in Hart, Mr. Wiener's initial businesses, as they were initially constituted, did not conflict with the multiple use provision, notwithstanding the fact that 100 percent of the videotapes viewed in them were adult, and 49 percent or up to 49 percent of the retail items available for sale were also adult.

Unidentified Justice: But can I--

Mr. Weston: That did not constitute two adult uses under California law at that time, and that is exactly what the law was in Hart, that it was perfectly permissible to have 100 percent adult arcade material, and 49 percent retail books, videos and so forth, and that would not have conflicted with the prohibition in Hart.

Unidentified Justice: --Could you... can you explain... I'm just trying to get back to the main point here, at least as I understand it, which may--

Mr. Weston: Yes, Justice Breyer.

Unidentified Justice: --And don't assume I know a lot of the detail that you know.

I want to start this naively, so I take it what they're saying is, look, we have a zoning ordinance.

We have to have some way of defining what's a single business.

If it were a liquor ordinance and we said, selling liquor wholesale is one thing, selling it at a bar is another, so that's two uses, not one.

If it were a meat store which said, over-the-counter is one thing, at the restaurant is another... of course we could do it a million ways.

Mr. Weston: Certainly.

Unidentified Justice: But we have to do it some way, and so forget whether there's evidence or not.

Just let us do what's reasonable here, and this is one, and by the way, if it were a different kind of ordinance, if it were a cubic foot limitation, the fact that they counted it as two separate things rather than one, would cut in your favor, but here it happens to cut against you.

Mr. Weston: Well--

Unidentified Justice: But they say, either way, we're just trying to have a reasonable definition.

All right, now your response is what?

Mr. Weston: --Well, initially.

I think Your Honor... Justice Breyer, you have characterized fairly in some sense the city's position, because the city basically says, so logistically, if it's an adult business it generates secondary effects, and if there is secondary effects and there is adult business regulation not amounting to a ban, we can do anything we want, and courts are directed not to look meaningfully at it, and it simply gets dealt with as a valid ordinance.

But the problem with what Los Angeles has done is that, unlike what would be logical, or unlike what most zoning agencies do, which is to take a combined business such as Your Honor posits and zone it according to the most intense of the combined uses, Los Angeles, for example, makes reference to the fact that it deals with service stations and auto repair places differently, but the remedy that Los Angeles selects for that is not to say, an auto repair place must be here, and 1,000 feet away there must be a place where you... I've said it poorly, but that you cannot have an auto repair place here, combined with a place that pumps gas, even though there are separate uses.

What Los Angeles logically does, as every city does, is permit the combination and then zone the combination use according to the most intense of the combined uses.

Unidentified Justice: No, but that's a bad analogy, because auto places are not... try liquor.

Try thinking of it liquor, and probably they could.

They'd say, we only want one liquor license in 1,000 feet, and if you have a bar you don't have a shop, and it then becomes less obviously unreasonable on its face.

Mr. Weston: Let's take a--

Unidentified Justice: So let's assume it in their favor that way, and then argue against it.

Mr. Weston: --Sure.

Let's take a look at that one.

But what does Los Angeles do?

It doesn't ban the combined use, it simply again... I don't mean Los Angeles.

In your hypothetical, in the bar-restaurant, the zoning regulation would be appropriate for the more intense use, I assume--

Unidentified Justice: But this whole question is something that's secondary.

I thought the question before me is whether or not Los Angeles is reasonable in saying that the combined use draws more people without having a study.

I fully understand that you have an objection to the Government bifurcating your business.

Leave that off the table, so the only question is whether or not this whole business draws more people, and whether or not there's an empirical basis for it.

Isn't that what I'm supposed to decide here?

Mr. Weston: --I'm not quite sure about drawing more people.

I don't think that that was what the... that was not the focus of what Los Angeles was concerned--

Unidentified Justice: You mean, you had the arcade because it didn't draw any more people?

Mr. Weston: --No, it wasn't more people, it was the notion for a variety of reasons, and if we return to Young v. American Mini Theatres, there is at least... there's some indication in Young that it's not simply a question of people, but rather, what is the perception from the outside world?

Unidentified Justice: Well, but not simply a question of people, but surely the kind of secondary effects that have been spoken of in cases depend upon people's activities, and the people aren't 10 miles away, they're somehow associated with the business.

Mr. Weston: Certainly.

I... that's unquestionably reasonable, Mr. Chief Justice, but the articulation by Los Angeles in its statement of legislative purpose, which appears at... it's at page 74 of the appendix to the petition for certiorari, and I'm truncating it, but two or more adult entertainment businesses, operated as a single commercial enterprise.

This concentration of adult entertainment businesses tends to have an adverse impact on the neighborhood in which they are located.

The hypothesis, the asserted harm, was from a combination of adult businesses, and what was the evidence on which Los Angeles relied for this proposition?

The sole evidence was a study that measured not, as has been brought out earlier, whether there were harms unique, there were special harms that developed from a combination of two businesses within a single unitary establishment, but rather, whether there were secondary effects that resulted from the clustering of a dozen, or 15 or 20 unrelated adult businesses.

Unidentified Justice: At some point, Mr. Weston, don't you think the legislature is entitled to draw what might be common sense inferences from the studies that it made, and that it doesn't have to have empirical evidence for every single thing that it does in the ordinance?

Mr. Weston: Of course not, Your Honor, and for example, if the city, as it suggests, which we do not agree with, really thought... I don't mean to cast aspersions on the city.

If, in fact, the city's sense that this adult bookstore-arcade combination was so unique and so unusual, even though there's no evidence in the record of an arcade standing alone anywhere int he United States, except as part of an adult bookstore, but if it was so unique that they really hadn't dealt with it, one could understand that it would be appropriate, as the city has, to accord zoning treatment to this combined use, which is exactly what was done here.

The combined use is not free from the zoning requirements of the City of Los Angeles.

This combined use is 1,000 feet away from any other adult use.

It's 500 feet from any of the protected sensitive areas, and it is within the limited commercial zones which the city says it has to be.

Unidentified Justice: Mr. Weston, incidentally on the other point, I reviewed your footnote.

I tend to read footnotes quickly.

You were right on our other point.

Mr. Weston: Thank you, Justice Scalia.

Unidentified Justice: On--

Mr. Weston: I'm going to go home now.

[Laughter]

I thank the Court for its courtesy.

[Laughter]

This is a memorable day for me.

Unidentified Justice: --It seems to me that if you're objecting to the municipality's use of this other study, which didn't treat combined stores, you... it seems to me you have to tell us why it would be likely that combining the diverse businesses under one roof could make any difference.

I mean, you have situation 1.

You have a whole block full of adult businesses, a video store, a movie house, a bookstore, blah, blah, blah, okay, the whole block full.

Situation 2, you have the same block.

They're just not different stores.

It's just one big... you know, it's just Adult, Inc., and on one side there's the, you know, the arcade, and then the next part of the store there's the movie house, and so forth.

Why in the world would there be any difference in the two situations as far as its impact upon the community is concerned?

Mr. Weston: There are a number of responses to that, and they require a bit of articulation.

They're a little bit different, and as I was starting to say before in terms of Young v. American Mini Theatres, the sole evidence, essentially, in Young v. American Mini Theatres was an affidavit submitted by a man by the name of Mel Ravitz.

In that case, one of the things that Ravitz stressed... and this was, of course, the first concentration zoning, the first case that upheld discriminatory zoning in a sense of motion picture theaters according to the nature of the content of the materials exhibited there, and the basis was, of course, that the reason for the legislation was not because of the materials but, rather, because of some unique secondary effects associated with them, and this was a very unusual ordinance.

It was an anti-Skid Row ordinance originally to which Detroit, long after the original ordinance had been adopted, added adult businesses, and Ravitz' point was this, that there's a self-fulfilling prophecy that develops in a neighborhood when residents or prospective new residents or business people or whatever come into a neighborhood and they see lots and lots and lots of different storefronts, let's say soup kitchen, a rescue mission, pawn shops, adult bookstore, Sam's Adult Arcade, or even your excellent idea, the adult emporium--

[Laughter]

--and as a result, this then becomes a self-fulfilling prophecy of the imminent decline of a neighborhood.

So from the Young perspective, from the sense of declining property values, it becomes very different from having the eight or nine adult businesses to which Your Honor referred to close proximity in one block, or two blocks, which all of a sudden says tenderloin, or red light district, or whatever, as opposed to one single storefront that says, Highland Books, and which does not cause the visual--

Unidentified Justice: But it doesn't have to say that.

I mean, they're entitled to, you know, to divide the storefront into each of its components and have a sign on one that says, you know, adult videos, and then in the next bay have a sign that says, movies, and then the next bay, adult books, and so forth.

Mr. Weston: --But that's no different--

Unidentified Justice: I don't see any difference between--

Mr. Weston: --But that's no different, Justice Scalia, from a single 7-11 store that says, bananas for sale, 99 cents today, rutabagas a dollar and a half, and Coca-Colas on sale here.

It's--

Unidentified Justice: --Mr. Weston, in that respect, would you be making the same argument that you are now making for tapes plus arcade, sales of tapes plus arcade, if the combined uses were a massage parlor and an adult hotel?

Mr. Weston: --That's a very fair and good question, and I've been thinking about that one for a long, long time, and I think the easy answer to it is simply that with respect to the massage parlor there would be no First Amendment interest to protect, and therefore it wouldn't raise the question.

Now, that's a cute lawyer's answer.

It doesn't really help, I know, what you're, obviously what, Justice Ginsburg--

Unidentified Justice: Well, I guess you'd say the same thing about the adult motel.

Mr. Weston: --Absolutely, and--

Unidentified Justice: Although some people might consider that expression.

Mr. Weston: --Absolutely, and in fact I did say that in FW/PBS v. City of Dallas, when one of the three components was an adult motel, but interestingly... and I'll try to address the combination question, but interestingly, and this is one of the things that makes the L.A. study suspect to begin with, is that of the 88 adult uses that were focused on by the police department and the planning department in Hollywood, 41 of them... I beg your pardon.

Of the 9... of the 88 uses, 41 of them were either massage parlors or adult motels.

Unidentified Justice: Well, I don't think that question is fairly subsumed in the question presented.

I mean, I don't think there was any challenge below to the validity of the '77 study so far as it went.

Mr. Weston: No, you're exactly right, Mr. Chief Justice, there wasn't a challenge specifically to it, but as we--

Unidentified Justice: There wasn't a challenge specifically to it.

Are you suggesting there was some unspecific challenge to it?

Mr. Weston: --The specific challenge that was made was whether the study supported the city's stated purpose that combining a bookstore and an arcade in one establishment, in one physical structure, caused the kinds of problems, the only problems which the study evaluated and found and, in fact, in the city's own papers it makes clear, and we set this forth in page 2 of the respondent's appendix, we note to it, rather, in joint appendix 109, that on the contrary, the--

Unidentified Justice: Respondent's--

Mr. Weston: --I beg your pardon.

I've been confusing.

Unidentified Justice: --The red brief, in page 2?

Mr. Weston: Forgive me, Mr. Chief Justice.

I've misspoken.

At joint appendix, the beige document, page 109, there is language from the study that points out several respondents commented that the adverse effects, secondary effects, are related to the degree of concentration, and that one freestanding business may have no effect, and that's really what we're talking about.

Justice Ginsburg, with respect to your question, could there be some issues with respect to combined uses, our great fear in terms of the parsing argument that we have made is that if the city's novel and rather adventurous piece of legislation is upheld, that the next step, as inevitably as night follows the day, will be to parse these business into smaller and smaller kinds of subcomponents that--

Unidentified Justice: But you gave an answer that I didn't think was just a glib lawyer's answer.

You said books, tapes, those come under the First Amendment.

Mr. Weston: --Yes, Your Honor.

Unidentified Justice: Massages don't.

Mr. Weston: Right, and I--

Unidentified Justice: Yes, but what about combining a motion theater and a bookstore?

Mr. Weston: --I would... one would think that the same kind of analogy as we have offered here would be present, that with a motion picture theater and a bookstore there would appear to be no logical suggestion that the two of them would generate any greater secondary effects than the motion picture theater alone.

When we got into area--

Unidentified Justice: Well, look at it a little differently.

I understand your argument about arcades and bookstores being functionally connected, but with bookstores and motion pictures, I think the outburst argument has quite a lot of appeal.

If you had them separately owned and it would violate the ordinance, why should it not violate the ordinance if you combine them?

Mr. Weston: --Well, I'm not sure that the separate ownership is what constitutes the vice aimed at at the ordinance.

It's rather that by the city's unusual definitional situation of calling different media presentations or different uses different businesses, in the same sense like at a 7-11 the dairy section is a business and the--

Unidentified Justice: It seems to me if you have a 7-11 and an A&P next door, it's the same problem as if they're owned by the same owner.

I don't follow the argument when you get to motion pictures and bookstores.

It seems to me that those two businesses operated by separate owners would have precisely the same secondary effect as a single business operating both a motion picture and a bookstore.

Why am I wrong on that?

Mr. Weston: --I'm not aware of any data that would suggest that the combination would... the combination in, Justice Stevens, in your hypothetical that a theater and a bookstore together, I'm not aware of any data that would lead one to reasonably conclude that the combination of a retail use in a motion picture theater would generate more secondary effects than what I assume would be the more intense use, the motion picture theater operating alone.

Unidentified Justice: Well, you conceded a moment ago--

--That may be true... go ahead.

Go ahead.

You--

--That may be true if you interpreted secondary effects as just this look that the neighborhood has by having the businesses strung along the block, but secondary effects is also the number of people come who loiter, who drive around, who concentrate outside.

Then that is a secondary effect that it seems to me would be increased by the two uses.

Mr. Weston: I think that's fair, Justice Kennedy.

Certainly, if secondary effects is nothing more than patronage, then I'm not sure that I could argue, but that's not what the identified and hypothesized secondary effect is on the part... from the city, and in analyzing these ordinances, as I understand the Court's doctrine, one looks at the specific legislation and the asserted stated purpose, asserted statement of purpose, which in this case is whether the concentration of... I should say, the combination of adult businesses within a single unitary establishment causes the same kinds of secondary effects found by a clustering of 12 or 15 or 20 unrelated adult businesses in a very small area in terms of the neighborhood.

That was the city's hypothesized, hypothesis.

Unidentified Justice: Yes, but isn't one way to pose that question to pose it the way Justice Kennedy did?

The question is, does the particular combination increase the degree of clientele, because we know that the greater the clientele, the greater the crime rate is going to be, so there seems to me to be a factual basis for saying that the clientele is a kind of a surrogate measure for those very effects that the city can legitimately try to counteract.

Mr. Weston: With all respect, Justice Souter, I must question the hypothesis that it is the clientele that will cause the problems.

I would--

Unidentified Justice: The amount of clientele is associated with the problems.

It may be that that clientele is preyed upon by other people who come in, but the fact is, I think, that the study shows an association between the number of people concentration to come to these businesses and the secondary effects of crime, et cetera, that the city can do something to prevent.

Mr. Weston: --I--

Unidentified Justice: That's the hypothesis that I'm--

Mr. Weston: --I really don't think so in this instance, because if that were, in fact, the hypothesis of the city, surely, with all of the thought that they have given to this, there would have been an absolute size limitation or a square footage limitation that was part of the legislation to deal just with that problem, but they haven't.

As one of the questions before inquired, suppose it was a 50,000 square adult bookstore or an arcade or a cabaret.

Unidentified Justice: --Maybe they could do that.

You know, we have a one-step-at-a-time principle, that the State doesn't have to do everything it possibly could in order to validate what it has done.

Maybe it should prohibit any more than 250 arcades showing sex videos at one place.

It just hasn't done that yet.

It will get there when that becomes a problem, I assume.

Mr. Weston: And I suppose we'll be back here then having to address that.

Unidentified Justice: You seem to be arguing that we should decide this case on the assumption that the city's evidence, as it now exists, would not be a sustainable basis for an ordinance saying, you can't have two... you can't have 25 different adult uses in one arcade.

Do you want us to decide... are you saying that you're going to go for broke, that we've either got to sustain that proposition, or you lose?

Because I'm suggesting... I mean, my question was mean to suggest that there's a factual difference in degree.

It may be very intuitively obvious that if you put 20 of these uses in one business, you're going to bring in a lot of people, going to have a lot of problems.

It may not be intuitively obvious, and you may need some specific evidence simply by combining videos and books, it may not be intuitively obvious that that is going to create the problem, so I'm suggesting a difference of degree.

Do you reject that?

Mr. Weston: Not at all, Justice Souter.

Of course there may be--

Unidentified Justice: Thank you, Mr. Weston.

Mr. Klekner, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER

Mr. Klekner: Thank you.

In our reply brief we cite heavily... in our reply brief we cite from the appellee's brief in Young v. American Mini Theatres.

Footnote 7 to our brief quotes the purpose for clustering, which is to attract people.

Basically, you're attracting unattended males on a frolic on their own.

Mr. Wiener, in his, one of his declarations at joint appendix 230, why does he combine businesses?

To attract patrons.

Typically, unattended males on a frolic on their own.

There is no qualitative or quantitative difference in the effect.

Unidentified Justice: Well, if you combine buying, they get out of the store.

If you have only the arcade, they'll linger longer.

Mr. Klekner: Well, that's... they're... you cannot expect an ordinance to solve everything in--

Unidentified Justice: I'm just questioning whether there's going to be more of a problem if you have the stand-alone arcade, where to see the film to the bitter end you have to stay there, but you really like it, so you buy it, and you get out quicker.

Mr. Klekner: --Well, but that's an argument to getting rid of the arcades.

The purpose of these ordinances is to spread out--

Unidentified Justice: But you can't--

Mr. Klekner: --spread out the patronage, to make sure that you don't have this clustering, this magnet effect.

You know, if you want your sex toys and your videos and your books you go to Third and Alameda because that's where everybody goes.

You want to avoid that.

That's the whole purpose of this, so it makes no difference, inferentially, one way or the other if they're side by side or in the same building, and inferences in this Court's precedent doesn't require that we have conclusive evidence, empirical evidence.

Paris Adult Theaters, Nixon v. Shrink, case after case says you can rely on inferences, and if the issue is fairly debatable... this is a debatable issue, you draw... you give deference to the legislative judgment because you can draw different inferences from the same evidence.

That is what's been done here.

We are... thank you.

Chief Justice Rehnquist: Thank you, Mr. Klekner.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ashcroft v. American Civil Liberties Union - Oral Argument

Fri, 09 Jan 2009 14:50:24 +0000

Case:

Ashcroft v. American Civil Liberties Union

Media File:

00-1293_20011128-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 00-1293, John Ashcroft v. The American Civil Liberties Union.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, and may it please the Court:

All three branches of our National Government have repeatedly determined that pornography causes substantial, incalculable damage to our children, that assisting parents in protecting children from that damage is a compelling national interest, and that pornography is widely available and readily accessible to our children on the Internet.

The Child Online Protection Act is Congress' response to that urgent national problem.

It was drafted after testimony, hearings, and findings in direct response to explicit and detailed guidance in this Court's 1993 Reno v. ACLU decision explaining how to solve the problem of Internet pornography in a constitutional manner.

COPA directly responds to several of the Court's explicit suggestions in its 1997 Reno v. ACLU decision.

In the first place, Congress gave explicit, substantive meaning to the terms, harmful to minor, utilizing standards developed over several decades by this Court describing what would be prohibited in the terms used by this Court in the context of minors.

I will not get into the specifics of that, because those are before the Court, and the Court is quite familiar with them.

The Court also added, however, in response to this Court's explicit suggestion, the third prong of the so-called Ginsberg-Miller test, that the material taken as a whole would have to lack serious literary, artistic, political, or scientific value for minors, an objective standard developed by this Court to protect the producers of communications.

Congress limited the statute to commercial pornographers at this Court's suggestion, those whose trade or business, in an effort to produce profits, are engaged regularly in the production of explicit sexual material for profit.

Unidentified Justice: In your view, is the provision that it has to be objectionable to minors, is that a national standard?

Mr. Olson: Well, as... the reference to community standards in the statute is in the first and second and prongs of a three-part test.

This Court has introduced that community standard provision to protect the communicator from individualized determinations by jurors, and from particularly sensitive, or particularly insensitive communities.

The Court has explained again and again that it is an average standard.

It is an adult approach to what might be prohibited from the standpoint of damage to minors.

The Court has repeatedly said that it might be... it doesn't refer to any specific geographic limitation.

In fact, in the Hamling case and in the Jenkins case decided by this Court several years ago, the Court made it clear that the community standards prong does not have to apply to any specific community.

Unidentified Justice: But Mr. Olson, isn't the problem with that argument that the definition also refers to the average person, so it's working average in by a separate provision.

If that is where the average comes in, then doesn't the reference to community have to mean something geographical if it's going to mean anything at all?

Mr. Olson: Well, this Court has repeatedly said... for example, in the Hamling case the Court was looking at a geographic standard that covered the entire State of California.

The Court said in Hamling and Jenkins that the standard doesn't have to have any specific geographic limitation.

Unidentified Justice: But did it... did that... and I just don't remember this.

Were we dealing there with a statute that separately referred to kind of an average person standard?

Because the problem that I have here is, if you say, well, it's... what it's trying to get at is a norm, it's already built the norm in on a different textual basis, and therefore if it's already built that into the definition, and it then additionally speaks of community standard, then that's where I have the problem, so in the case that you refer to, was the definition the same?

Did it have the two prongs?

Mr. Olson: Well, yes, because the Court was in that case applying the two... the other two prongs that this Court--

Unidentified Justice: No, no, but I mean, did it have the average person provision in the definition?

Mr. Olson: --It wasn't in the definition in the statute itself.

It was what this Court read into--

Unidentified Justice: Okay.

Well, now we've got it in the statute itself, so in effect I guess you're saying the reference to community standard, or the reference to average, one or the other, is essentially redundant in the definition.

Mr. Olson: --Well, it may be, but what the Congress was attempting to do was to develop and put into the statute the protections which this Court over the years have said are very important to protect the communicator.

Unidentified Justice: You're saying it's a belt and suspenders definition.

Mr. Olson: Well, what this Court has decided is that something to prevent jurors from deciding... imposing their own individual standards, or imposing the least sensitive standards of the community, or the most sensitive standards of the community.

Unidentified Justice: General Olson, there's one thing that you... some new thing comes up in your brief.

We go from Miller, where there was a geographical base, and I know you said that the Internet is not geographical base, but you use a term that, what is harmful to minors is reasonably constant across the United States.

Now, is that reasonably constant something looser than, say, the serious value as a limitation on what would qualify as harmful to minors?

Mr. Olson: Well, there is two parts to that.

The serious value standard is an objective standard that this Court and other courts are entitled to examine closely, and have examined closely to make sure that there aren't any aberrational prosecutions or limits imposed.

With respect to the community standards, what the Congress was attempting to do was to make sure that people didn't impose individual limitations with respect to how they were judging the material with respect to the other two prongs of the statute.

I hope I have answered your question, but--

Unidentified Justice: Well, the words that I used, they invoke Miller, so it sounds like Congress didn't write any word formula that was any different, but you say something... it's not--

Mr. Olson: --That was a finding, so to speak, by the House committee that there is not with respect... years have changed since the Miller and the Hamling case.

We're now in an era of national television, national media... some of those standards were articulated at a time when the community of the United States was much more isolated and insular in various different parts.

We are now talking about a national media, national television, national communication, the Internet reaching millions and millions of households.

What Congress felt, that there would not be substantial variation between what the average adult would feel would be harmful to minors under the very specific, itemized, detailed standards, prong 1, prong 2, and then with the value-added prong 3--

Unidentified Justice: --What was the basis for thinking that the harmful to minors would be reasonably constant to a greater extent than what is obscene?

Mr. Olson: --Well, the House report that specifically talked about that did not explain.

I should hasten to... did not explain what the individual elected Members of Congress were thinking when they came to those conclusions.

I think it's a reasonable thing to conclude, is that Members of Congress are reflecting the judgments that they develop as a result of running for office and being in a national legislature.

That's exactly what we expect Congress to do, and what Congress did in this case was apply those standards, and those instincts, and those judgments in a way in which it was in every conscientious way attempting to comply with the instruction that came from this Court in Reno v. ACLU as to how to do it.

Unidentified Justice: Well, I think it's a difficult question.

I don't know what the rule ought to be, but if you have a trial in State A, say a western State, California, can you bring in an expert from New York and from five other States, experts to tell the jury what the community standard is there, or does the trial judge rule that irrelevant?

Mr. Olson: Well, the courts have permitted expert testimony with respect to that, but there's a great deal of supervision that the trial courts and the appellate courts impose with respect to that to make sure that these definitions are being applied in a nonaberrational--

Unidentified Justice: In your view, how does it work?

I have a California jury.

Is it proper, or is it necessary for that jury to consider what the standards are in other parts of the country before it returns its verdict?

Mr. Olson: --I would submit, Justice Kennedy, that yes, that would be possible.

The Hamling instruction I think is instructive.

The Hamling instruction was the standards generally held throughout this country concerning sex, and matters pertaining to sex, the average conscience of the time, the present critical point in the compromise between candor and shame at which the community may have arrived at here and now.

In other words, that standard... and the defendant in that case argued to this Court that that is a national standard which this Court in Miller said was not required as a matter of the First Amendment.

Interestingly, in Hamling, the defendants in that case argued just as the plaintiffs in this case do, that a national standard is both required and would be prohibited.

In other words, they want to have it both ways.

Unidentified Justice: They want to have it neither way.

Mr. Olson: They want to have it neither way.

Either way, it would be unconstitutional, and this Court has specifically addressed that by saying that it... that jurors are allowed to draw from their experience, which necessarily comes from the community in which they reside, but that Congress felt in this case that there would be relatively constant standards throughout the country.

This is a facial challenge.

Unidentified Justice: Well, when you say relative--

Mr. Olson: There's no evidence--

Unidentified Justice: --You say relatively.

I'd like you to be specific.

That is, would it satisfy you if this Court said, when it says the words, average person applying contemporary community standards, we instruct the jury that the word community means the United States taken as a whole?

Mr. Olson: --I think that this Court has said that that is not a requirement of the First Amendment, but from the--

Unidentified Justice: I know.

I'm not saying it's a requirement--

Mr. Olson: --Yes, sir.

Unidentified Justice: --of the First Amendment.

Suppose, having read the legislative history, I came to the conclusion that that, in light of all the constitutional difficulties, is just what Congress had in mind, and therefore I wrote in the opinion, community means the entire audience at which this is aimed, likely the entire United States.

Mr. Olson: I--

Unidentified Justice: Now, if those words were in the opinion, would you consider that you had won this case?

Mr. Olson: --I think I would, Justice Breyer, and I think--

Unidentified Justice: So that satisfies you.

Mr. Olson: --And I think that would be a... the statute is readily... to use the words of this Court, the statute is readily susceptible to the narrowing construction, if that's how you would regard that, or a leveling construction.

I--

Unidentified Justice: Now, would you tell me what the difference is between the construction that Justice Breyer has suggested and the result of your argument that the third prong, the value prong, is in fact an objective prong and hence a national... I assume it's a national standard.

It's an objective prong, and therefore that in effect eliminates... as I understand your argument, the application of that prong eliminates a lot of the idiosyncracy that might conceivably come in under a strict geographic standard.

Is there a difference between the construction Justice Breyer is suggesting and the result that we would get if we accepted your argument about the effect of the third prong?

Mr. Olson: --I don't think so.

I think that what Justice Breyer is suggesting is a jury instruction or a judicial construction which would apply to prongs 1 and 2, and that what you're saying is absolutely correct also, we submit, that that is precisely what this Court has said that third prong is there for.

I should--

Unidentified Justice: Oh, I wasn't necessarily saying it.

I was saying that I think you're saying it.

Mr. Olson: --Well then, I agree with your construction of what I'm saying.

Unidentified Justice: Of you, okay.

[Laughter]

Mr. Olson: I think it's a very important point to make, that the Court has said that that is another way in which we protect the speaker from aberrational, highly--

Unidentified Justice: Well, but aren't you then saying to us that Congress, when it used the word community, really meant to say national?

Yes.

Mr. Olson: --Well, I suspect, Justice Stevens, that the people who assisted the Members of Congress in drafting the statute read this Court's decisions, as there's every indication in the two committee reports and in the hearings that were taken, that the Court was attempting in every way to live up to the standards of this Court.

This Court was saying that the First Amendment does not require a national standard with respect to community standards, but this Court has not been entirely--

Unidentified Justice: I think you're answering my question by saying yes.

Mr. Olson: --Well, what I think... no, I don't necessarily think that the Court... that the Congress was intending to impose a national standard, because this Court had said that it wasn't required under the First Amendment, and that the community standards did not have to be judged by any particular geographical area.

Unidentified Justice: I'm not trying to find out what the Constitution requires or what our cases might have required.

I'm just asking you what you think the word community means, as used in this section of the statute.

Mr. Olson: Well, I think what Congress was attempting to do was come as close as possible to adopting what this Court had said in the context of obscenity.

Now, I should hasten to say that to the extent that the Third Circuit felt that the community standards makes it unconstitutional in the context of the Internet, that... those community standards are... this statute prohibits obscene material on the Internet, too, and community standards don't work for material which is harmful to minors.

They don't work probably for obscenity, either.

Unidentified Justice: I don't know where we are here--

--Do you think it's possible for a North Carolina jury to sit in judgment of a particular pornographic transmission and decide whether this would offend the standards of Las Vegas and New York City?

I mean, doesn't any jury necessarily apply the standards of its own community?

Aren't we really talking about an imaginary distinction here?

Mr. Olson: Well, yes, Justice--

Unidentified Justice: Let's assume that you instruct the jury, jury, you must apply a national standard.

What does someone who's been raised his whole life in North Carolina know about Las Vegas?

Mr. Olson: --Well, I would submit that the judge would instruct the jury, and the judge examining the decision of the jury afterwards in appellate courts would do exactly what this Court has said.

As long as the juror is attempting to apply his judgment or her judgment with respect to adult perceptions, based upon all the input that the juror may have with respect to what is generally harmful to minors... the dilemma that this has caused, causes here, both for Congress and here in this Court, is that we want on the one hand to make sure that idiosyncratic judgments are not being imposed on the transmitter of information.

On the other hand, we don't want such wide variations that there would be difference in community--

Unidentified Justice: I suppose a defendant could call an expert witness in the case in North Carolina and say that in New York this is fine.

I don't know how much attention a North Carolina jury would pay to that.

Mr. Olson: --I think the defendants can put on expert testimony with respect to what general standards are, to use the phrase in Hamling, country-wide.

Now, I should say--

Unidentified Justice: But then the trial judge must instruct the jury, ladies and gentlemen of the jury, this is a national standard, and that's consistent with what Justice Breyer suggested to you, that we might consider in putting in the opinion, so it's a national standard.

Mr. Olson: --I'm not objecting to that.

If that is the readily accessible--

Unidentified Justice: I think we're asking what the Court... which the Congress wanted.

Now, I can sympathize with the Congress when they're not exactly clear on what this Court's decisions mean, but we need to know how it ought to apply to this case in the context of the Internet.

The Internet would be very different than a local bookstore.

Mr. Olson: --I think that is a reasonable solution to the problem, and is consistent with what Congress was saying.

Congress was also aware that this Court has said over and over again that the same material may be judged differently by different juries from place to place, and that that is not a constitutional impediment.

This Court has also said--

Unidentified Justice: General Olson, in this context, if you could... I didn't get a clear answer to my question.

Maybe I'll put it this way.

Is there greater judicial control, either by the trial judge or the appellate judge, with respect to the serious value standard than there is with respect to the national standard for community--

Mr. Olson: --Yes.

That's what this Court has said again and again, and we of course accept that, and that is... Congress accepted that as well.

Unidentified Justice: --And is your point, then, we first take out that category.

If it's serious value, it's out.

Mr. Olson: Yes.

Unidentified Justice: And it's only when it doesn't have serious value, then you get into the question of national--

Mr. Olson: Yes, that's right, but remember that... it seems important to emphasize that these definitions are highly specific with respect to the material which is prohibited.

It's not just saying to jurors... the obscenity statute doesn't have any of these limitations in it.

18 U.S.C. 466 just talks in very, very general terms, so what Congress was trying to do here is be much more specific than the obscenity statute, which this Court has accepted for 30 or 40 years by importing these kinds of definitions into it.

What Congress felt it was doing responsively was not only defining what was prohibited very specifically, but then incorporating those specific standards, just as you suggest, Justice Ginsburg.

The other thing that this Court has said is that those who are choosing a medium to make available to children material which is harmful to children, over which the person who is disseminating that information, those who wantonly decide to pollute the stream from which we all drink have a responsibility to take the minimal steps necessary to reduce the harm that's being caused by putting that material into the stream.

What we have as a result of this are substantive standards that Congress developed based upon the teachings of this Court with respect to obscenity, applying those standards to minors, as this Court suggested is appropriate and a part of a compelling national interest in the Ginsberg case, the Ferber case, and Sable case, and other cases where the Court has suggested that something has to be done, and is entirely appropriate to be done with respect to minors.

And then the third thing that Congress did was adopt a solution to the problem which is consistent with what 48 or so States have in these blinder laws, magazine racks displays, the books, materials that this Court considered in the American Booksellers case with respect to what would be permissible to prevent children from seeing damaging materials in bookstores.

Now, that is... so what we have as a result of COPA, Congress listening to this Court, lowering the age to 16 and under, making it apply to commercial speech and noncommercial speech, returning parental control, adopting a device that this Court has considered in the Sable case and considered in this case.

The language of this Court's decision in Reno v. ACLU said that the age verification system is technologically and economically feasible, is already in use, and would provide a defense to those commercial purveyors of pornography, so Congress listened to that, adopted that system, put into place for the Internet the same standard that already exists in the 48-State blinder laws with respect to access of minors to these materials, so--

Unidentified Justice: --Did Congress take account in any of this... I mean, one objection that's raised is, it's all futile, because you're just giving competitors from abroad... they will come in and fill the gap if U.S. providers are not available.

You're not going to be saving children.

You'll just be getting it from outside the U.S.--

Mr. Olson: --Well, the Congress did explicitly consider that.

COPA applied to material in interstate or foreign commerce.

The Government will prosecute where it can material that comes in from abroad where it's capable of doing it, but Congress also recognized that it would not... was not going to allow the perfect to be the enemy of the good.

It was going to deal with those problems, or those portions of the problem that it could address.

Now, we understand and we have acknowledged that it may well be that there are circumstances under which these limitations can be avoided.

There may be certain foreign purveyors that Government are not able to track down or obtain jurisdiction over, but what Congress was trying to do is deal with as much of the problem as it could in as constitutional a manner as possible.

Unidentified Justice: --And maybe Congress wouldn't mind even if the child pornography industry flourished, at least drive it overseas.

That wouldn't exactly be a bad result, would it--

Mr. Olson: Well--

Unidentified Justice: --in Congress' mind?

Mr. Olson: --Well, I think... and the Court considered a case earlier this year of the damage that that industry does, earlier this term.

Yes, there's two parts to that, Justice Scalia, the damage of the industry, the domestic industry itself is incalculable, but the damage to the recipient, to the children, are also incalculable, so that might address part of the problem, but Congress in this--

Unidentified Justice: But here, at least from the exhibits that you gave us, it doesn't seem that this material... there are no virtual children, no real children.

This is adult stuff, at least.

Mr. Olson: --Yes.

We're not talking about that aspect of the issue that you're considering in that other case, but what I was simply trying to address is Justice Scalia's question, that this is a major problem.

We understand from the legislative history that explicit, adult material, not just on the Internet, is an $8 billion industry.

According to what Congress decided in this case, there are 28,000 sexually explicit commercial pornography sites on the Internet.

This is readily accessible to children.

It is almost... anyone with any experience with the Internet will tell you that children can find it readily, and find it as long as they can type and read they will find it, and will find it by accident, and once they find it by accident... the House committee points out that if you type in the words, White House, [wwwDOTwhitehouseDOTcom,] you will find offensive, explicit pornography, and it's very hard to get rid of.

Unidentified Justice: And much of it you say... if I understand you correctly, you... this law doesn't touch... I mean, I was impressed at that set of exhibits.

You singled out three that you said would not be excluded as a matter of law.

Mr. Olson: Possibly.

Unidentified Justice: Oh.

So you're saying maybe the others--

Mr. Olson: Well, one of the ones that we were concerned about is a series of very explicit pictures, and I think the Court knows which ones I'm talking about.

We... I went and did some additional research on that.

That is... that are photographs of an art exhibit, and one art gallery that was several years ago that is a small portion of a large compilation.

Justice Ginsburg, I think that... I don't know how that would come out when all of the evidence came in with respect to that.

Those photographs were pulled out of context and put in the exhibits.

That's why this material has to be looked at as a whole, under these specific standards.

I'd like to reserve the remaining part of my time for rebuttal, except to say that this is a facial challenge, and we are dealing with the possibility of striking down or not allowing the enforcement of a statute which we... this Court and Congress and the executive branch is a necessary, narrowly tailored, carefully crafted solution to a desperate problem.

Unidentified Justice: --Thank you, General Olson.

Ms. Beeson, we'll hear from you.

ORAL ARGUMENT OF ANN E. BEESON ON BEHALF OF THE RESPONDENTS

Mr. Beeson: Mr. Chief Justice, and may it please the Court:

COPA, just like the Communications Decency Act, makes it a crime to communicate protected speech to adults on the World Wide Web.

The Government, as Justice Ginsburg just noted, has now conceded that COPA applies to much more than commercial pornographers.

They say in their reply brief that under COPA they can prosecute a popular online magazine, Salon Magazine, one of our clients, and the leading fine art vendor on the web for providing a few items that are deemed harmful to minors on their web site.

The affirmative defenses in COPA--

Unidentified Justice: Excuse me.

If they're providing those items, and if those items are pornographic, then they are commercially in the pornography business.

What difference does it make that they do other business as well?

Mr. Beeson: --Justice--

Unidentified Justice: I don't see why Salon or any other commercial operator should be immune by saying, well, you know, all of my business isn't pornography, just a little bit.

Mr. Beeson: --Justice Scalia, whether or not we talk about them as commercial pornographers, the fact is, the speech they communicate, which even the Government I don't think would label them commercial pornographers in the sense that we imagine, first of all, two of the three exhibits are not pictures at all.

They're written text.

They're stories, and the point is that all of this speech, by definition, all of the speech targeted by this law is by definition protected for adults.

This statute would make it a crime for speakers to make that information available, and the defenses simply do not solve the problems.

They're the same two defenses that were in the first statute.

There's no change at all, credit cards or adult access codes.

Unidentified Justice: Can you think of an example of something that would have serious literary, artistic, political, or scientific value for an adult, but it would not have it for a 17-year-old?

Mr. Beeson: Yes, Your Honor.

I think that--

Unidentified Justice: You can?

Mr. Beeson: --I think that all--

Unidentified Justice: I've had trouble.

16-year-old.

Mr. Beeson: --I think that all of our client's exhibits are precisely that sort of material, and that, of course--

Unidentified Justice: You think... I looked at some of the exhibits, and I think 17-year-olds are pretty sophisticated, and I don't understand why they wouldn't have, Salon Magazine, the same kind of value for a 17-year-old that they have for a 21-year-old.

Mr. Beeson: --Your Honor, the--

Unidentified Justice: It's 16, actually, isn't it?

We're talking about 16 years old.

Mr. Beeson: --Yes, I think it is 16, in fact.

Unidentified Justice: All right, 16... 16.

Mr. Beeson: There are--

Unidentified Justice: There are even quite mature 16-year-olds who know about--

[Laughter]

Mr. Beeson: --There are many communities in this country--

Unidentified Justice: That's, I think, the question in the case, correct.

You're saying in some communities... sorry, I didn't--

Mr. Beeson: --I'm saying... perhaps in even most communities that believe that providing any information about experiencing sexual pleasure, about sex toys, to teenagers, is sinful and is definitely harmful, and--

Unidentified Justice: --That's probably so, but I mean, what Justice Breyer is addressing and what I was concerned with with Mr. Olson was his argument that the third prong, the value prong, in effect, sort of sands off the rough edges, and it gets the... in practical terms it gets the community peculiarity out of it, and is that... obviously you don't agree with it.

Why is he wrong in that?

Mr. Beeson: --Your Honor, first of all, I think because all of the millions of speakers, including our clients on the web, they are the ones that have to understand this law, and as Mitch Pepper, who runs a Sexual Health Network which provides specific information about how to experience sexual pleasure to disabled persons, testified, I think very strongly, based on my interpretation of the words in this statute, even with the serious value prong, that value prong is value for minors, and he has to believe, as he testified, that discussion of masturbation, oral sex, anal sex, descriptive positioning, all of that can be construed as pandering to the prurient interest of minors.

Those are the... these are the speakers who are going to be subjected to criminal prosecution under this law, and let me clear, our clients don't ever want to come before a jury.

That's the problem, of course.

They--

Unidentified Justice: Oh, but the particular issue is really not the third prong.

That's not before us, I take it.

The issue before us is the question of community standards, and so does it satisfy you if the Court were to say... or, say I wrote an opinion.

I'm just thinking of myself... write an opinion that says, the word community standards does not mean individual localities.

It does mean the Nation.

Mr. Beeson: --Absolutely not, Your Honor, for two reasons which I want to explain.

First of all, under either standard this statute is unconstitutional, and that is clear, and that is because of the very strong deterrent effect it has on adult speech.

Through all of these speakers who are targeted under this law, they really have only two choices, and just to give one example--

Unidentified Justice: That was true in Hamling, too.

There was considerable deterrence, just because you didn't know... if you sent stuff Nation-wide, you didn't know where you might be prosecuted.

Mr. Beeson: --Mr. Chief Justice, there's a very real distinction here, and that is that Hamling was about the obscenity standard and this is about the harmful-tominors standard, and my point is that--

Unidentified Justice: Just a minute.

Will you explain why you think that's a distinction?

Mr. Beeson: --Because by definition all of the material targeted by the statute is protected speech for adults.

Adults have the right to access it, even though children don't.

In the obscenity context, obviously, even adults don't have the right to access the material.

Unidentified Justice: No, that's true, but you run... people in Hamling ran the same risk.

They may have thought their stuff would not be found to be subject to the community standard, but a jury might find otherwise, so that's just what you're complaining about.

Mr. Beeson: Well, the range of speech, however, of course, protected speech that is limited by the... by any harmful-to-minors display statute.

It's just by definition greater, again because the entire category of speech is protected for adults.

It's not like you're just arguing about the margin of what is obscene for everyone.

Unidentified Justice: Well, in obscenity cases, whether it was obscenity or not depended upon the community standards, so you were really taking your chance when you published something nationally you were subject to the least... highest common denominator of obscenity.

Why should it be any different for pornography than it is with obscenity?

It seems to me that Hamling and the other cases establish that it is no violation of the First Amendment to subject a publisher to differing standards throughout the country.

If we did it for obscenity, I don't know why we cannot do it for pornography.

Mr. Beeson: Again, most importantly, Your Honor, under any standard... under any standard, COPA is unconstitutional--

Unidentified Justice: Okay--

Mr. Beeson: --because it would deter such a great amount of adults from accessing--

Unidentified Justice: --But going back to Justice Breyer's question, if we construed the statute the way he has suggested, isn't it clear that we would have to vacate the judgment in this case and send it back?

We're not here to make a final judgment on the statute.

We're reviewing the injunction, and if we construed it his way, we would have to vacate, wouldn't we?

Mr. Beeson: --Your Honor, I don't believe so, because we have a very strong record here, which again the Third Circuit explicitly affirmed the findings of fact by the district court that show that adults are going to be deterred by this law, and that is because what the law requires is that you put screens in front of all of the material that again is protected to adults, and by definition, if you're Different Light Bookstore, which is one of our clients--

Unidentified Justice: But that's not a community standards problem.

Mr. Beeson: --It's a... Your Honor, it's a burden-on-speech problem.

Unidentified Justice: Yes, but I--

--It may be a burden on speech, but look at the question we took.

I'm trying to get you to ask... answer one specific question, and I'll try once more, all right.

The question in front of us, presented is whether the court of appeals properly barred enforcement on First Amendment grounds because the statute relies on community standards to identify material that is harmful to minors.

That's the question before us.

You have 17 reasons why this statute is unconstitutional.

I'd like you, for the purpose of this question, to forget about those 17 reasons.

I want to know if, in respect to this one reason, that the community standards... that's what's in the question... if we were to say the word community means national, then would you concede... would you say you've won, or you've lost, or--

Mr. Beeson: Yes.

Unidentified Justice: --That... how does that affect the case, to answer that question nationally?

Mr. Beeson: Yes, and our answer is that even under a national standard this law clearly violates the First Amendment.

Unidentified Justice: I know that, but is the right thing to do, then, for us to say, court of appeals, you were wrong about the meaning of the word, community standards.

It is a national standard.

There may be other things wrong with this statute, in which case, go and consider them, but this isn't one of them.

Mr. Beeson: Your Honor, we... again, if that were the course that you decided to take, we do not think that the appropriate thing would be to vacate the injunction, but whether to leave the injunction in place, and then--

Unidentified Justice: Not vacating the injunction, vacate the order of the court of appeals and say, you consider these other points.

Mr. Beeson: --Again, Your Honor, I don't think that that would be a helpful or useful exercise in this case, because of both the strong facts we're working on and also just to talk about the problem of the national standard which, of course, was referred to when Mr. Olson was speaking.

You know, as the Court said in Miller, a national standard would be an exercise in futility.

Will jurors have to decide base on their own sense of community standards whether or not something is patently offensive and prurient?

Unidentified Justice: But why is it okay for obscenity but not okay here for... not for... I'm putting it too favorably.

It isn't okay for obscenity.

It is okay for taking your chance on whether what you publish is obscene.

Mr. Beeson: And the--

Unidentified Justice: But it's not okay for taking your chance on whether what you publish is pornographic and harmful to minors.

Why should there be any difference between the two?

Mr. Beeson: --Well, for one reason of course, one of the crucial distinctions here is the nature of the Internet, and that is one of the arguments that the Third Circuit discussed.

It is very distinct from handling in Sable in the sense that this is not a situation where people who put their speech up on the web have any way of limiting their speech to only certain communities.

Unidentified Justice: But you're only talking about commercial speech, something that people are going to have to pay to see.

Mr. Beeson: Justice O'Connor, the Congress very explicitly wrote the definition of commercial speech in this statute so broadly that it applies to much more than people who primarily communicate what is termed commercial pornography.

That was the point before.

They explicitly said that anyone who includes any material that is harmful to minors is covered by the law, and again, according to the concession in the Government's reply brief, if you're [artnetDOTcom,] one of the leading fine art vendors, and you have a series of Andre Serano photographs on your site, you can be prosecuted, and also, of course, this is not material that is for sale.

There is no requirement that you're actually selling the material.

It's only that you intend to make a profit.

As the district court found, the vast majority of content on the web is available for free to users.

Unidentified Justice: Well, Hamling didn't rely at all, the opinion in Hamling, on the fact that the people could choose where to circulate.

I mean, they in effect said, you do it at your own risk.

Mr. Beeson: Your Honor, I think that's a very different conclusion to reach when you're talking about an environment in which you can control where you send the material.

If you're a regular magazine distributor, you know where you're sending your magazines.

On the web--

Unidentified Justice: Do you mean--

Mr. Beeson: --if you want to communicate locally, you can't.

Unidentified Justice: --You mean, we would have to make this exception even for obscenity, even for out-and-out stuff that's so far beyond that it's not even just pornography.

You would say we could not allow community standards to be applied--

Mr. Beeson: Your Honor--

Unidentified Justice: --on the web, for obscenity.

Mr. Beeson: --We think that that is a very different question, and that is not a necessary conclusion for the reason that I said before and that is because, by definition, a national standard for what is displayed as harmful to minors on the web would impact far more protected speech than a national standard for obscenity, which is by definition unprotected for adults as well as minors, and to put it another way, no adult has the right to materials that are obscene in even the most tolerant community.

Unidentified Justice: It seems--

Mr. Beeson: All adults have the right to materials.

Unidentified Justice: --the issue is how unconstitutionally unfair it is to the publisher, regardless of how many publishers are covered.

You're saying it's okay to do this for obscenity but somehow not for pornography.

It seems to me if subjecting you to a risk Nation-wide is an unconstitutional thing, you're going to go to jail just the same, whether you're going to jail for pornography or obscenity.

Mr. Beeson: We are saying--

Unidentified Justice: If we cannot use community standards for this, I don't see why we can use it for obscenity.

Mr. Beeson: --We, of course, don't think you need to even reach that question, but to the extent that you do, again, I think that it is quite a different question because of the amount of protected speech that is impacted.

It's just not... it is not so clear that under... with obscenity a national standard would be nearly as problematic as it would when you're talking about making available materials which are clearly, by definition, protected for adults to receive.

What COPA does is to prevent speakers from doing that, and requires them to make this unwelcome choice, which is, you either set up costly screens that the record shows are going to drive away your users, or you self-sensor, and if you're a Different Light Bookstore, or you are the Sexual Health Network, or you're the artnet, a fine art vendor, it's only rational, and of course they testified to this, you are going to self-censure, because that was the only option that will ensure that you're not prosecuted.

Unidentified Justice: But what about the Government's position that of all the exhibits that are at least in the record presented to us, there's only three that they say, even as a matter of law, might be subject to prosecution, so they're giving you a clean bill of health on all these others, and they say it's really a very narrow category, not the broad category that you're describing.

Mr. Beeson: Justice Ginsburg, in fact that concession in the reply brief makes us more nervous than ever, and that is because the Government has changed their mind.

They very clearly argued at the district court that our clients, none of our clients even had standing to raise the constitutionality of this action because they were so clearly protected.

Now, suddenly, here we are before the Supreme Court, and they say, oh, no, we changed our minds, some of them can be prosecuted.

That very much implies that they could change their mind again in the future--

Unidentified Justice: Ms. Beeson--

Mr. Beeson: --and in fact the speech is indistinguishable from many other exhibits that are in the joint appendix before you.

Unidentified Justice: --Ms. Beeson, let's talk about artnet.

Do you really think that when artnet puts out the Andre Serano photographs, do you think it expects to avoid being held under this statute because of 6(a), that it would hope that the average person applying contemporary community standards would find this material as a whole not designed to appeal to or pander to the prurient interest, or do you rather think that artnet's protection would surely be sought under (c), namely, that the material taken as a whole possesses serious literary, artistic, political, or scientific value?

Isn't that their real protection?

Mr. Beeson: Your Honor, they really do not believe it is their protection, and that again is because it says, serious value for minors, and that, of course, is one of the primary distinctions between this category and obscenity.

There are many people who would think that the fine art--

Unidentified Justice: The national standard... I guess I have to go back to that, but I didn't get an answer.

Right now, your clients could worry that they would be prosecuted under the Miller standard, and the only difference is minors, and so I find it very hard to think of an artistic work that one would say has serious value to a 21-year-old but not to a 16-year-old.

That, to me, seems impossible.

Now, you give me an example of such a thing.

Mr. Beeson: --Well, Your Honor, the Government itself is saying that art--

Unidentified Justice: That's their opinion.

I'm asking for your opinion.

Mr. Beeson: --I'm sorry, Your Honor, but they're the ones that are going to prosecute my clients.

Unidentified Justice: That may be, but the very fact that your clients could be prosecuted does not mean they win this case, because after all, they might be prosecuted under Miller, too, and everyone agrees that that's the law, so I'm asking you for your opinion, if you can find an example of a work of art that would have serious value for a 21-year-old but not for a minor, and I'm telling you I can't think of one, and the reason that I ask you is, I'd like you to try to think of one.

Mr. Beeson: Your Honor, with respect, we believe that all of the exhibits that we have put in, the artistic ones and the literary works, the column, the nude artworks by several clients, all of these could be targeted under the statute, and again, what the effect, the First Amendment effect of the statute is whether or not our clients legitimately feel like they have to self-censure under this law as compared to the obscenity law.

They don't believe that their works are obscene.

They know that some communities will find them harmful to minors, and for that reason what they are going to do is, they're going to self-censure, and what it's going to effectively do is have COPA driving a certain category of speech protected for adults from the marketplace of ideas that is the web.

Unidentified Justice: Are you saying that you have to give some effect to Congress' words?

It didn't say serious value, period.

It said, to minors, and that's different from serious value that we're accustomed to dealing with in the obscenity area, so for the Court to say, well, Congress just used those words, they didn't mean anything.

That's I suppose what you're saying is of concern.

Mr. Beeson: Yes, Your Honor, and the history of the harmful-to-minors definition, that is one of the primary points.

The point is that even though people might think that artistic words that are explicit, and you know, references to homosexuality that are explicit, have value for adults, many, if not most communities find that that same material does not have value for minors.

And again, to address your question, too, Justice Breyer, about the 16-year-old or the 17-year-old, there is nothing in this statute that defines minor as the 16-year-old.

The Government has been, again, pushing an interpretation of that statute.

Unidentified Justice: But I thought you might... I mean, I thought that the word, for example, for minors comes out of cases that permit the Government to require certain magazines to be placed in certain places in the bookstores, or in the retail shops, with brown covers, so perhaps there's some experience, since we have worked with the words, for minors, of something that has to be done under that law, but doesn't fall within Miller.

I mean, I just wanted to get your views on it.

Mr. Beeson: Yes, absolutely.

I think there haven't been that many cases on the books because, again, those statutes are much easier to comply with, and that's what the courts have found, but even in those cases the court has looked very carefully at whether or not there was a significant deterrence effect on adults, and in the blinder rack cases, none of which dealt with the unique nature of the online medium, in which, as our records showed, up to 75 percent of users would be deterred from accessing speech that had a screen in front of it.

Now, that is the finding of the district court.

The blinder rack cases didn't deal with that kind of situation.

None of them would require adults to disclose their identity, or to register before obtaining the access to protected speech, and there is certainly no record of the strong deterrence, and importantly, in those cases there was no record of an equally effective alternative, and that is something that I really think we need to get to, because here the district court specifically found that there was an alternative that was equally effective, and that is the use of blocking software, user-based blocking programs, and in fact--

Unidentified Justice: But you're saying that it... you're saying, which was an issue last time around, it's up to the parent, Government can do nothing.

The blocking, I take it, is something that the parent would buy and install.

The question is whether Government can do anything, and I think your answer is no.

Mr. Beeson: --Your Honor, we believe that Congress did two things already that we're not challenging here.

First of all, it established a study commission to look into other options for protecting children, and after the statute was enacted, that same study commission, Congress... and so I don't think, with respect to Mr. Olson, that he's correct that all three branches of Government are on the same wavelength here.

I think that we have some difference, and that is, Congress' own commission has now concluded also, which is equal to the district court's findings, that user-based blocking software is actually more effective than credit card and adult access code screening.

Just to remind the Court also that the Court specifically found that the Government didn't prove the last time around, in Reno v. ACLU, that those screening techniques, credit card and adult access codes, will actually prevent minors from accessing the content.

The same is true here.

There's no evidence that those are actually effective, whereas the district court specifically found user-based alternatives are effective, and then Congress' own commission concluded the same thing.

Unidentified Justice: Well, of course, all this goes to these other aspects of the statute.

As I understand where we are in the argument, the court of appeals decided for reasons that I think we cannot criticize on this record that it's going to sustain this injunction based on the community standards problem, and we're asking you, if the community standard is national, doesn't that solve that problem, and I'm coming away from this argument with the impression that you're saying, well, I'm not going to bother to help you on that, because there are so many other things in the statute I want to talk about.

Mr. Beeson: Yes, I'm sorry.

Unidentified Justice: But that doesn't help me answer this question.

Mr. Beeson: Right, and I don't mean to leave that impression.

I... what I'm saying clearly is that we believe that even if you were to read a national standard, it would be unconstitutional, because the real effect would be precisely the same as the local community standards interpretation is, and that is, the least tolerant community would get to set the standards for everyone on the web, since web speakers have no way to determine where their audience is.

Unidentified Justice: But is it not true that--

--Then you're saying that a national standard can't be enforced with any jury.

Mr. Beeson: I don't think that it can, because again jurors are going to have to enforce that.

You're going to have to have still a jury decide what is patently offensive and prurient, and I think they're going to do that naturally based on where they're physically located, in their own community.

Unidentified Justice: Then you're... and I don't mean this dismissively, but I think we have to accept this.

You're saying there in fact is no way to regulate this.

Mr. Beeson: Your Honor, I'm saying that there isn't any way to make it a crime to display material harmful to minors on the web.

Unidentified Justice: Yes.

Mr. Beeson: That is our position, and again, that we believe is very consistent with many other statutes that have recently been struck down by the Court.

Just last term in the Playboy case, in, you know, obviously the Reno v. ACLU case, the Denver Area case, I mean, in the last 20 years I count at least six statutes, some of which weren't even criminal statutes like this one, which I think has an even stronger potential for chilling speech, that were struck down because of the burden on adult speech.

Unidentified Justice: No, but I'm not... again, I'm not asking you the global question.

Mr. Beeson: I understand.

Unidentified Justice: I'm just asking you the question that goes to the specific issue that we took for review, and that is the legitimacy of basing an injunction, or sustaining the district court's injunction on the community standards portion of the statute, and my question to you is simply, I take it you're saying that there is no way to write a standard into the statute, call it community, call it national, call it some third thing that you dream up, that will ever suffice constitutionally.

Forgetting the rest of the statute, forgetting the rest of the problem, just on the touchstone of the standard, there's no way to do it, and I think your answer is no, there is no way to do it.

Mr. Beeson: There is no way to do it, and again, I do want to be clear that I think that we can divorce the rest of the language of the statute, even aside from the deterrence issues, and what I mean by that is, because the statute was written so broadly as to cover anybody who had even just one image, for example, because the statute was written to include not just images but text, I think, you know, I think those problems still remain even just looking at the textual language, even if you're focusing just on the community standard versus the national standard, and that's another reason why we don't think that fixing that problem is enough to save the statute.

Unidentified Justice: May I ask another sort of general question?

Do you think there's any way in which Congress can deal with the problem of what they call teasers, which everyone would agree would violate the standard here, and would also not have serious artistic value?

Mr. Beeson: Your Honor, one way they could do that, of course, is through more vigorous prosecution of obscenity and child pornography, which again--

Unidentified Justice: No, no, I'm assuming nonobscene--

Mr. Beeson: --Nonobscene.

Unidentified Justice: --but clearly pornographic teasers.

Mr. Beeson: Well, I mean, I of course don't want to be the one to rewrite the statute, but I do think, as I suggested before, that if they--

Unidentified Justice: But I'm asking if it's your position that that's beyond the power of Congress to control.

Mr. Beeson: --I think that a statute that did just apply, for example, to web sites who were actually selling things already... this one isn't limited to that... and secondly, web sites who the predominant portion of their site was actually harmful to minors.

That would certainly be closer to just addressing teasers than this statute is.

Unidentified Justice: You still haven't answered my question.

My question is whether it's beyond the power of Congress to control the teaser problem.

Mr. Beeson: Justice Stevens, my answer is that I think if they wrote a statute... are you asking me whether I think that statute would be unconstitutional also, because of course, I have to argue yes, it would be, but it would certainly be... you don't have to believe me on that.

[Laughter]

Obviously, and you know, just to be clear--

Unidentified Justice: Just on this one, right?

Mr. Beeson: --that would be... that's what I mean.

That's a very different statute than this one.

It would be one narrowly tailored to the--

Unidentified Justice: No, but one of the things we have to be concerned with is, there is a genuine problem that Congress is trying to address, and if your position is you just forget about it, that you've got to live with the problem, that's quite a different position than if you think, well, there's a less restrictive alternative that would accomplish what the Congress is trying to do, and you're suggesting to me there isn't a less restrictive alternative.

Mr. Beeson: --Well, the less restrictive alternative for actually protecting children is the user-based mechanisms, and that again, the... Congress itself found to be actually more effective at protecting children.

Just to refer to the exhibits that were put in by the Government, every single one of those sites that address the teaser problem, all of those were blocked by all of the major--

Unidentified Justice: What would Congress do, pass a law requiring parents at their own expense to impose user-based screening?

Mr. Beeson: --Your Honor, we certainly believe that the Federal Government could--

Unidentified Justice: I mean, that's not a solution.

That is not a solution within the power of Congress.

Mr. Beeson: --No, and we don't think it needs to be, because we think, of course, the ultimate decision ought to be resting on parents, where it always has, to make a decision as to whether they--

Unidentified Justice: You're saying, in answer to Justice Stevens, in your capacity as a lawyer, that whatever statute Congress came up with, you would believe in that capacity was unconstitutional.

You're not prepared to say that there's any statute that is constitutional.

I'm asking about what you think, not what I think.

Mr. Beeson: --We are not prepared to say that any statute which significantly burdens adult speech is constitutional, and I think that is very consistent with the opinions of this Court, as in the Playboy case and the Denver Area case.

In sum, I just want to say that the web provides access, as we all know, to more speech by more speakers than any other communications medium in history.

COPA threatens to transform this dynamic medium into one that is fit only for children.

We believe the preliminary injunction should be affirmed.

Unidentified Justice: Let me ask you a modification to my question.

Do you think it would be within the power of Congress to require everyone who is in this area of speech, which is protected as to adults but maybe not as to minors, to put a XX on their material that goes onto the web site so that the software could pick up that XX more effectively?

Mr. Beeson: Your Honor, the problem with that would be, of course, without some kind of mechanism that then allowed parents to--

Unidentified Justice: No, that's right, but then that would simplify the problem of buying... of setting up software that could screen out this stuff.

Mr. Beeson: --I think that it might have some compelled speech concerns, especially, again, where you're talking about a medium where you have these individuals... just because it's commercial businesses doesn't mean there's a big... you know, a lot of employees to make these determinations.

We have clients who are single individuals who are working out of their home.

I think they're just not going to be able to do that.

What they're much more likely to do instead is to self-censor, so I'm not sure that that would be a solution.

We believe that a much better solution... and Congress agreed with us.

The Justice Department itself wrote a letter to Congress before this law was passed saying that they think that upholding this statute would divert valuable resources away from the more important issues of prosecuting the child pornographers.

Unidentified Justice: Ms. Beeson, last time we had a colloquy with the Government on this subject, and they were candid to say, we're not trying simply to maximize parents' choices.

We think Government, qua Government has a concern for the children, so even if you have parents who don't care at all what their kids see, the Government has an interest in seeing that children... and your point about the effectiveness of a blocking device doesn't go to that at all.

The Government's saying, we have an independent interest, and we can do something.

Mr. Beeson: Yes, I do believe that that issue came up in the Playboy case last term, and the Court, you know, did rule that again voluntary... we can't assume, especially without a record to the contrary, that parents are going to fail to act.

Unidentified Justice: Thank you, Ms. Beeson.

Mr. Beeson: Thank you.

Unidentified Justice: Mr. Olson, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Mr. Olson: Thank you, Mr. Chief Justice.

Justice Ginsburg, this Court has specifically said and held in the Ginsberg case that the Government does have a responsibility, and this Court has repeatedly said there's a compelling national interest in addressing that responsibility.

It is not just helping the parents.

It's an independent, as this Court put it in the Ginsberg case, independent responsibility to do something to prevent damage, which everybody agrees is damage to children.

What we're hearing from the plaintiffs in this case is the same sky is falling defense that everything possible is going to be precluded and taken away from adults, and that some of the same parties were making in the American Booksellers case, and this Court sent that back to Virginia and asked the Virginia court to examine whether all of these publications and materials were going to be covered by the statute, and it turned out that none of them were, and then the case wended its way back to the Fourth Circuit, and it resolved itself in these statutes that were used, that Congress uses as an analogy, the blinder statute.

Now, what our opponents say now is that this blinder statute applied to the Internet is somehow intrusive, expensive, intolerable, burdensome.

But when you go into a bookstore to look behind the rack, you have to do that in person.

Sometimes, if it's a 7-11 or one of these convenience stores, it may be on a camera.

In the Internet, you have to identify yourself with a credit card, which many people do anyway.

These screens already exist, as Justice Stevens' questions focus on.

It is the teasers that are in front of the screen that Congress was attempting to get at, so in many cases these screens already exist.

There's a privacy provision built into the statute that prevents the adult identification services from sharing the information as to the identity of the person using it.

I would submit, or the Government would submit it's quite obvious that this is less intrusive.

As this Court said in Reno v. ACLU, the system already exists, and it's already in use, so what... and the definitions... oh, and the other point that several of the questions have focused on is if community standards are not permissible on the Internet, which is what I understand our opponent's position to be, those go out the window with respect to obscenity, because those are the same standards that this Court developed.

Now, what will happen then, as a result of affirming the Third Circuit's decision, is that all of the obscene material which is now behind the screen will be in front of the screen, and all these children will now not just be seeing the teasers, but the effect of the Third Circuit decision is that they will be seeing everything that anybody, any of the commercial pornographers want to put on the Internet.

Now, the definition of commercial, that is the same definition.

Congress understands what those words mean.

It made it clear that it was talking about people that are in the business of making a profit as a regular trade or business in dealing with the provision of material which is sexually explicit, and damaging to minors.

It's a definition that already exists, that this Court is quite familiar with.

It's in 18 U.S.C. 1466, the obscenity statute.

The same definition of commercial is in that statute that Congress adopted for this statute.

Finally, with respect to the national standards point, I don't think Congress intended to adopt a national standard.

I think what they were trying to do is develop a standard based upon what this Court said in Hamling, and specifically in Jenkins, which was decided the same day as Hamling.

The jury instructions need not specify what community, and so forth.

I won't repeat the whole definition there, that the definition of community standards does not have to be geographically limited.

Congress suggested that there wasn't going to be much variation.

They didn't... Congress didn't feel that there would be much variation anyway, and this Court has said there can be some variations from place to place and time to time--

Chief Justice Rehnquist: Thank you, General Olson.

Mr. Olson: --and if you're in that business you're taking your chances.

Chief Justice Rehnquist: The case is submitted.

Attribution:

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Featured:

Ashcroft v. Free Speech Coalition - Oral Argument

Fri, 09 Jan 2009 14:50:26 +0000

Case:

Ashcroft v. Free Speech Coalition

Media File:

00-795_20011030-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement.

Mr. Clement: Mr. Chief Justice and may it please the court: In 1996 Congress updated the child pornography laws to keep pace with technological developments.

Congress extended the existing prohibitions on visual depictions of actual children engaged in sexually explicit conduct to cover virtually indistinguishable images in material pandered as child pornography.

These provisions are constitutional for the same basic reason that other laws prohibiting child pornography have been upheld.

They protect real children from real abuse.

They do so in two important ways.

First, by preventing the publication and production of materials that are as effective as traditional child pornography in seducing children, and second, by allowing the government to effectively prosecute cases involving traditional forms of child pornography.

First, these provisions allow the government to attack material that poses the same risk of enticing children into illicit sexual activities and to pose for child pornography as traditional child pornography.

The government has a clear and compelling interest in targeting such material; indeed, this court in Osborne against Ohio used that rationale to uphold Ohio's prohibition on the possession of child pornography.

Second and equally important, the government has a clear interest in promoting the effective prosecution of the traditional laws against traditional forms of child pornography.

The advent and increasing availability of computer technology has allowed individuals to generate computer images that are virtually indistinguishable from traditional photographs.

This allows criminal defendants to inject reasonable doubt arguments into virtually every case.

Justice Souter: Has any case, to your knowledge, been lost on that ground in which that was a substantial argument?

Mr. Clement: No case has been lost on that ground but that is largely a result of the 1996 Act, which has taken that argument away from criminal defendants.

And to give you one very specific example, the case that the Fifth Circuit heard in the Fox case, United States against Fox which is one of the cases where the lower courts upheld this law in an as applied context, the government's expert witness, Special Agent Barkhausen was forced on cross-examination to admit that she could not tell definitively whether or not the image was of a real child.

Now that concession prior to the 1996 Act would likely have been fatal to the government's prosecution.

Justice Stevens: Was that because she couldn't tell whether the real child was over 18 or under 18 or because she couldn't tell whether it was a real person?

Mr. Clement: That case was because she couldn't tell it was a real person.

Justice Stevens: Wouldn't she have the same difficulty on the distinction between an 18-year-old and a 19-year-old?

Mr. Clement: In the cases where the line that the courts are concerned with is the line between 18 and 19, there's an additional aspect of the statute that clears up many of the problems and that's the affirmative defense which allows individuals to produce and distribute materials if they make clear they involve actual individuals who are over 18.

Justice Ginsburg: But in terms of what you outlined, in terms of the two dangers, you say just the same as if it were an actual child.

Well, if it's a very young adult who looks like a child, it seems to me everything that you said about the virtual pornography would apply to a young adult who looks like a child.

Mr. Clement: That's certainly true, but I think Congress in recognizing an affirmative defense for materials that were produced using people who had reached the age of majority struck a balance and recognized that this Court has provided additional protection to pornographic depictions involving actual adults.

Justice Souter: Okay, well the question of the balance raises the question of tailoring, and what I wanted to ask you was if it's appropriate to have the affirmative defense that the children or that the people depicted were in fact over 18, why isn't it equally appropriate to have an affirmative defense to the effect that the depiction does not have anyone who is not a real child under 18.

In other words, if the government's interests are protected by the affirmative defense in the real child case, why shouldn't there be a comparable affirmative defense for the simulation.

Mr. Clement: I think there are at least two reasons for that differential treatment.

One is with respect to age that's a fact that's uniquely verifiable and in a lot of contexts we recognize that somebody's age is something that one can verify.

And in fact what we're really talking about in most of these cases where the affirmative defense for age would be implicated are films and the like where there would be witnesses who could testify that somebody was of a particular age on a particular date.

Justice Souter: But in effect you're depending on the witness to say that the actors here were in fact over 18.

Maybe they'll produce facsimiles of birth certificates or maybe they'll produce children or whatnot.

Why can't you have the same evidence to the effect that there were no real children being used in manufacturing the film?

You're depending on witnesses in each case.

Mr. Clement: Well, in most of the cases when you're talking about somebody who's going to make the claim that they actually generated the photographs themselves, there will be no witnesses.

But I think more important than the presence or absence of witnesses is--

Justice Souter: But that's a question of proof and I suppose that if the only person who steps up to the stand and says, there were no live children here, is the person who was accused of the pornography, that person may have something to worry about in not having a very convincing affirmative defense.

But that's the defendant's problem, not the government's problem.

And so I don't think that answers the question, why if the government is sufficiently protected with the affirmative defense in the one class of cases it wouldn't be in the other.

Mr. Clement: --And I do think that age rather than whether an image is computerally generated is something that is uniquely subject to verification and this Court in its Ferber decision confronted the argument that the New York statute was overbroad because it didn't limit its protections to photographs and images that were produced in the state of New York.

And the court rejected that overbreadth argument for two reasons; one, that it would be virtually impossible for anybody to prove what was the state of origin for the photo.

And I think the same analysis applies for a computer generated image.

The second reason, of course, was that even materials--

Justice Stevens: Why is it... why is it that witnesses can explain the age but cannot explain whether it was computer generated?

Mr. Clement: --Because, again, in sort of the stylized case that the person who's computer generated an image, that's not something that requires a film crew to be brought in so there aren't necessarily going to be witnesses.

In the case--

Justice Souter: But that's not the government's problem.

I mean, that may be the problem of the person who has the burden of proof to carry on the affirmative defense and if it is a problem then the government is the... in effect going to be the winning party in resolving that problem, but like Justice Stevens, I don't see what is essentially unique in the probative process to acclaim that it was a computer generation rather than a claim that the kid shown was over 18.

Mr. Clement: --Well, I'm not sure it's absolutely unique but I do think age is uniquely subject to verification.

And if I could get to the second reason that this Court pointed out in Ferber why you didn't need to have a limitation just to pictures generated in the State of New York, the Court recognized in footnote 19 that those materials, even if produced outside the State of New York, pose harms and potential risk to children inside the State of New York.

Justice O'Connor: Mr. Clement, may I ask you a question again relating to the affirmative defenses or youthful adult pornography.

There appears to be no affirmative defense for possession of something that in fact used adults, is that right?

Mr. Clement: That's right as a matter of the statute.

There's no express affirmative defense for possession.

Justice O'Connor: Well, let's relate that to something that perhaps a number of people in this courtroom have seen.

The film, Traffic, which depicts I guess someone who purports to be under 18 engaged in conduct that would fit under the definition of the statute to be banned, right.

Mr. Clement: I believe that's true.

Justice O'Connor: Did you see it?

Mr. Clement: I did see it.

[Laughter]

Justice O'Connor: Okay.

So presumably it would be covered.

Now, there is no defense to someone who rents the movie, they possess it, no affirmative defense.

Mr. Clement: There's no affirmative defense for possession but I think what the statute does is it effectively makes it so that in virtually, in the vast majority of cases where the producers and distributors of a film will be able to claim the affirmative defense, the individual possessor will be able to claim the affirmative defense because of a failure of the government's ability to prove scienter, because if you think about the affirmative defense it gives people the ability to distribute a movie if it involves actors.

But if they have the right to distribute a movie that nobody can lawfully possess, it doesn't give them much, that's not much comfort to them.

Justice Breyer: I don't understand.

I mean I buy at the video store three films, Traffic, Lolita, and Titanic.

Each film has a scene of simulated sexual behavior by 17-year-olds, all right?

I think that was the question.

The question is, why am I not guilty under your interpretation of the statute of a federal crime for possessing those three films?

Mr. Clement: There's two reasons.

One is precisely in order to deal with this anomaly that they don't want to be producing a film that nobody can lawfully possess, the affirmative defense gives an incentive to producers and distributors to make it clear in the marketing of the material that those scenes that you're talking about were scenes that were produced using adults or scenes used with body doubles, and so in that sense through the marketing of the material they can make it clear to people that it involved adults.

Justice O'Connor: There is the defense for the producer, but there isn't for the person who rents the film.

It's just I--

Mr. Clement: Exactly.

Justice O'Connor: --I'm struck by what we're supposed to do with a statute like this.

Mr. Clement: There is a requirement, though, that the government prove scienter with respect to age in any prosecution for possession and I don't see how the government could prove scienter as to age in the case of these films where they're marketed in a way where it's clear that they involve adult actors.

There's a second aspect in which this Court could find the affirmative defense to cover individuals and that... individual possessors, and that is the statute does give an affirmative defense for receipt and as the government argued in its briefs that naturally would cover possession incident to receipt.

What it doesn't cover, though, and why I think Congress didn't have a blanket affirmative defense for possession is it doesn't apply to somebody who receives some material that's marketed in a way or has a disclaimer that makes it clear that it involves adult actors, but then the individual somehow modifies it, strips out the disclaimer.

In that case, the possession is covered by the statute and I think rightly so.

Justice Stevens: Does it trouble you at all that the statute would prohibit a motion picture company from employing an 18-year-old actress to play the three roles that Justice Breyer identified?

Mr. Clement: Well, it would trouble me if the statute had that effect but it doesn't have that effect.

The affirmative defense makes it crystal clear.

Justice Stevens: Even though the actress is under the statutory age, 18?

Mr. Clement: Oh, I'm sorry, I thought you said 18.

Justice Stevens: Would it trouble you that the statute would prohibit an 18-year-old who is a child under the statute from performing those three roles?

Mr. Clement: Well, I think it's 17, but in any event it doesn't trouble me if it's a 17-year-old is prohibited because they wouldn't be prohibited from playing those roles if... the studio would have two options.

They could either not include the sexually explicit conduct which is all that's covered by the statute, and I think it would be possible to have made the film Traffic without involving simulated sexual activity.

But putting that to the side, the other option is to use a body double and make it clear in the marketing of the film that that's precisely what you've done.

Justice Breyer: I take it your answer to the question if this afternoon I go out, go to the video store, buy the three films and bring them home is, yes, I am guilty of a federal crime.

Mr. Clement: Not at all.

You could not be guilty because the government could not prove scienter and because you would have lawful--

Justice Breyer: What do you mean you can't prove scienter?

It says that it is a crime to buy, to possess a film that has simulated sexual activity by persons who appear to be under the age of 18.

Well, I would tell you right now, I think that film did contain simulated sexual activity by persons who appeared to be under the age of 18.

Mr. Clement: --And again--

Justice Breyer: I don't think it was real activity, I think it was simulated, and I think they did appear to me to be under the age of 18.

So am I guilty or not?

Mr. Clement: --You are not guilty for the two reasons that I've said and let me just say that you would have the same problem with respect to the statute at issue in Ferber.

Justice Scalia: Mr. Clement, I'm not sure what simulated sexual activity consists of.

I didn't see any of these movies.

[Laughter]

Justice Breyer: They were pretty good actually.

[Laughter]

Justice Scalia: One described in the briefs supposedly was the shot of a juvenile, whether played by a juvenile or not, from the waist up supposedly engaged in sexual activity.

Would you consider that to be covered by the statute as sexually explicit conduct?

I mean what if it was just the hand?

Mr. Clement: Well, certainly if it was just the hand and certainly... I think there would be certainly a number of ways--

Justice Scalia: Don't you think, I mean the definition of sexually explicit conduct is and what the statute prohibits is this conduct by minors under 17 or younger, sexual intercourse, engaging in sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area.

Now, the government has not made the argument that at least as applied to juveniles this is unprotected speech anyway and consists of obscenity which a state or federal government is free, if it wishes, to prohibit?

Mr. Clement: --To the contrary, the government has argued throughout this case that it's all unprotected speech because it's child pornography.

And I think--

Justice Ginsburg: Not because it's obscenity, you're creating, you would have us create yet another category of prohibitive, something that falls totally outside the first amendment.

Have you claimed, as Justice Scalia suggested you might have, that at least some of this material is obscene and therefore covered without regard to any new, any child pornography catalog... category.

Mr. Clement: --Well, I want to be clear, I think government would take the position that virtually all the material covered by this statute is independently obscene, but that's not how the government chose to regulate it.

Justice Stevens: If the scene of a head of a person who the other information in the movie makes it appear they're engaged in sexual intercourse and all that is seen is the head of a male and a female kissing one another, that would come covered by the statute.

Mr. Clement: No, I don't think that would be covered by the statute.

Justice Stevens: Why not?

It's simulated sexual intercourse.

Mr. Clement: I think you have to read the term simulated sexual intercourse in conjunction with the other terms in the statute.

Justice Stevens: It expressly says there's no patently offensive requirement.

Mr. Clement: That's certainly true but I think if you read the statute in context, I think there's some requirement that the sexual intercourse that would be depicted would require some display of nudity in the process.

Certainly... well, it doesn't... it may not say that and the statute itself may not address that case.

And I would suggest that the proper way to resolve that case is in an as applied challenge.

Wait for the government to bring that prosecution.

In fact, I think the government won't bring that prosecution.

I mean, it's interesting to talk about the film version of Lolita and the like but that involves just a tiny fraction of materials covered by this statute, and if you want to bet--

Chief Justice Rehnquist: Ferber pretty much said that child pornography is of almost no value, did it not?

Mr. Clement: --Absolutely, and that's why this material that we're talking about is all probably virtually, the government could capture it as obscenity but of course if it tried to do that it couldn't ban the possession, and child pornography was treated as a different case in Ferber.

Chief Justice Rehnquist: Child pornography is a different case but very much like obscenity.

Mr. Clement: Absolutely, like obscenity, what this Court said in Ferber is the reason the statute was permissible is because it defined a category of conduct that could be proscribed and was outside the protection of the First Amendment.

Justice Ginsburg: There's a vast difference between an actual child who was violated and a picture, a simulation in Ferber that you have relied on so heavily, what do you make of a sentence that is not in the footnote, it is the text, that simulation outside the prohibition and the prohibition was using an actual child, simulation outside the prohibition could provide an alternative?

Mr. Clement: Well, let me just clarify one thing because the statute in Ferber itself also covered simulated sexual activity so all these line drawing problems about what, you know, at what point does the scene in Traffic come under the coverage of the statute also applied in Ferber because it also captured simulated acts involving adults.

So the only difference between the coverage of this statute and Ferber is that this statute does attempt to prohibit materials that do not involve actual individuals but are virtually indistinguishable from--

Justice Ginsburg: Yes, but even that sentence in Ferber said we're not touching in this case, here we have an actual child simulation outside that prohibition could provide an alternative.

Mr. Clement: --With respect, I don't think that's what Ferber meant to say.

I mean, Ferber, after all, was decided in 1982.

Justice Ginsburg: It used those words.

It used those words.

Mr. Clement: It did, but it was decided in 1982 before this technology even existed.

And interestingly, if you look at footnote 20 in the Ferber opinion the Court went out of its way to invoke the general doctrine that you don't apply cases before they arise and you don't adopt a rationale any broader than necessary to decide the case before it.

And it just seems to me--

Justice Ginsburg: What if we read that sentence as though it were not there?

Mr. Clement: --No I think you read it in the context--

Justice Ginsburg: Not in the opinion.

Mr. Clement: --with respect, I think you treat it in the context of what was prohibited by the New York statute and the technology that was available at the time.

And I think what's important here is any avenues for speech that were left open in Ferber are left open by the statute in conjunction with the affirmative defense.

The only materials that are covered by the statute and not covered by Ferber are materials that didn't exist at the time of Ferber and it seems to me that Congress is entitled to update the tech... the pornography and obscenity laws to deal with technological developments.

The first federal obscenity statute in 1842 didn't cover photographs because the technology wasn't in widespread use at the time.

Subsequently Congress added photographs to the cover to the obscenity statutes because technology developed and new problems arose.

Justice O'Connor: The Court relied very heavily on the notion that if you use actual children they are harmed, they are actually harmed, so what is the primary reliance that you make for applying the same prohibition to these video images?

Mr. Clement: Well I think there's... I would make two responses.

First, I think this Court has never strictly limited itself to the protection of the child depicted in the image and it recognizes that legislatures in Congress have an interest in protecting all children but secondly--

Justice O'Connor: It did seem to me that the Court, and I was here, played heavy reliance on harm to children.

Mr. Clement: --Absolutely.

Justice O'Connor: Actual children.

So I'm asking you what is your primary reliance when you don't have that?

Mr. Clement: Well, I don't know that we have to answer that question in this case because we do have that, because this statute enables the government to continue to prosecute effectively cases involving traditional forms of child pornography, because the advent--

Justice Kennedy: But that's not an answer to Justice O'Connor's question.

Basically we're talking here about overbreadth and the government's argument seems to be that since there is a class of materials that we can proscribe, the fact that it's overly broad is the respondent's problem.

But the law works the other way around, you have to show that this statute is precise as to its coverage and that it covers no more and let's just for argument's sake, although I don't think that's the law, concede not substantially more than what can be prohibited.

And Justice O'Connor's question was directed to this latter problem and it seems to me you're not answering the question.

Mr. Clement: --Well, I'm trying to and I think that, I mean, first of all, even in an overbreadth challenge the burden does lie on the party challenging the statute and they have to show things from actual fact in order to challenge the statute and I don't think they've carried that burden.

Second, this statute is responsive to the problem of protecting both the children depicted in the image and all children who can be seduced or enticed into this kind of activity can be depicted themselves.

Justice Kennedy: But the gravamen of her question, Justice O'Connor can explain her own question, but as I understood it, is that there's a substantial area here where adults who are play acting roles of children are covered, and the question is what is the government's interest in that?

Mr. Clement: There isn't an interest in those play acting cases and that's why the affirmative defense allows those to take place.

But again, the question is as you indicated substantial overbreadth and these questions we're talking about, about Traffic and the film version of Lolita really are a tiny fraction of the cases covered by the statute.

Justice Breyer: Why is it that the question I really would like you to get to if you can is one that's really bothering me very much is the question that Justice Scalia asked and the thing in this area I do not understand, in the entire area is why doesn't Miller work?

There is obviously a set of materials which Justice Stewart used to refer to as I know it when I see it and that material does not have at its object communication.

It has at its object a certain activity which is not communication.

Now that's all over our society, and why, given this Court's decision in Miller, is that so?

And if I knew the answer to that question I would be better able to deal with this kind of case.

Mr. Clement: Well, let me first try to say two reasons why I don't think Miller is directly relevant and if those aren't responsive to your questions, maybe--

Justice Breyer: I'd rather not hear why it's directly... not directly relevant because my question, which is my own problem, not your problem, is I'm trying to understand the area.

There are several cases in this area coming up, this is not the only one, and I want to know from the government why it is, you've read in this area, maybe you just should direct me to an article.

The problem I personally am having as a judge is I think what Justice Scalia was driving at, maybe, that's his question, is why doesn't Miller work.

Now maybe you'll tell me that it does, but that's contrary to my experience because it seems to me I see much material that would have flunked Justice Stewart's test all over the place.

And it seems to me that that's the material that parents are worried about their children getting a hold of.

Now, if I knew why Miller was insufficient to deal with that problem I would know better how to deal with this kind of a case.

Mr. Clement: --Well, one reason that Miller is a difficult case and doesn't... isn't terribly satisfying is it requires a case by case adjudication of that three-prong test which I would say with deference is not self-defining.

And what Congress decided to do in this context is follow the lead of Ferber where it said that Miller wasn't the test of child pornography and defined a much clearer class of material that whether or not it applies in Miller, whether or not the work as a whole is implicated, this is a definable class of material that is outside the protection of the First Amendment.

If you have concerns about the Miller test then you really should seize upon this statute and Ferber and the analysis in Osborne as one way to deal with that problem because here's a test that doesn't rely on community standards or other difficult considerations to apply in practice.

It has a test that says when we're talking about visual depictions only, we're not talking about novels here, and we're talking about material that depicts children engaged in sexually explicit conduct then we don't have to look to the value of the work as a whole.

You can put all the Shakespeare around these visual depictions you'd like and they're still visual depictions of children engaged in sexually explicit conduct.

Justice Ginsburg: Mr. Clement, before you finish there's something of great concern to me too because it seems that this is a big step away from actual child, injury to an actual child to the effect on the viewer and the same thing could be said for women with respect to pornography, portraying women in a degrading way.

The same thing could be said for hate speech.

So this, where there is no actual child victim, where it's a picture and you're talking about the effect of that on the viewer, why isn't it the same for all these other things that can have a very bad effect on the viewer?

Mr. Clement: Well, I think there are two principal reasons why you shouldn't be worried about that particular slippery slope.

One is this Court already put one foot down that slope in Osborne when it relied on the seduction rationale in conjunction with the concern for the children who were depicted.

And in the same way this statute responds both to harm, potential harm, to other children in the seduction rationale and to children actually depicted because as a matter of practical reality it's become very difficult for the government to prosecute cases involving actual, traditional child pornography.

Justice Ginsburg: If you have this out you can use simulated children, that will protect the actual children from being exploited.

Why can't you say one as much as the other?

Mr. Clement: Because I think, as I indicated before, there are real verifiability problems that don't arise in the context of age that do arise in computer.

The second reason, though, I think that you have to be less worried about the slippery slope in this context is the government has consistently gone to the courts and told them to interpret appears to be to cover images that are virtually indistinguishable from traditional child pornography.

It doesn't seem to put this Court on a slippery slope to say that material that is virtually indistinguishable from material that's already been held to be outside the protection of the First Amendment also will be outside the protection of the First Amendment.

Justice Stevens: Are you asking us to read that phrase into the statute, the virtually indistinguishable phrase?

Mr. Clement: Well, the virtually indistinguishable phrase already appears in the text of the statute, it just doesn't appear in the operative provision.

So what we're asking you to do is to read that term, appears to be, in light of the legislative finding, where it's not just the legislative finding where it's virtually indistinguishable.

Justice Stevens: You're asking us to construe the statute narrowly to apply only to things that are virtually indistinguishable from actual behavior, it would eliminate cartoons and that sort of stuff?

Mr. Clement: That's absolutely right and that's the position we've taken in all the lower courts.

Justice O'Connor: Even the language that says conveys the impression, you want us to give the same meaning to that?

Mr. Clement: Well, I actually think that the conveys the impression language could be given that meaning but I think the conveys the impression language is much less problematic from a constitutional standpoint if you understand subsection D of the statute to be addressed to pandering and in that context the concerns about vagueness are much reduced because you're not going to be focused on just the image, you're going to be focused on the way it's marketed, and I think in that context it won't be difficult to see whether or not it conveys the image.

I'd like to reserve the remainder of my time for rebuttal.

Argument of H. Louis Sirkin

Chief Justice Rehnquist: Very well, Mr. Clement.

Mr. Sirkin, we'll hear from you.

Mr. Sirkin: Mr. Chief Justice and may it please the Court: The petitioner's argument if adopted would have three radical tragic consequences for First Amendment jurisprudence.

First in the name of protecting children all visual messages of adolescent sexuality will be forever barred regardless of their scientific, artistic or educational value.

Second, countless visual depictions--

Justice Scalia: Excuse me, such as what?

Such as what?

You know, I try to think what great works of art would be taken away from us if we were unable to show minors copulating or any of the other acts set forth in the definition here.

Can you give me a couple of examples?

Mr. Sirkin: --Certainly, in the film area.

Justice Scalia: Lolita?

Mr. Sirkin: Lolita, Traffic.

Justice Scalia: That would be a great... leaving the book, the movie Lolita, the book is perfectly okay, right?

This only applies to the movie?

Mr. Sirkin: That's correct.

Justice Scalia: The great work of western art.

Mr. Sirkin: It's gotten critical acclaim.

The movie Traffic, I think, won an Academy Award.

There's the movie Tin Drum.

Justice Scalia: What else besides the movie Lolita would we be deprived of in order to prevent little children from being exploited?

Mr. Sirkin: There's the movie Traffic, there's the movie Tin Drum, there's a whole bunch of, you know, there's the Brooke Shields movies that maybe some people don't enjoy, but again it's there, the Blue Lagoon and the series of movies such as that.

Justice Scalia: In respect, this is not, you know, the Mona Lisa or Venus de Milo or anything that has lasted more than 30 years.

Mr. Sirkin: It could very well affect, I think, painters because the statute... excuse me.

Justice Stevens: How about Romeo and Juliet?

It interprets one scene there that way.

Mr. Sirkin: It could, if the movie... a movie of Romeo and Juliet were made.

Justice Scalia: Gee, you've seen a different version of that play than I have.

[Laughter]

Mr. Sirkin: Well, it depends on how they wanted to portray it.

I think they would have to be prevented from showing or simulated sexual activity because if they are in fact, you know, to be considered to be underage.

And secondly, countless visual depictions of adult sexuality will be prohibited where the adults depicted appear to some unknown censor to be younger than 18.

And third, it would open the door to banning other forms of expression simply because the expression could be misused and/or abused by a small segment of society.

Justice Breyer: Very well, how should it be read?

How would you write the statute so that it did take Justice Stewart's material that flunks.

Mr. Sirkin: One is, I think, enforcement of the obscenity laws would be one way.

Justice Breyer: Apparently that doesn't work and that's why I'm puzzled.

And where children, where you're depicting children engaged in this activity, let's say that flunks the Algerian seaman test or whatever it was he used to have.

Mr. Sirkin: Your honor, there's--

Justice Breyer: How is Congress to write a statute in the area of children that gets at that problem, which is a problem?

Mr. Sirkin: --I believe that Title 18, section 2251 covers that problem.

In the past there have been numerous prosecutions, I think, prior to the passages of this Act.

In 1995 a member of the Department of Justice testified before the Senate committee that heard evidence about this statute and indicated that there had been a conviction rate of over 97 percent in cases that had been brought against people for the possession or dissemination of material containing a depiction of a minor.

So that in fact has not been a problem in the past and apparently in this all in umbrella statute where they used any visual depiction, which in fact if you use the terminology any visual depiction it's not just limited to virtually indistinguishable--

Chief Justice Rehnquist: You have no problem then with the statute before it was amended.

Mr. Sirkin: --I have no problem, this is a new statute, 2251 and 2252 did exist.

Chief Justice Rehnquist: What did it do?

How did it change the law?

Mr. Sirkin: It used the terminology, it created a category of computer images that would be nonreal or other pictures or images that are nonreal and that are fictional characters into the act and it would be prohibited if disseminated or possessed.

Chief Justice Rehnquist: So, well, whatever was going to be threatened in the way of free expression and so forth under the new act was simply computer images of things that were already prohibited if done by real people?

Mr. Sirkin: No it did not, it included, it said any visual depiction, that would include that could be considered cartoons, illustrations, drawings, paintings.

Chief Justice Rehnquist: If the statute is construed to be, say, virtually indistinguishable then I think cartoons would not be covered.

Mr. Sirkin: But the problem is it would still suffer from the vagueness because what would happen is that in fact I had a computer image of a fictional character I'd never have a defense because I could not come forward and prove that that fictional character was over 18.

So if someone believed--

Chief Justice Rehnquist: That seems way out at the fringes somewhat.

Mr. Sirkin: --Well but that leaves it to the discretion.

It may be that the current administration may not enforce this language but down the road nobody knows what will happen.

Chief Justice Rehnquist: You could cross that bridge when you come to it then.

Mr. Sirkin: Well, I believe when you begin to talk about First Amendment rights to put it on to a case by case basis I think you are abridging, you know, a fundamental right and I think that in addition to that you have the problem that if I get charged you're not just being charged with a violation of an obscenity law, you're being accused of being a child pornographer and that does have some connotation and that has some ill effects just from the fact of being charged.

And I would have no defense.

Justice O'Connor: Well, does it cover things beyond obscene speech?

Mr. Sirkin: Well--

Justice O'Connor: In your view.

Mr. Sirkin: --In this it does, it would cover, you know, the morphing situation--

Justice O'Connor: Excuse me?

Mr. Sirkin: --I'm using the term morphing where you use an identifiable and you can merge it in on the computer to, you know, into similar--

Justice O'Connor: Images of obscenity.

Mr. Sirkin: --That's correct, or of a sexual act--

Justice O'Connor: That is the expansion, is covering images of obscenity.

Mr. Sirkin: --Well, it would be images, it would be copying images of obscenity with an identifiable individual or in sexual conduct and that is harm to a real child because that person is an identifiable child and that becomes a permanent record.

Justice O'Connor: But does it cover depictions of something more than obscenity?

Mr. Sirkin: Well, when you use the terminology simulated sexual activity it would, you know, it depends, I guess that goes community to community.

But what you have is like in the movie Trafficking where you have a young lady under a cover with a man on top of her, you only see their heads but, you know, the simulated means the appearance of, and that in fact does give the appearance and, you know, in that situation it is a representation in the movie that that person is under the age of 18--

Justice Scalia: Don't you think the statute can reasonably be read giving the definition of the activities covered not to cover two people under a bed with no depiction of sexual organs or anything else.

Mr. Sirkin: --The problem is, is that the statute uses the term actual sexual activity and/or simulated, and again--

Justice Scalia: It depends on what you mean by sexual activity.

If it's just a depiction without any indication of the sexual organs it's certainly reasonable to say that that isn't covered.

Mr. Sirkin: --But that's not what the statute says, though.

Justice Kennedy: Well, the statute does say explicit.

Doesn't that cover what Justice Scalia--

Mr. Sirkin: No it doesn't, because it says explicit sexual conduct, actual or simulated and I guess it depends on how you read that word simulated.

Justice Kennedy: --You say explicit.

What work does the term explicit do?

Mr. Sirkin: It means clearly and again clearly would mean to me that if it appears that they're under the blanket and that's what they're doing I think it's a reasonable inference to be made and I think that it would cover that as simulated activity.

Chief Justice Rehnquist: But explicit certainly can mean something different than clearly.

Mr. Sirkin: It can, but it's not defined in the statute.

They could have gotten rid of the word simulated.

Chief Justice Rehnquist: Then maybe the courts will define it so that it wouldn't cover the kind of thing you're talking about.

Justice Stevens: It is defined in the statute, sexually explicit conduct that was in quotes means actual or simulated sexual intercourse.

Mr. Sirkin: And some other things, and it uses masturbation and--

Justice Stevens: It includes sexual intercourse, it seems to me it's sexual intercourse whether you see the entire body or only part of it.

Mr. Sirkin: --I agree with Your Honor that it would be simulated if they're under the blanket and you see the heads.

Justice Ginsburg: I think the question is whether you could, a court could say well, to keep this within constitutional bounds we will read into the statute this broad requirement that there be an actual showing of sexual organs.

Mr. Sirkin: You know, legislatures write statutes, I think the courts interpret them and I think to construe it you'd be basically rewriting the statute if you did that, if you eliminated that terminology and I don't think the government has urged that.

Justice Stevens: Am I not correct in remembering that one of the amendments to this series of statutes by Congress specifically eliminated the requirement of patently offensive and the like?

Mr. Sirkin: They've done that in the child pornography area a long time ago.

They did that in Ferber when they said that it, just if it merely is children involved in sexual activity it's a violation of the law and it's not subject to the three-prong test of Miller and the patently offensive is a part of the Miller test.

Justice O'Connor: Do you have any examples of the use of computer generated images covered by this statute where it has serious literary or educational value or scientific value?

Mr. Sirkin: Well--

Justice O'Connor: Do we have examples of that?

Mr. Sirkin: --Today I don't know that we have examples today of that.

I mean, I would think that if we convert the videos and the films that are being made today into DVD, those are, that's a computer, digital computer--

Justice O'Connor: Because your concern is with the expansion to these images of things that are already prohibited and yet I don't think we have examples of any serious use of them in--

Mr. Sirkin: --Well, if I--

Justice O'Connor: --areas which would be of concern.

The examples that we've talked about today and that I think you've identified seem to be of films using youthful adults.

Mr. Sirkin: --Well, that would be correct but I think it's not, you know, too in the distant future that we will be making films that will be virtual reality.

Justice Breyer: But they're their strongest argument is... I mean, I thought their argument is you're right, those things you're talking about are not covered.

They're not covered today because everybody knows they're not really under the age of 18, the actors.

And tomorrow if we have a new system we'll worry about it tomorrow on a case by case basis.

Maybe all they'd have to do is put on the top these are not real, I don't know what they'd have to do, but they're so few and far between that we shouldn't strike the statute down on its face.

Now that's why I think people are asking you for particular examples because if you have to make up an imaginary example that doesn't really exist then maybe the correct thing to do is say the statute shouldn't be struck down on its face and we'll proceed case by case as a reasonable literary or scientific virtue to a particular thing.

Of course the person can't be convicted.

Now that's case by case.

I'm putting what I take it is their argument here.

Mr. Sirkin: But the problem with that is it creates a chilling effect because who's going to take the chance?

I mean that's it, if the government says if it's close to the line I think the petitioners have indicated in their brief that if it's close to the line then just don't do it, you know, don't publish it, don't make it, and that's censorship.

Justice Breyer: What about the other argument which is look, we're trying to protect the real children who are the subjects of the film and the reason we need this to protect them is because there is no way for any expert or anyone else to say when they see a film whether this is a film of a real person or whether it is a fake film made through virtual technology.

The experts just can't tell us.

Mr. Sirkin: Well, I think that becomes, you know, an excuse.

Justice Breyer: Is it true?

Mr. Sirkin: It is not true.

Justice Breyer: All right.

You think it is not true, they think it is true.

Is there somewhere in the record I could look or some place I could find out as to what experts think?

Mr. Sirkin: Yes, because I think you can look at the Senate hearing report where it's indicated that in 1995 in relation to cases that were brought there was a conviction rate of 97.6 percent.

In addition to that, that since the enactment of this law the government has not lost a case and it was raised in the Kimbrough case and it was raised in the Fox case, they were able to get a conviction.

Justice Scalia: You say the congressional finding is wrong then because the statute begins with, among other findings, new photographic and computer imaging technologies make it possible to produce by electronic, mechanical or other means visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images.

You say that that congressional finding is wrong?

Mr. Sirkin: That congressional finding, I don't think it was empirically, there was no empirical evidence that was really shown to Congress that that is correct, that the computer, and I believe, and I think it's clear--

Justice Scalia: So you have both your opponent and the Congress who think you're wrong on this point.

Mr. Sirkin: --Yes.

Justice Breyer: Okay.

But your point still is, I take it is, even if in fact the Congress is correct on that, there's no evidence that cases are being lost because of this virtual indistinguishability problem, cases involving real children.

Mr. Sirkin: That's correct.

And I believe if you want to make it easier for the government to make convictions I think that we could get rid of the Bill of Rights and it would be much easier for the government then to get convictions.

Justice Scalia: Mr. Clement gave an example of another case in which the government did obtain a conviction but only because of the new statute in which the government witness was unable to say.

Mr. Sirkin: That was that government witness.

That doesn't mean that there are not witnesses out there and experts that can make that distinction that if, you know, there clearly would be, pardon?

Justice Scalia: This was just a bad government witness, you say?

Mr. Sirkin: It could have been.

I didn't hear the testimony in that case but they did in fact get a conviction in that case.

But I think it's equally as dangerous to create a barrier to First Amendment.

Justice Scalia: Wouldn't have gotten a conviction if the law had been what you want it to be, isn't that right?

Mr. Sirkin: We don't know they wouldn't have gotten a conviction with that... the testimony in that case was that the expert indicated that he was not sure and could not positively say whether it was real or not real.

Justice Scalia: And on that basis can you find beyond a reasonable doubt that it was a depiction of an actual minor.

Mr. Sirkin: It creates an inference and a jury can draw inferences from the evidence.

Justice Ginsburg: Suppose the law put the burden on you, on the defendant to show that this depiction does not use an actual child.

The defendant, because of this proof problem, is not brought out, the confusion is it a real child, is it a simulation.

Suppose it were made the defendant's burden to show that no actual child was used in this picture, would you have a constitutional objection to that?

Mr. Sirkin: Yes, I would.

And the reason being is that at least in the possession area that is not an affirmative defense because all it has to be in the affirmative defense, there is no, the element of age, of being able to come forward and show that it's not a real child or that it's underage is not available--

Justice Souter: Okay, let's assume that that too was fixed.

Those two features, Justice Ginsburg's and the inclusion of the possession is subject to the defense, would the statute then be constitutional?

Mr. Sirkin: --I, the possessor though, you'd be switching the burden of proof then I believe and I think that would be an unconstitutional shifting of the burden.

Justice Souter: Well, you'd be making, you be... are you saying that the affirmative defense therefore is, in effect, has got to be constitutionally relevant across the board?

Mr. Sirkin: I believe that it is.

I think the affirmative defense that's in this statute is unconstitutional.

Justice Souter: So there's no way to tailor it by affirmative defense in effect is your argument.

Mr. Sirkin: That's correct.

Justice Scalia: And how would that affirmative defense prevent some of the evils that the government is trying to prevent, for example the seduction of minors to sexual conduct by showing things that appear to be minors?

How would this, affirm... the existence of this affirmative defense still enable the government to do that?

Mr. Sirkin: There are currently, there are currently lots of laws that deal with anyone who attempts to entice a child and I believe that those laws could be enforced and I believe that the penalties could be increased and that could be a deterrent effect on that.

We're talking about the use of this material potentially by a very small segment of the population and I think it affects--

Chief Justice Rehnquist: Well, you could say the same thing about a murder statute, you know, you don't expect a whole lot of people to go out and commit murders but that doesn't mean Congress can't legislate against it.

Mr. Sirkin: --But here you can't legislate that if it's not, if it's a virtual murder and there has been no murder, you don't go out and arrest people.

Here if you use a virtual, a fictional character you can go out and arrest people.

Justice Scalia: Well, if you want to talk about a very small portion of the population I would think there's a very small portion of the population that wants either to produce or to watch adolescents and children engaging in sexual conduct of the sort described in this statute.

You're dealing with a small portion of the population to begin with.

Mr. Sirkin: But if you use the principle that's involved here then I do believe you begin the slippery slope.

You go from the idea you can use this and expand it, you can use it, you know, that if you have depictions such as, you know, the movie the Godfather, the movie Pulp Fiction which are cult, you know, movies that are attractive to children, someone could come out and say, hey, look, join my gang, look how much fun it can be if we go out and become extremely violent.

Justice Breyer: What's worrying me about what you're saying now is that if their factual hypothesis is true, which I tend to doubt, but I'm not an expert, that there is no technical way to distinguish between a photograph of a real child and an imaginary child, if it were true, there is no expert who could tell you the difference and you tell me I can not have an affirmative defense, then the government cannot prosecute real child pornography.

Mr. Sirkin: I think they can--

Justice Breyer: Because there would be no way to prove beyond a reasonable doubt that it was a real child.

So if you deny the government the possibility of the affirmative defense weapon you are denying them the possibility of prosecuting real child pornography.

Mr. Sirkin: --That's not correct because they've been able to get convictions and they've gone forward and they've gotten convictions.

Justice Breyer: Well, presumably people think that it is possible to distinguish between the real child and the virtual fake.

Mr. Sirkin: But I don't believe, you know, at least currently they've not lost any of the cases and there's only been the one where someone has raised the issue and that expert had indicated that they weren't sure.

Justice Breyer: I think what you're doing is in effect varying the question, you're saying, look, in the real world it doesn't happen, they can tell.

But if you assume the hypothesis that Justice Breyer started with, the factual hypothesis that if these are well enough made you can't tell the difference, then doesn't it follow that if you rule out the affirmative defense route for the government, the government simply won't be able to prove the case in the instances in which real children are being used.

Mr. Sirkin: I'm going to go back and I'm not begging the question, again, if I have, if there is virtual murder that looks so real on the screen, I don't go out and charge anyone with murder.

Justice Scalia: Well, we can distinguish attraction to other forms of socially damaging behavior from that particular category of social... socially damaging behavior that has for hundreds of years been treated as obscenity.

I don't think there's any risk of the Court suddenly declaring that excessive violence constituted obscenity.

We know what obscenity is.

There have been laws against this particularly infectious kind of solicitation to conduct for centuries.

I don't know why you think we're going to suddenly flop over into prohibiting the Godfather because that also portrays socially undesirable conduct.

Mr. Sirkin: If you take the logic that's behind here about people, you're getting at the person who is misusing the material and there certainly I think is, you can't even do medical--

Justice Scalia: Sexual material in a category called obscenity which has traditionally for hundreds of years been regulable by government.

Mr. Sirkin: --But the obscenity here we're making just because it's a fictional character visually participating in an activity that I can write about, we're now saying you cannot express, that we're saying, we're giving it a social status, and I think when we start to do that then we start to eliminate, we can start eliminating other areas equally.

I further believe that, you know, as I've indicated, that the affirmative defense seems to be inadequate.

It certainly does not cover the individual possession and that individual is in a position where if he has three images, if he gets a DVD movie and he takes, and it has more than three images in it, he's now, you know, can be prosecuted for possession of child pornography.

And, again, with the definition, when you put it together with the definition of simulated.

I think that it is not narrowly tailored, it is overly broad because I think, again, it covers literary material, it carries certainly for medical research, one cannot, there is no bona fide exception here for medical, scientific or educational or artistic merit, it's a blanket across the board prohibition.

I believe the Court clearly indicated in Ferber--

Justice Ginsburg: But what if we accept the government's limiting construction, the government is urging that we use this, take the congressional finding, read it into the text of the statute and then it would cut out all the good things.

Mr. Sirkin: --I believe that the Court has indicated in the past in Turner Broadcasting and in the landmark communications case that it's not for the Court to be rewriting statutes as they come out of Congress and particularly in the area when it deals in areas of First Amendment.

And I think that the Act, you know, and what we're proposing here--

Justice Ginsburg: Supposing that... suppose we could consult Congress, they would say yeah, preserve as much of this as is constitutional.

We wanted to do a whole lot but if the constitution only allows us to do a little we'd rather have the Court say that than to throw out our entire product.

Mr. Sirkin: --All we're asking is, is the Court sever out two phrases and that is that is, is it appears to be and that it, you know, and where it conveys the impression that a minor is engaged in sexual activity.

Chief Justice Rehnquist: Well, in X-Citement Video we did something not too different from this, reading in a requirement that wasn't express in the statute.

Mr. Sirkin: You did read in the elements of knowingly and you have to do that.

Basically the government is doing the same thing in this particular statute because the knowingly appears in this statute exactly as it appeared in the statute that was interpreted by the Court in X-Citement Video.

It says knowingly in relation to mailing or to transporting, it doesn't say knowing as to the knowledge of the particular minority.

Chief Justice Rehnquist: But that's an example of a case where there was a First Amendment challenge where we have read something into a statute that we might not necessarily have done.

Mr. Sirkin: The Court has the power to do that.

Chief Justice Rehnquist: And there's precedent for our doing it.

Mr. Sirkin: Yes, in X-Citement Video the Court did do that.

But we're urging here that the fact is that the Ferber and Osborne were based upon the harm to real children and we're now limiting something because of the message.

We are socially making a determination here that this is speech we don't like.

Justice Kennedy: Are you saying that if real children are not used in the depiction of simulated sexual activity that it cannot be barred unless it meets the Miller standard?

Mr. Sirkin: Yes.

It would mean--

Justice Kennedy: Eight year olds, ten year olds, twelve year olds.

Mr. Sirkin: --They're fictional characters, because I think they do have a valid use in medical research.

Justice Breyer: Suppose you said... suppose you said... suppose I... I don't know how I'd do it, suppose I could draft a statute which had a medical research exemption.

Mr. Sirkin: It would make it narrower.

Justice Kennedy: Would it be constitutional?

Mr. Sirkin: Again, I'd have to see the whole statute and, again, I think that it would depend on how it works and whether it still had the problems with the affirmative defense.

Justice Breyer: Suppose you took... I just want to follow up on what Justice Kennedy said.

Suppose you took Miller and said where you have clearly minors we as a matter of law assume that it's patently offensive.

Mr. Sirkin: That could be done.

Justice Breyer: That could be done, you'd still have the other two parts.

Mr. Sirkin: Yes, and I think that most communities would feel, I think that all communities would feel that that is patently offensive.

Justice Breyer: I wonder if Miller would work more satisfactorily if you did that in the case of people who clearly appear to be minors.

Mr. Sirkin: I believe that it would.

Justice Breyer: You think it would.

Mr. Sirkin: Thank you.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Thank you Mr. Sirkin, Mr. Clement you have one minute remaining.

Mr. Clement: Thank you Mr. Chief Justice.

Counsel for Respondent notes the 97 percent conviction figure.

Well, that reflects a couple of things.

One, it reflects that the 1996 Act has allowed us to prosecute cases even where there is a reasonable doubt about whether it is a virtual image or not.

The other thing that the 97 percent conviction rate reflects is that we are not out there prosecuting people who pick up Traffic at the Blockbuster.

It's no accident that the one court that considered this case in a facial challenge struck the statute down, but the four courts of appeals that considered it in an as applied challenge upheld the statute.

Those cases give you an illustration of what the statute is really applied to.

The Mento case involved over 100 images of prepubescent children.

The Acheson case in the 11th Circuit--

Justice Kennedy: Is there any precedent that we judge a free speech statute based on the kind of prosecutions the government has been bringing?

Mr. Clement: --There is precedent and the best one I can think of is Ferber for waiting until as applied challenges to deal with the fringe cases, the tiny fraction cases.

And I think, as in Ferber, if you wait for those cases to be brought you'll find that they are not brought in these cases.

Another point I think worth emphasizing is that I don't think given that this statute only covers explicit sexual conduct that there'll be much medical research involved.

Chief Justice Rehnquist: Thank you, Mr. Clement.

The case is submitted.

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Reno v. ACLU - Oral Argument

Fri, 09 Jan 2009 14:50:09 +0000

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Reno v. ACLU

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96-511_19970319-argument.mp3

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Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument next in Number 96-511, Janet Reno v. The American Civil Liberties Union.

Mr. Waxman and Mr. Ennis, I would like to tell both of you before you start your argument that each counsel will be allowed 35 minutes instead of the usual 30 in this case.

You may proceed.

Mr. Waxman: Thank you.

Mr. Chief Justice and may it please the Court:

The Internet is a revolutionary advance in information technology.

It also provides a revolutionary means for displaying patently offensive, sexually explicit material to children in the privacy of their homes.

With as many as 8,000 sexually explicit sites on the World Wide Web alone at the time of the hearing, and the number estimated to double every 9 months, the Internet threatens to render irrelevant all prior efforts to protect children from indecent material.

All of the laws regulating the display of indecent materials in theaters and book stores, on radio, TV, cable, and telephone, all of these approach insignificance when the Internet threatens to give every child with access to a connected computer a free pass into the equivalent of every adult bookstore and video store in the country.

Congress debated for a year-and-a-half before enacting the Communications Decency Act which, as we explain in our brief, contains three distinct provisions.

Let me go right to the broadest one, which prohibits the display of patently offensive material

"in a manner available to a person under 18 years of age. "

When read together with the statutory--

Chief Justice Rehnquist: That is (d)(1)(A)?

Mr. Waxman: --That is (d)(1)(B).

Chief Justice Rehnquist: (d)(1)(B).

Thank you.

Mr. Waxman: When read together with the statutory defenses, this provision permits persons to post indecent material on the Internet so long as they take reasonably effective steps not to expose it to children.

The district court found that on the World Wide Web, where most of the material that concerned Congress is posted, it is technologically feasible for speakers to screen for age, and on commercial sites that is commonly done.

Even as to noncommercial sites, the evidence showed that the technology exists, and is operating, to provide adults with a verification code that allows them to access adult-only sites at no cost to those who post information on those sites.

Justice O'Connor: Mr. Waxman, does that technology require use of something called CGI--

Mr. Waxman: It does--

Justice O'Connor: --in order to screen it out, in effect?

Is that the mechanism by which that can be done?

Mr. Waxman: --The... Justice O'Connor, the mechanism by which a Web site can screen for age, or a particular page, or indecent material on a Web site could screen for age is, or at least at the time of the hearing was by the use of something called CGI script.

But the obtaining of an adult ID is something that the unrebutted evidence showed was a service that even at the time of the hearing, without the benefit of the Communications Decency Act in effect, an adult, somebody over 18 who wanted to view patently offensive material on a screen site could, for $5 a year, obtain an adult identification that would give that person access to any and all adult sites, and--

Justice Scalia: Of course, the problem is not at that end.

It is at the other end.

How can a person putting material out in the system assure that it's only going to be accessible by somebody with that code?

Mr. Waxman: --Exactly, and what the record... what the district court found as fact was that on the World Wide Web it is technologically feasible and economically feasible, either by use of a credit card, which is more expensive, or by requiring the punching in of an adult ID code that is available from a third party for as little as $5 a year, to get access, but the technology on the World Wide Web exists to display this.

Justice O'Connor: Well, how does that fit in with use of Web sites by noncommercial users, or just private individuals or libraries, or something of that kind?

Mr. Waxman: Do you mean use, that is that they want to view material, or use that they want to post indecent material?

Justice O'Connor: Both.

Mr. Waxman: Okay.

Justice O'Connor: I mean, the library wants to have material on its Web site which might be viewed as indecent, I guess.

We're not talking about obscene material--

Mr. Waxman: That's right.

Justice O'Connor: --are we?

Mr. Waxman: That's right.

Let--

Justice O'Connor: We're talking about some other category of material.

Mr. Waxman: --Let me address the example of the library.

Justice O'Connor: And while you're at it, I want you to tell me how... what percentage of Web sites are incapable of using this CGI script, do you think?

Mr. Waxman: Okay.

Let me--

Justice O'Connor: Not all of them can use it, and so I--

Mr. Waxman: --Well, let me answer your second question first and then go to your library example, but the testimony in the record before the district court was that on... for certain third party access providers like America Online and CompuServe, which allow customers to create their own Web sites for free, they do not currently have CGI software, so for example I, I am a member of America Online.

If I want to create my own Web page I have to go to somebody else.

There are hundreds, if not thousands of servers that you can go to to create a Web page.

I would have to write my own Web page on something other than America Online, or of course America Online could simply adopt CGI script, which at the time of the hearing at least it had chosen not to do.

Now, as to the library, the Carnegie Library is an appellee in this case, and it is a very good example of what we think represents the overblown nature of the challenge to this act.

The library wants to do two things.

It wants to put its card catalogue on line so that anybody anywhere in the country can see what it is that the Carnegie Library has, and it also wants to put on line journals and abstracts that it in turn receives on line in an electric form.

Now, the definition, the accepted definition of what is patently offensive, that is a term of art.

It is very narrow, and it is exceedingly difficult to see how it would apply to more than a handful of cards in a card catalogue, but to the extent that it does, you can simply run it through some sort of word processor or computer program to screen... it's only text, after all, on cards, and if you find a card that--

Justice Ginsburg: --Mr. Waxman, may I ask you to go back to the first point that you were answering, because I'm puzzled.

I thought the district court found as a fact... and this is at 929 F. Supp. 846 to847... found as a fact that noncommercialorganizations particularly would find age verification prohibitivelyexpensive and that indeed, in the Shea case, that same fact-findingwas made.

Mr. Waxman: --That is correct, and we do not think that that finding, as we read it, Justice Ginsburg, is either clearly in error or in error at all.

What the court found, though, was that for noncommercial Web sites... that is, people who aren't businesses that want to post speech on the World Wide Web... it would be prohibitively expensive to create their own adult validation system.

That is the finding that the court made on page 55a of the Joint Appendix.

I do not have the F. 2d site, but that was not the only... or F. Supp. site.

Sorry.

That was not the only other alternative.

We put on... in response to their claim that the Communications Decency Act acts as a ban, we put on evidence showing that even prior... even before the CBA came into effect there were third party entities that on line would provide any adult with an adult number for a fee of between $5 and $9.95 a year, at no cost to the person who wants to create their own Web site and put indecent material on it, which would allow you to go to any of those Web sites, or any of those pages, punch in your number and get access to it, and there was... that evidence is unrebutted on the record.

So while we don't challenge the court's findings that if people like you or I wanted to post our... or nonprofit organizations wanted to create their own adult verification system it would be unduly expensive, we do challenge the adequacy of that finding to support the conclusion that this statute is unconstitutional on its face.

Justice Stevens: --May I ask you just for a little more clarification about your specific example of the Carnegie--

Mr. Waxman: Yes.

Justice Stevens: --the library posting a card that they know would violate the statute if it is read by an... 17-year-old.

Now, what does this software do exactly, that you are describing?

It identifies all the adult people who have access to adult material.

That means that anybody who does not have that cannot see it?

Mr. Waxman: What the... Justice Stevens, what the... if the library found that there were any library cards that contained material that could be deemed patently offensive, they would take the--

Justice Stevens: Let's assume they know something would be, so it--

Mr. Waxman: --Okay.

Let's assume there's that.

If they had that, what they would do is, with respect to those cards, or those journals that they know to be patently offensive, they would put them in a little section of their Web site in which to get access to it.

If you want to see... we have certain other cards--

Justice Stevens: --So that everyone who does not have the adult identification equipment, whatever it is, those people just don't see it.

Mr. Waxman: --That's right.

Justice Stevens: So that in order to get access to that if you're a viewer, you have to do whatever's necessary to become an identified adult.

Mr. Waxman: That's right.

It's the exact analogy to what may very well happen to the Carnegie Library itself in Pittsburgh.

Justice Stevens: What if--

Mr. Waxman: Pittsburgh may have an ordinance that requires that patently offensive material be kept--

Justice Stevens: --What if an identified--

Mr. Waxman: --in a different room and supervised.

Justice Stevens: --What if an identified adult wrote the library a letter and said, I have the adult stuff, but I have a 17-year-old son that I'm going to have watch this with me.

What should they do?

Mr. Waxman: Well, the act does not make illegal the provision to adults of this material.

If a father or mother--

Justice Stevens: They would know there's a 17-year-old the audience.

Mr. Waxman: --If... well, I think here it depends a little on the mode of communication.

If I... if you ask me to send you an indecent E-mail, and you tell me that your son is sitting right next to you and is going to read it--

Justice Stevens: No, but my motive is that I'm Anthony Comstock, and I don't want this stuff to go out, so I'm telling you I've got a 17-year-old son who's going to help me police the airwaves.

Mr. Waxman: --Then I... then under the specific child and transmission provisions as well as the display provision, you could not send it, but there is nothing to... there is nothing in this act that in any way gets in the way of adult-to-adult communication.

I may very well find that my 16-year-old son in my judgment, in my responsibilities rearing my child, should be able to see material that a jury would find patently offensive, and I can certainly do that.

Justice Scalia: You're saying that any adult has a heckler's veto on the whole operation by simply saying I'm going to let my child watch it?

Mr. Waxman: Oh, no.

No, no.

Absolutely not.

Justice Scalia: Well--

Mr. Waxman: The only thing that is prohibited under... if I can separate out the provisions, under the two more specific provisions, what we call the transmission and specific child provision, they only apply to transmissions where you know that the recipient, or a recipient is a child.

If you don't know that, actually know it, it doesn't apply.

Now, on the display provision--

Justice Scalia: --It's more than knowing it, isn't it?

You have to send it to a specific person under 18.

Mr. Waxman: --Yes.

Knowing--

Justice Scalia: And it seems to me if you're sending it to the adult and he says, by the way, I'm going to have a child watching, you're not sending it to the child.

Mr. Waxman: --That is--

Justice Scalia: You're sending it to the adult.

Mr. Waxman: --That is absolutely right.

Now, the... what becomes more problematic is the display provision, because it is broader.

Justice O'Connor: Yes.

Those two other provisions, as you interpret knowing, are virtually worthless as I understand it.

I mean, they're not going to accomplish much.

Mr. Waxman: They are actually very, very important to us in terms of our prosecutions of sexual predators.

Chief Justice Rehnquist: Which two provisions are you talking about?

Mr. Waxman: This is... I think it's (a)(1)(D), the--

Chief Justice Rehnquist: Transmission--

Mr. Waxman: --transmission provision, and (d)(1)(A), the specific transmission, the specific child provision.

They are really designed, Justice O'Connor, to get at the determined sexual predator.

Justice Breyer: --Well, is it the case under those provisions that... suppose a group of high school students decide to communicate across the Internet, and they want to tell each other about their sexual experiences, whether those are real or imagined.

They're all... every high school student who would do this is then guilty of a Federal crime, and subject to 2 years in prison?

Mr. Waxman: If high school... I mean, when you say they want to talk about their sexual experiences--

Justice Breyer: That's been known to happen in high school.

[Laughter]

Mr. Waxman: --I'm shocked to learn that there is gambling in this establishment.

[Laughter]

There is a big difference, Justice Breyer, between discussing sexual experiences and communications and speech that is patently offensive as that term of art has come to be understood.

Justice Breyer: Well, I mean, I even imagine high school students might read from, let's say, books or magazines that have what people might think of as patently offensive ways of describing those experiences.

If you get seven high school students on a telephone call, I bet that same thing happens from time to time.

Mr. Waxman: It may.

Justice Breyer: And so my concern is whether, analogizing this to the telephone, it would suddenly make large numbers of high school students across the country guilty of Federal crimes as they try to communicate to each other either singly or in groups.

That's one concern I have.

Mr. Waxman: If high school students, like anybody else, communicates what a jury would find and what this Court would establish, given its responsibility to create a constitutional floor to be patently offensive within the meaning of this statute, they would violate it, because the alternative--

Justice Scalia: There's no high school student exemption?

[Laughter]

Mr. Waxman: --Justice Scalia, you may find it in the legislative history, but it is not apparent on the face of the statute.

[Laughter]

Unknown Speaker: Wouldn't there then be a--

Mr. Waxman: My point, if I could just finish, Justice Breyer, there is something that is... there is a deadly serious point here, and that is that when the alternative is that every child in this country who has access to a computer and can click a mouse has access in his or her own bedroom or home or library to Hustler Magazine and Penthouse Magazine, and the kind of indecent speech that people sitting in the anonymity of their own bedrooms anywhere in the world or anywhere in the country wants to make available to them, we think that this is a small price to pay, and Congress could legitimately say that this is a narrowly tailored alternative.

Justice Breyer: --That's the--

Justice Kennedy: --I take it then that you would also defend the constitutionality of a statute which, tracking the words we have here, prohibited indecent conversations on a public street with minors present--

Mr. Waxman: I think that--

Justice Kennedy: --or between minors.

Mr. Waxman: --Well, I think that a municipality certainly could.

I think it is a harder case, but I think a municipality could make it a crime for an... for two adults to engage in patently offensive, sexually explicit communications in the presence of a minor child.

Justice Kennedy: Why is that a harder case?

It seems to me easier.

It's easier to verify.

Mr. Waxman: Oh, it's a harder--

Justice Kennedy: The presence of that minor.

Mr. Waxman: --It's a harder case because a public park is a... it's a free space.

It's an area where, unlike the Internet, speech is free, which--

Justice Kennedy: You're asking us to say that the Internet is not a public forum.

Mr. Waxman: --The Internet is... we don't think it is, but if it is, in any event it certainly is, like other public forums, subject to reasonable time, place, and manner restrictions.

Chief Justice Rehnquist: A public forum is something created by the Government, isn't it?

Mr. Waxman: Right.

Right.

We don't think it's a public forum, whereas a park would be, but let me... if I can just--

Justice O'Connor: Well, it's a pretty public place, though, because anyone with a computer can get on line--

Mr. Waxman: --Right, and... yes, and that is one--

Justice O'Connor: --and convey information and images, so it is much like--

Mr. Waxman: --It's one of the--

Justice O'Connor: --a street corner or a park, in a sense.

Mr. Waxman: --It's one of the wonderful things about it, and if I can just finish answering Justice Kennedy's question, you know, if a theater company wanted to put on a production at the Sylvan Theater on the National Mall that contained material that was patently offensive... I don't know what a current production would be, but assume that they did.

It would not be at all unreasonable or unlawful for the Park Service to say, you have got to screen for age.

You have got to require people to show adult ID.

You have got to cover the--

Justice Kennedy: But that's in the commercial context, and Justice Breyer's question and my following question pertained to people that don't have counsel, that aren't broadcasters or regular Net users which understand what the concepts of decency or indecency are in any institutional sense, and conversations between two minors, between a minor and an adult, between two adults on public streets and public places would all be prohibited, it seems to me, under your analysis in this case.

Mr. Waxman: --It's... I think the analogy here really is to Renton and Young.

This is really a zoning issue.

Let me give you an example.

Let's assume on the Mall--

Justice Scalia: May I suggest... before... it seems to me that the case that Justice Kennedy poses is a more difficult case, but isn't the reason that... I don't think people throughout the country are worried about their kids hanging around conversations going on on the public street.

Isn't the scope of the risk involved very much related to what the Government can do by way of avoiding that risk?

Mr. Waxman: --I don't think there's any question about it.

I mean, what Congress was faced with, and what the record below shows, if you look at the testimony of Mr. Schmidt, our expert, and the exhibit that he produced of the sites that he visited on one visit, the problem is very, very serious.

But even looking to the National Mall example, Justice Kennedy, if a park policeman finds somebody sitting on one of the benches on the National Mall making a speech with a bull horn or speaking in such a loud voice that it can be heard by others, and using patently offensive language, I don't think there's anything constitutionally impermissible with saying, sir, if you want to do that, there's a specific place on the Mall for that, or for $3 you can buy a cone of silence, and we'll put you in this little cone and you can talk to yourself.

Unknown Speaker: The point of my--

Mr. Waxman: And that's what this is about.

Justice Ginsburg: --Mr. Waxman, you know, there was once prevalent throughout this country a kind of ordinance that went like this.

It made it a misdemeanor to use offensive language in the presence of women and children.

I was wondering while you were speaking whether you were saying the assumption that those laws are no longer tenable would flunk the First Amendment, that that's not a correct assumption.

Mr. Waxman: Those laws, Justice Ginsburg, are distinguishable in two very fundamental ways, and it's critical, I think, to this case.

One, this Court has recognized that, as opposed to minors, there is a constitutional right to make indecent, patently offensive speech to adults, and insofar as this was trying to protect women from hearing such speech, that would be unconstitutional.

Secondly, the notion--

Justice Ginsburg: Well, let's take out women.

Just children.

Mr. Waxman: --Okay.

The notion in those laws... this is my second point... of what is offensive was I think subject to a very serious vagueness challenge.

What we have here is a definition of patently offensive material that is not vague, that has been held by this Court and the FCC and the lower courts not to be constitutionally vague, and we have set out at page 17 of our reply brief pretty much in haec verba what a jury would have to be instructed in determining whether something was patently offensive under their prevailing community standards.

And added onto that we also have now, in light of Miller, and Jenkins, and Hamling, and Ferber, this Court's unequivocal statement that in the area of patently offensive, where First... where there is a First Amendment implication on where the floor is drawn, the Court will and must draw a constitutional floor below which juries and legislatures can't go, so we have a standard here that has been accepted, and can be refined by this or other courts.

Justice Souter: Mr. Waxman, let me ask you another question more or less along the lines, I guess, of Justice Breyer's, who spoke of the high school students who might go to prison.

If we combine the display section and the knowingly permit section, I take it that a parent who allowed his computer, the computer that the parent owned, to be used by his child in viewing offensive material, indecent material, the parent would also go to prison, I take it.

Mr. Waxman: I don't see why that would... maybe I'm missing something--

Justice Souter: Well--

Mr. Waxman: --in the language, but it prohibits a transmission.

Justice Souter: --it's an offense to display the material, as I understand it under the display section, where minors will obtain it, and if a parent says I'm going to allow, knowingly allow my computer to be used by my child to observe these displays, isn't the parent therefore guilty of the knowing, under the knowingly permit section?

Mr. Waxman: I don't think so.

This is a statute that is self-consciously directed solely at the content provider, the person who is putting--

Justice Souter: No, but this isn't a content provider.

Mr. Waxman: --information on the World Wide Web.

Justice Souter: It's a person who knowingly permits a device under his control to be used in effect to accomplish or facilitate any of these other offenses, and one of the offenses is the display offenses, and if the parent says, my computer can be used, in effect, to complete this display offense, because I'm going to let my child view it--

Mr. Waxman: I see your point.

I--

Justice Souter: --why isn't a parent guilty?

Mr. Waxman: --Well, you're referring here... I now understand.

You're referring here to a separate... a provision separate from the three provisions that are at issue in this case.

That is, (c)... I can't remember.

In any event, the knowing permission provision.

It's number--

Justice Ginsburg: (d)(2), and according to the three-judge district court--

Mr. Waxman: --Yes, (d)(2).

Justice Ginsburg: --plaintiffs also challenged those provisions.

Mr. Waxman: Well, we think... we think that in order to... if necessary to save the constitutionality of that provision, this Court certainly could exempt the provision of this material for parents.

I mean, one of the major--

Justice Souter: How... you mean under the... by severance.

Mr. Waxman: --Well--

Justice Souter: Under severability?

Mr. Waxman: --Well, you can call it a--

Justice Souter: Wouldn't that be unconstitutional?

Mr. Waxman: --If you found it would be unconstitutional... I can think of instances in which it might actually constitute child abuse, which this Court's--

Justice Souter: I take it you agree that the parent would be guilty under that section.

Mr. Waxman: --I think it depends on the way you construe it.

This Court has the power and the authority in dealing with a statute which is either arguably vague, or arguably overbroad, to construe it or to partially invalidate provisions or applications to save the constitutionality.

That's--

Justice Souter: How could I construe it more narrowly than my hypothesis?

Mr. Waxman: --You could--

Justice Souter: What do you have in mind?

Mr. Waxman: --You could certainly construe it to exclude parents.

You could certainly say--

Justice Souter: That would just be grabbing a limitation out of thin air.

Mr. Waxman: --It wouldn't any more be grabbing it out of--

Unknown Speaker: Exclude parents--

Mr. Waxman: --Let me just say, it wouldn't, because there's a very clear record before Congress that what Congress was concerned about was not protecting children from their parents, but protecting children and their parents from the children getting access to material that the children--

Justice Souter: --I could view this but Justice Scalia couldn't.

Mr. Waxman: --No, I think Justice--

[Laughter]

Justice Scalia could and would, because--

[Laughter]

I didn't say will.

[Laughter]

If you look at cases that this Court has decided with respect to overbreadth, this would be, I suppose, an overbreadth challenge that it includes parents, or doesn't exclude parents.

Justice Souter: Well, I--

Mr. Waxman: This Court would--

Justice Souter: --At this point it's an overbreadth... I suppose it's an overbreadth challenge when you say well, it's interfering... not as a matter of overbreadth.

It's interfering with the relationship between parent and child.

Mr. Waxman: --Yes, and you could do exactly what you did, for example, in United States v. Grace, where there was a criminal prosecution for demonstrating on the sidewalk in front of the Supreme Court.

The statute defined the Supreme Court grounds literally by metes and bounds.

Justice Souter: Would I--

Mr. Waxman: There was no exclusion for sidewalks.

Justice Souter: --Excuse me.

Would I have to do that in order to save the statute?

Mr. Waxman: I don't think so.

Justice Souter: Why?

Mr. Waxman: Well, I think... because I think as a practical matter it is so clear that this does not cover what a parent shows a child in the absence of true abuse, which is separately actionable.

Justice Kennedy: Well, but it's not clear that it doesn't cover the coffee shop owner who has a computer network, or a teacher, or a high school librarian who under her supervision, or his supervision allows this material to be accessed.

Mr. Waxman: If you think that it is necessary to save the (d)(2) provision from an overbreadth challenge, you should construe it, you must construe it in a manner that saves it as to those applications.

Justice O'Connor: Could we talk about the defense clauses for a moment?

Mr. Waxman: Sure.

Justice O'Connor: And does the Government accept that it is a defense under the act if a parent or any owner or user of a computer buys some of this software that is designed to screen out indecent speech?

Mr. Waxman: Well, it... would it be a defense to the prosecution of the person who provided the content on the Internet?

Justice O'Connor: Yes.

I mean, I would be charged presumably under the display provision as... for putting on some kind of indecent speech under your theory.

Now, is it a defense that there are these programs and software to prevent the use of it?

Mr. Waxman: It--

Justice O'Connor: And how about the parent who lets the child use the machine--

Mr. Waxman: --Thank you, Justice O'Connor--

Justice O'Connor: --that buys the software to screen it out?

Mr. Waxman: --The district court... the district court in this case did not find, and properly so, that the purported... that this purported solution that the appellees have offered, these parental control software programs like SurfWatch, are an effective alternative.

It didn't find that, and the reason is that with hundreds of thousands of Web sites and tens of millions of pages that can be discretely accessed, and with the number of sites increasing so rapidly, and the ability to change the name of the site so easy, there is simply no way that companies like SurfWatch or parents can keep up with what can and can't be screened out, and even if they could, with computers in libraries and community centers and schools, it is not an effective alternative as matters currently stand.

Now--

Justice Scalia: What about tagging, Mr. Waxman?

Why wouldn't it be adequate to meet the problem that is concerned about for Congress to say, you'll have a complete defense so long as you tag it?

Mr. Waxman: --Well--

Justice Scalia: And we'll establish a system.

XXX means that it contains the kind of material that would violate this act, and therefore so long as you put XXX on it, you'll be safe.

Mr. Waxman: --In the... Justice Scalia, in the absence of a regime in which there is a universal tag... that is, everybody knows and everybody uses, and--

Justice Scalia: Congress could do that.

Mr. Waxman: --Okay, and software that is available on all machines that are sold as a default mode to screen under that tag--

Justice Scalia: But that would be pretty easy if they were tagged.

Mr. Waxman: --Congress... that would essentially be the mandated V-chip option.

Justice Scalia: Right.

Mr. Waxman: And it would be better than what we have now, but it would not be either more effective or less restrictive than the Communications Decency Act.

Unlike television, we're not talking about a handful of broadcasters here who have their own lawyers and their own advertisers and other restraints on speech, and we're also not talking... we're talking about millions and millions and millions of people who are putting speech on, and that's where the burden has to be put, and on the other hand, we're also not talking about television sets.

Justice Breyer: But we are... might be talking about telephones, which was the point of my example with the children.

Can Congress suddenly decide that all private telephone conversations will be monitored to see if there is indecent material going across the telephone that children will knowingly pick up?

That was my concern.

Mr. Waxman: I think the answer is no.

Justice Breyer: If the answer is no, then how does this differ, because the Internet after all is, in addition to being a little bit like a common, is very much like a telephone?

Mr. Waxman: The difference... the regime you've hypothesized is one in which all telephone calls between all people in the United States would be monitored.

Justice Breyer: No, what you'd have is an analogous statute that applied to the telephone so that when the high school students get on the phone and talk about their experiences, suddenly that all becomes a crime, and it suddenly looks a little bit worse from a First Amendment point of view--

Mr. Waxman: It does.

Justice Breyer: --if what you're talking about is the telephone.

Mr. Waxman: It does.

Justice Breyer: But the Internet is rather like the telephone.

Mr. Waxman: I have to disagree with your last statement.

It looks a little bit... it looks a lot different, because on the telephone you are not displaying graphic images.

You are not talking about a medium which, once it's placed on a computer by anybody, anywhere, is available to everybody everywhere.

You're talking about discrete communications--

Unknown Speaker: The question here is overbreadth.

Mr. Waxman: --and it would be hard... if I can just finish, it would be much harder for Congress to demonstrate and I don't think Congress believes that there's a compelling interest, because of those differences, in doing so.

You know, in the face of the problem, in the face of this serious problem, I need to focus just for a minute on what the district court did.

The district court threw up its hands and struck down a statute without attempting to narrow it, without attempting to make it more specific, and most significantly, without finding that any more narrowly tailored, constitutionally acceptable solution exists.

That is error of law of the first order.

Justice Ginsburg: Mr. Waxman, the district court was concerned about legislating.

You know, it would be one thing if you could just say, take out this sentence, or take out this section, but just the kind of thing you describe with respect to the parent, that's a lot.

That kind of tinkering courts don't do.

Mr. Waxman: Justice Ginsburg, all I can say is that... I mean, I could rattle off the name of a dozen or two dozen cases in which this Court in either the overbreadth context of the vagueness context has done just that even without a severability clause, and when there is a severability clause that includes the language of applications as well as provisions, this Court has always heeded that.

In fact, in Wyoming v. Oklahoma where the request was that, okay, if it's invalid as to one particular company, just strike them out, what this Court said was, severability clauses may easily be written to provide that if application of a statute to some classes is found unconstitutional, severance of those classes permits application to the acceptable classes.

Now--

Justice Ginsburg: It was my impression from Califano v. Westcott, which I think is the last time the Court dealt with that, and it dealt with it up front, that the point was made that you can lop of something, you can include or exclude, you can put a caret mark, but nothing fancier than that.

Mr. Waxman: --I... our understanding of the cardinal rule, even in the absence of a severability clause, is the rule stated in Ferber, in which this Court said, when a Federal court dealing with a Federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems if the statute is subject to a limiting construction.

Even if the Federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should be stricken down... should not be stricken down on its face.

If it is severable only the unconstitutional portion should be invalidated, and here, where we have a severance clause that directs the Court to sever as to unconstitutional applications, we think that rule should apply, too.

May I reserve the balance of my time?

Argument of Bruce J. Ennis, Jr.

Chief Justice Rehnquist: Yes, Mr. Waxman.

Mr. Ennis, we'll hear from you.

Mr. Ennis: Mr. Chief Justice, and may it please the Court:

There are four reasons why the preliminary injunction should be affirmed.

The CDA bans speech.

It will not be effective.

There are less-restrictive alternatives that would be much more effective.

And the combination of an imprecise standard, coupled with the threat of severe criminal sanctions, will chill much speech that would not be indecent.

First, the District Court found as fact that the CDA completely bans a vast amount of speech, all of which is constitutionally protected for adults, from all of the unique means of communication in cyberspace except the World Wide Web, and effectively bans that speech from most of the Web as well.

Virtually all speech that is displayed on the Internet in a manner that would be available to adults would also be available to minors.

Justice Scalia: Excuse me.

You say it banned it from other applications but not from the Web.

Is it your contention... and there is much of this in the briefs... that every... every facet of... of cyberspace must be open to this kind of communication?

I mean what is wrong with saying, well, if you want to use cyberspace, you have to use the Web?

Mr. Ennis: Well, Justice--

Justice Scalia: You can't get into... into some of the other--

Mr. Ennis: --Justice Scalia, let me try to answer that question this way.

There are 40 million speakers who use news groups, listservs and chat rooms.

It is not technologically possible in those means of communication to screen for age.

The Government's expert conceded that.

There are about 100,000 Web sites in all.

And most speakers cannot afford the $1,000 to $10,000 it costs to have their own Web site.

Furthermore, there is a much--

Justice Scalia: --But, look.

Let's take printed communications.

It is certainly lawful... and we have upheld provisions that require pornographic materials to be kept away from minors and not to be sold in such a fashion that minors can obtain them.

This effectively excludes the publishers of pornographic publications from vending their material on the streets in vending machines, where minors can get access to them.

Do we say it's unconstitutional because they cannot use that manner of communication?

I don't think so.

We say tough luck, you have to sell it in stores.

Mr. Ennis: --Your Honor, in Southeastern Promotions, in Schad, in Bolger, in case after case, the Court has held, both under intermediate scrutiny and under strict scrutiny... particularly under strict scrutiny... that the possibility of a functionally equivalent alternative does not save the Government.

Here the alternative is not functionally equivalent.

Let me say why.

In news groups, chat rooms and listservs, you are engaging in an interactive dialogue, a conversation, in which you speak and the listeners reply and you can reply to what they say.

They can be outraged.

They can be offended.

They can have a good point to make.

A Web site is static.

What the Government is saying is that the 40 million people who can speak in an interactive dialogue in the other modes of communication on the Internet should post a static message on their Web site.

And maybe the people who are in the news group would come to see it, maybe not.

But the speaker would not get any feedback.

There would be no dialogue.

Second, there are only 100,000 Web sites.

But most of those do not have the screening capability that is required to screen for age.

Only those Web sites that have what is called CGI Script capability can screen for age.

We know from the record that all of the 12 million subscribers to the Internet who gain access through America Online, Compuserve, Prodigy, Microsoft, the major online service providers, those service providers provide Web site to those 12 million subscribers, but not one of those Web sites can have the capacity to screen for age.

So, in effect, there is a minuscule portion of the population that... for which it is technologically possible to screen for age.

Chief Justice Rehnquist: Why are the others incapable of screening for age?

Mr. Ennis: Because the... the unique ways that cyberspace works, you have to be able to have a computer software program that has a form that can be filled in, you can interrogate the listener who is trying to have access to your speech, and then you can have other data processing to figure out whether the listener can have access or not.

That kind of software does not work, as the Government's expert conceded, on news groups, listservs, and chat rooms.

Justice Scalia: Is that still true?

How long ago were all of these technological conclusions arrived at?

There are some aspects of cyberspace that didn't even exist when... when the hearing was held; is that right?

Mr. Ennis: Justice Scalia, it is still true.

The Government, in a highly unusual... for the Government... has cited in its reply brief to the Washington Post and NewsWeek, to suggest that it is possible to screen news groups and chat rooms on Web sites today.

The fact that the Government is forced to refer to extra-record material shows there is no evidence in this record that you can.

And in fact, the Government is wrong.

It is not possible, using a Web browser, which can gain access to a news group, to screen for age, because news groups exist in cyberspace on perhaps 200,000 different news group servers.

And it would be necessary for the separate owners and operators of each of those servers to screen for age.

Otherwise, the speaker would not be protected.

Chief Justice Rehnquist: Well, it could be done, then.

It could be done.

You're just saying it would defeat the purpose of some of these things.

Mr. Ennis: Your Honor, Chief Justice Rehnquist, it is technologically possible on some Web sites to screen for age.

But the... the District Court also found as a fact that even on that small subset of Web sites, the cost of screening would be economically prohibitive for all speakers.

Chief Justice Rehnquist: What does it mean when they say "prohibitively expensive" or "economically prohibitive"?

Mr. Ennis: Let me try to--

Chief Justice Rehnquist: Those are value-laden adverbs.

Mr. Ennis: --Well, let... let me try to explain, Chief Justice.

The principal way to screen for age is through use of a credit card.

If you are not a commercial speaker, most credit card companies will not verify the credit card at all, period, for any cost.

Chief Justice Rehnquist: So if you're a commercial speaker, they will?

Mr. Ennis: They will verify if you're a commercial speaker.

Chief Justice Rehnquist: And what... what do you mean by a "commercial speaker"?

Mr. Ennis: A speaker who is charging for access to his or her speech.

And that is a very small subset of all Internet speakers.

None of the enormous rauge of plaintiffs in this case is a commercial speaker.

Chief Justice Rehnquist: Well, the credit card people will verify for the commercial speaker because he can pay for it or because--

Mr. Ennis: That's right.

Chief Justice Rehnquist: --In other words, they would verify for anyone who could pay for it?

Mr. Ennis: Well, there are two questions... two points.

Most credit card companies simply will not verify for any price for a noncommercial transaction.

They are not set up to do that.

A few credit card companies will, but the record evidence showed they charge a dollar per verification for a noncommercial verification.

Now, if you are a speaker who wants to make your speech available to 100,000 listeners, that means you, the speaker, would have to pay $100,000 for the privilege of speaking.

Chief Justice Rehnquist: Well, what about the first radio people, you know, before the Federal Radio Act in 1927?

I'm sure that imposed a lot of operating requirements on radio stations.

And before that, they could just say, well, we like it the way it is.

The Government shouldn't have to tell us we've got to have all this equipment.

But, nonetheless, the Government did tell them, and that's certainly been upheld.

Mr. Ennis: Chief Justice Rehnquist, there is an enormous difference between some burden, some cost... which this Court has upheld in other contexts... and a burden or cost that is economically prohibitive.

Let me continue to answer your question by saying that, for example, there is evidence in this record that the Carnegie Library, which has been used as an example, in order to classify which of its speech is indecent and which is decent within the meaning of this law, that would require a human judgment and it would cost about $3 million to do that.

Chief Justice Rehnquist: And that's prohibitively expensive for the Carnegie Library?

Mr. Ennis: Yes, it is, Your Honor.

There is no dispute on that in the record.

Justice Scalia: Mr. Ennis--

--Well, I suppose it depends on how... I mean on whether... what is prohibitively certainly depends to some extent upon the goal to be achieved.

I mean we do stop individual citizens from running radio stations, because of all the regulations, say it's prohibitively expensive, you can't run your own radio station.

And we say, well, you know, that's tough luck.

The goal to be achieved is everybody can't talk at once, so we have to limit the numbers and we have to have all of these technological requirements.

It's going to cost you $3 million, and we say that's too bad.

Now, how valuable, how important is the goal to be achieved here?

Is it equivalently important?

Isn't that very much a policy judgment that Congress is able to arrive at?

Mr. Ennis: Let me answer that, Justice Scalia, first, by saying and emphasizing that we did not challenge this law insofar as it prohibits obscene speech, child pornography, solicitation of minors, harassment of minors.

That kind of speech was not challenged and is not enjoined by the injunction below.

We are only talking about a much different subset of speech that is called patently offensive or indecent speech.

I want to emphasize that that standard is broader than any standard this Court has ever upheld even with respect to sale or display directly to a minor, and is vastly broader than the standards applied in the 48 States which use a "harmful to minors" standard, which requires that the speech be not only patently offensive for minors, but also appeal to a prurient interest for minors and lack serious value for minors.

Justice Souter: Mr. Ennis, there is one thing I don't want to lose before you go away from the prohibitively expensive point.

Would you comment on Mr. Waxman's argument that those who transmit and display could do so subject to a requirement that access be conditioned on an adult identification number?

Is that a response to the prohibitively expensive argument?

Mr. Ennis: Justice Souter, Mr. Waxman said there was unrebutted evidence below.

If you'll look at the court's opinion, the court... what the court said was the government presented virtually no evidence about these third-party verification bureaus.

But what the evidence does show is those third-party systems do not work at all for listservs, news groups, chat rooms, all of the modes of communication in cyberspace except the World Wide Web.

So those third-party bureaus effectively shut down the 40 million speakers who use those other means of communication.

They cannot be used in those other means of communication.

Justice Souter: Would it be effective, in effect, in all Web transmissions and display?

Mr. Ennis: Not in all Web transmissions.

It would only be effective in Web... in a certain number of Web transmissions.

But I... I want to emphasize that one of the real democratizing and speech-enhancing attributes of the Internet is that average citizens can speak to the world for free.

In order to own your own Web site, the Government conceded, it would cost a thousand dollars to $10,000 to set up your own Web site, and then maintenance costs.

So we're... we're reducing the number of speakers dramatically.

Justice Breyer: Can you at some point... Mr. Ennis, could you at some point, at your choice, address the question of severability?

In particular, I'm thinking is it possible to narrow the statute perhaps far more extremely than the Government would like, but to commercial pornographers?

Is there a way of reading it so it only applies to people who make significant amounts of money out of selling pornography across the Internet?

Is there some such construction?

Mr. Ennis: Justice Breyer, the District Court did focus on that question.

And it found that no such limiting construction was possible for many reasons.

First, the Act, by its terms, applies to both commercial and noncommercial entities.

The legislative history makes clear that Government intended to regulate both commercial and noncommercial entities.

It applies, by its terms, to the speech of libraries and educational institutions.

None of whom, by the way, are regarded as pornographers in the common understanding of that term.

It... it is simply not possible to construe the statute that way.

And if you did, it would be a nonsensical construction.

Because before this Act was passed, the commercial pornographers already charged with credit card for access to their speech.

They don't make that speech available for free.

Justice O'Connor: How about narrowing the definition of what's patently offensive?

Mr. Ennis: Well, Your Honor, again, you would have to do violence to the text of the Act and to the legislative history.

Because Congress squarely--

Justice O'Connor: The Act just isn't specific.

It says "indecent speech".

I don't know that it's all that clear from the--

Mr. Ennis: --On the text of the Act, it's not, Justice O'Connor.

But the conference report, at page 188 and 189, makes very clear that Congress expressly rejected the more narrow "harmful to minors" standard, which would require that the speech be not only patently offensive, but also appeal to prurience and lack serious value.

Second, the conference report makes clear that Congress intended to apply the Act under... using the FCC broadcast standard for indecency that was at issue in the Pacifica case.

As the FCC said in Pacifica and as this Court noted, under that standard, speech can be found indecent even if it is not prurient and even if it has serious value.

Chief Justice Rehnquist: --Well, we construed the term "patently offensive" in our Denver Area opinions last term.

Mr. Ennis: Chief Justice Rehnquist, I think that, with respect to the vagueness argument, the Denver Area case is dramatically different from this case.

First, that case did not involve any criminal sanction whatsoever and did not even involve any direct prohibition on speakers.

It simply... the only provision that was upheld under a vagueness challenge simply permitted cable operators, who have their own first amendment rights, permitted them to exercise their own editorial judgment.

And it even required that--

Chief Justice Rehnquist: Well, you might say that the... what the Court came up with in Denver maybe was too lenient for a criminal statute, but certainly the term was construed there.

Mr. Ennis: --It was, Chief Justice Rehnquist, but it--

Chief Justice Rehnquist: It was construed in a quite limited way, was it not?

Mr. Ennis: --Let me answer it this way.

Chief Justice Rehnquist: Was it construed, do you think, in a limited way?

Mr. Ennis: I don't think that the term was actually construed in any particularly limited way in Denver Area.

I think the Court didn't need to.

But--

Justice Ginsburg: I thought the Court adhered to Pacifica in... in defining indecency.

Mr. Ennis: --I think the Court did refer to Pacifica, Justice Ginsburg.

Pacifica also, itself, stressed that that case did not involve any criminal sanctions at all.

An administrative slap on the wrist was what was at issue.

And the Court, three times, said... it was emphasizing that the Court was not upholding a prohibition of even broadcast indecency if it was accompanied by a criminal prohibition.

That's what this case does.

Justice Ginsburg: Mr. Ennis, you did say in... in your opening that you were going to tell us about a less restrictive, more effective means.

And I was intrigued by that, and I hope, before your time is up, you will be able to do that.

Mr. Ennis: Yes.

I'd be very happy to turn to that.

The court below found as a fact, at pages 32a to 42a of the appendix to the jurisdictional statement, that there is a broad range of technologies and software programs that enable parents either completely to block all access to the Internet, if the parents are really concerned or, more selectively, to screen and filter access to the Internet if they want to allow their children to have access to certain parts of the Internet but not to others.

Chief Justice Rehnquist: Those cost money, though, don't they?

Mr. Ennis: Chief Justice Rehnquist, the basic ones don't cost a thing.

Everyone... all of the 12 million Americans who subscribe to the Internet through the major online service providers get, at no additional cost, the parental control options that all of the major online service providers offer.

Using those options, by clicking one box, you can completely prevent all access to the Internet, including to foreign speech on the Internet, which this law will not deter.

Chief Justice Rehnquist: So, there will be no cost involved in any part of this alternative to the parents?

Mr. Ennis: Not if the listener uses those software programs.

No cost at all.

There are other software programs, some of which are available for free and some of which cost perhaps $30, which parents can use to filter content in different ways.

The--

Justice O'Connor: Well, Mr. Ennis, the Government says that these programs aren't effective.

And that's pretty much what the District Court concluded, too.

Mr. Ennis: --Justice O'Connor, with respect, I don't think that's a fair characterization.

If you look at page 42a of the joint appendix, the District Court summarized by saying that these were effective, and there was reason to believe they would soon be more widely available.

Even the Government, if you look at pages 13 and 9 of the Government's reply brief, the Government concedes, at page 13, that parents today, using these software controls, can effectively prevent their children from having access to any indecent speech, including indecent speech posted abroad.

The Government's response to that, however, is to say, well, yes, if parents want to be really safe and secure, they can completely protect their children; but that might deprive the children of access to some parts of the Internet they should have access to.

Justice Scalia: Mr. Ennis--

Mr. Ennis: That's not a first amendment problem.

That's a parental judgment issue.

Justice Scalia: --Mr. Ennis, so much of your argument is based upon what is currently available.

You know, I throw away my computer every 5 years.

I think most people do.

This is an area where change is enormously rapid.

Is it possible that this statute is unconstitutional today, or was unconstitutional 2 years ago when it was examined on the basis of a record done about 2 years ago, but will be constitutional next week?

Mr. Ennis: Not--

Justice Scalia: Or next year or in two years?

Mr. Ennis: --Not as it is presently worded, Justice Scalia.

Because the way it's worded now, it makes it a crime for a speaker to make available on the Internet speech that would be... to display speech that would be available to a minor.

And even if everybody agreed on a tagging system and even if everyone's computer had a browser that was set to read the tag, the speaker would have no assurance that those browsers were set in that way.

Justice Scalia: But it depends on the... on the security of the safe harbor.

And how secure the safe harbor is depends so much upon technology, I frankly think that this case depends upon who has the burden of proof.

I have no way of understanding--

Mr. Ennis: Well, I'm glad you asked that question, Justice Scalia.

Because--

Justice Scalia: --what is going to be what.

Now, who has it?

This is a distinctive kind of first amendment statute.

I don't know that we've ever adjudicated one like this, which... which only prohibits speech which is prohibitable.

There's no doubt that you can prevent people from saying these things to minors.

And that's all that is prohibited.

The argument is not, as it was in.

Pacifica, you've not only prohibited communications to minors, you've prohibited communications to adults during those viewing hours.

That's not the case here.

The only thing prohibited is clearly constitutionally prohibitable.

And your argument is, ah, but in prohibiting what is prohibitable, you've done it in such a fashion that you... you needlessly, unnecessarily, effectively prohibit non-prohibitable speech... that is, speech to adults.

That's... that's a new case for us.

And I wonder whether it isn't true that you have the burden of proof.

So long as the statute only says we're prohibiting these communications to minors, it's your burden to show that, in doing so, you're going to affect adults.

Mr. Ennis: --Justice Scalia, that was an issue below.

The Government conceded the Government had the burden below.

That was an issue in the Shea case.

In Shea, at 930 F. Supp. 923, the Government concedes that it bears the burden of proving that the display provision--

Chief Justice Rehnquist: Well, we don't... we don't decide cases here on the basis of concessions, Mr. Ennis.

I mean, that's an independent judgment that we make.

Mr. Ennis: --That's correct, Chief Justice Rehnquist.

I didn't mean to suggest you'd be bound by the Government's concession.

I simply want to suggest that the Government has made that concession for very good reason.

The Government is attempting to regulate speech that is constitutionally protected for adults and some of which is constitutionally protected for older minors.

It bears the burden of justifying that regulation.

The Government conceded below and in the Shea case that the display provision, standing alone, is an unconstitutional ban on speech.

And it said that provision is justified because of its argument that speakers could use the affirmative defenses to communicate indecent messages to adults, while shielding those same messages from minors.

But the District Court below found as fact that that is not so.

It is not technologically possible for the vast majority of Internet speakers to use those affirmative defenses.

Therefore, this law is a ban on indecent speech in cyberspace.

Returning to the effectiveness point that Justice Ginsburg asked, it's critical to note here that the court below found as fact that about 40 percent or more of all speech on the Internet is posted abroad in foreign countries.

And that at least 30 percent of all indecent speech in cyberspace is posted abroad in foreign countries.

The Government's own expert acknowledged below that the CDA would have no impact on that foreign indecent speech, and that parents would have to rely on parental control technologies to shield their children from that foreign speech.

Chief Justice Rehnquist: But if 70 percent is shielded and 30 percent isn't, what kind of an argument is that against the constitutionality of the statute?

Mr. Ennis: First, Chief Justice Rehnquist, I think it's more like 50/50 today.

Chief Justice Rehnquist: Well, whatever the situation is.

Mr. Ennis: Well, here's why.

It's... suppose we were talking about an enormous adult bookstore.

Everything in the store is indecent.

And the Government says, children can come into this enormous adult bookstore and browse unsupervised, but we're going to remove half the books, half the videos.

That would not, directly and materially, advance the Government's interest of protecting those children from access to indecent materials.

Chief Justice Rehnquist: Well, it would certainly... it would certainly go halfway.

[Laughter]

Mr. Ennis: Well, Your Honor--

Justice Scalia: What about 500 bookstores, 500 obscene bookstores, and the Government eliminates 250 of them; would that be no progress at all?

Mr. Ennis: --If they're obscene, they can eliminate them all, Justice Scalia.

We don't challenge that.

Justice Scalia: Never mind obscene... pornographic--

Mr. Ennis: Pornographic--

Justice Scalia: --succeeds in excluding children from 250 out of 500, that's no use?

Mr. Ennis: --Justice Scalia, the way the Internet works, a child using a search engine can sit down at their typewriter and they type in, if they want to go somewhere... and it's important to stress that in cyberspace, listeners must affirmatively choose where they want to go.

The Government's expert testified that the odds are slim that a child would come across a sexually explicit site by accident.

But if a child wants to go to an indecent site, the child sits down and types in something like "triple-X sex".

If that home computer is not using parental control software, that search engine will go out there in the world and list the triple-X sites that are available.

All the triple-X sites that are foreign will be listed there.

The kid then clicks the mouse, and they have access to all the indecent speech they could possibly want to see.

The Government's interest here was not limiting children to 50 four-letter words a day instead of 100.

The Government's interest was protecting children from access to indecent speech at all.

Justice Kennedy: Does this statute--

Mr. Ennis: And this Act would be completely ineffective in achieving that goal.

Justice Kennedy: --Does this statute, with respect to foreign speech, prohibit United States users to post information that goes abroad?

Mr. Ennis: It doesn't specifically address that question at all, Justice Kennedy.

Which is a big problem.

Because there was evidence in the record below that if this law were upheld, so that it completely suppressed all indecent speech by all domestic speakers, it would be very simple for commercial purveyors of sexually explicit speech to move all of their operations abroad.

And they don't even have to do that.

Using a dedicated computer here, they can post the messages here.

It goes to a foreign computer, an anonymous re-mailer, and that speech then comes back to this country.

It seems, to all intents and purposes, it comes from a foreign country.

Justice Breyer: Why, just out of curiosity, is it not applicable to messages that emanate from abroad?

Mr. Ennis: It's not applicable, Your Honor, because, first of all, as a practical matter, the Government would not have personal jurisdiction over foreign speakers, and could not realistically expect--

Justice Breyer: Well, I mean if they came here.

Suppose they came here, they have assets here, et cetera.

Mr. Ennis: --Well, there may be one or two or 10 or 20 applications--

Justice Breyer: Is it totally practically or is there some legal reason?

Mr. Ennis: --Well, there are also legal reasons, Your Honor.

This Court has indicated... and Justice Scalia's opinion for the... that there are two canons of statutory construction that are relevant here.

The first is... the first canon is that you do not presume that a domestic law is intended to have extraterritorial effect.

Second, even if it is, you do not presume that it does apply extraterritorially if that would create a conflict with the laws of foreign countries.

And the Government's own expert testified in this case that there are many foreign countries in which the law that's considered criminally indecent here would be perfectly lawful.

So there would be that--

Chief Justice Rehnquist: So Congress could cure this constitutional defect as you see it simply by making it clear that the law applied everywhere?

Mr. Ennis: --No, it wouldn't cure the second problem, Your Honor, because that would then be a conflict with the laws of those many foreign countries--

Chief Justice Rehnquist: Well, but supposing the Congress said we don't care if there's a conflict?

Mr. Ennis: --Well, Congress could violate that standard of statutory interpretation.

Chief Justice Rehnquist: Well, when Congress expressly provides something, it's not violating a standard of statutory interpretation.

Mr. Ennis: Your Honor, I... I agree that Congress could have drafted a much different statute than the one it drafted.

It could have drafted a statute that did not apply at all to noncommercial speakers.

It did not.

It could have drafted a statute that only applied to visual images, not just four-letter words.

It did not.

It could have drafted a statute that was, in many respects, narrower than the statute at issue here.

It could have limited it to prurient speech that lacked serious value.

Chief Justice Rehnquist: But I'm talking about broader statute.

A broader statute, in that respect, saying that it was all over the world that it applied, would cure this one constitutional defect that you're talking about.

Mr. Ennis: It would take care of that defect.

But that's not the statute we have before us.

Justice Scalia: Well, I'm not sure.

While I certainly agree that normally statutes are not interpreted to be extraterritorial, I don't know that we've ever had a case in which it has been asserted that the difference between the constitutionality and unconstitutionality of the statute is whether it is extraterritorial.

I think if the only way to make it constitutional is to interpret it as being extraterritorial, I'm not sure that we wouldn't say, well--

Mr. Ennis: Justice Scalia, this is not that case.

Justice Scalia: --I mean if that's your only argument, I'm saying--

Mr. Ennis: It's not... it's not the only argument.

It's not the only argument at all.

Justice Scalia: --I think it's a pretty weak argument.

Mr. Ennis: But it's not the only argument at all, Justice Scalia.

Our argument--

Justice Ginsburg: I thought you were making the point that it would be ineffective because--

Mr. Ennis: --That's correct.

Unknown Speaker: --but not unconstitutional.

Mr. Ennis: It would be ineffective for that reason.

Unknown Speaker: But--

Mr. Ennis: But even if... excuse me, Justice--

Justice Ginsburg: --you did bring up an interesting point.

Are there other nations that have regulated indecent speech in cyberspace?

Mr. Ennis: --Not that I know of, Justice Ginsburg.

There may be.

But there are other nations that have attempted to regulate the content of speech in cyberspace.

China attempts to regulate speech that's critical of the Chinese Government.

It's not inconceivable that Iran might attempt to regulate speech that's critical of religious--

Justice Ginsburg: And might want to control the world with respect to that, to rule the world with respect to the kind of speech that that nation doesn't like?

Mr. Ennis: --Well, Justice Ginsburg, I think... in fact, the Chamber... U.S. Chamber of Commerce filed an amicus brief in this case, criticizing this law for precisely that reason... that this law sends precisely the wrong signal.

That it is appropriate for governments, in their own interest, to ban whatever speech they want to ban from a global medium, which will cripple the competitiveness of U.S. business in competing in this increasingly important business--

Justice Scalia: I suppose we better let obscenity in, too, then?

Mr. Ennis: --No--

Justice Scalia: That's just the point.

If that's a global principle--

Mr. Ennis: --I don't think obscenity--

Justice Scalia: --Right.

--if we shouldn't ban stuff that we don't like, it would apply to obscenity.

Mr. Ennis: --I don't think obscenity is considered appropriate or lawful speech in any country that I'm aware of.

Justice Kennedy: Well, but I do think it's a weak argument to say that the United States, if it has a strong public policy, cannot lead the way, and maybe other nations would follow.

I think your argument is... is not your strongest argument.

Mr. Ennis: No, that's not our strongest argument.

Our strongest argument, Justice Kennedy, is that this law will have the unconstitutional effect of banning indecent speech from adults in all of cyberspace.

For 40 years, this Court has repeatedly and unanimously ruled that Government cannot constitutionally reduce the adult population to reading and viewing only what is appropriate for children.

That is what this law does.

In Sable, this Court, in the telephone context, struck down a law that had precisely that effect.

It banned telephone indecent speech.

And that had the unlawful effect of banning that speech from adults, as well as from minors.

This Court unanimously struck that down.

And to answer Justice Breyer's question about telephone, I do not believe it is a crime in this country today for private persons, including private teenagers, to communicate indecent speech by telephone.

It would be a crime to communicate exactly the same speech under the CDA.

So, returning, the principal arguments we have is that this is a ban on adult speech.

It is not going to be effective, for the reasons I've expressed, about all of the foreign indecent speech.

And even if it were effective, there are less-restrictive alternatives that enable parents, completely, to decide what they think is appropriate for their 17-year-old, as opposed to their 16-year-old.

Under this law, there is no parental choice.

The Government decides what's appropriate for all 17-year-olds.

A parent who disagrees with the Government cannot, through the Internet, gain access to speech, safer sex information, very similar to the information at issue in the Bolger case.

That parent would have no opportunity, using the Internet, to make that speech available to the parent's 17-year-old child.

And even worse than the hypothetical you asked, Justice Souter, about the 2 years in jail, for a parent to send an indecent E-mail message to the parent's 17-year-old college freshman son or daughter.

That's a direct transmission, not just a permitting the use.

The parent would... would be committing a criminal act to do that.

Justice Stevens: Mr. Ennis, do you think it would be constitutional to require all transmitters to tag their material?

Mr. Ennis: Well, I think it would raise significant compelled speech questions, Justice Stevens.

Whether it be constitutional or not, I don't know.

But even if that were required, that would not--

Justice Stevens: If it's not, then that's not a less-restrictive alternative?

Mr. Ennis: --Well, it wouldn't be a less-restrictive alternative under the way this law is worded.

Because this law makes it a crime to make speech available.

Justice Stevens: No, I'm assuming you just start from scratch, with a law that requires that as the principal means of screening.

Mr. Ennis: I think... I think what would be constitutional is what this Court found would be constitutional in Denver Area.

And that is encouraging, facilitating parents to use the parental control options that are readily available to them right now.

If parents use the software tools they have, they can block or screen all indecent speech.

Chief Justice Rehnquist: Nothing with any teeth in it?

Mr. Ennis: Well, you could--

Justice Scalia: They're not readily available without labelling.

That's the problem.

Mr. Ennis: --No, no--

Justice Scalia: Without tagging.

Mr. Ennis: --That's wrong, Justice Scalia.

Right now... I'm a parent.

I subscribe to one of the major online service providers.

I clicked the kid's only box.

And that means my child does not have any access to the Internet unless I'm there to supervise.

Justice Kennedy: Does the Government have any interest in protecting children who do not have parents available in the home or do not have adequate parental supervision?

Mr. Ennis: Well, Justice Kennedy, we do not dispute that the Government has a legitimate interest in protecting some children from some forms of speech that could be found indecent.

But the problem with this law is, in order to achieve that objective, it completely bans all of that speech from adults and also bans it from the substantial portion of minors who themselves have first amendment rights, under Bolger and Erznoznik, to have access to the banned speech.

Justice Scalia: Mr. Ennis, if I had to be present whenever my 16-year-old is on the Internet, I would know less about this case than I know today.

[Laughter]

That is simply not a realistic possibility... to tell every parent, if you're worried about it, just don't let your teenager use the Internet unless you're there.

Mr. Ennis: That's the point, Justice Scalia.

Justice Scalia: That's not reasonable.

Mr. Ennis: That's the point.

The parental control devices that are available on the Internet are more effective than any control devices available for broadcast TV, cable or telephone, because the parents don't have to be there.

Chief Justice Rehnquist: Thank you, Mr. Ennis.

Mr. Ennis: Thank you, Mr. Chief Justice.

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: Mr. Waxman, you have a minute remaining.

Mr. Waxman: I have five points.

I will try and make them very quickly.

The burden of proof... this is an act of Congress that's being challenged on its face... the burden of proof, under long precedent, is with the party challenging it.

That's verified by Federal Rule of Evidence 301, and this Court's precedence in Walters and Hicks v. St. Mary's Honor Center.

With respect to the classification burden on the Carnegie Library, this Court's precedence in the obscenity context have indicated that there is no obligation for the Carnegie Library to read every one of its books in order to decide it has to be classified.

In order to prove a criminal case, we have to prove that the defendant actually knew the content.

So the Carnegie Library only has to do what it has to do under its local ordinance, which is take the indecent stuff and put it in a different room.

This is the electronic equivalent of that.

Justice Souter: But that's' not true under the display... that's not true under the display provision here, is it?

Mr. Waxman: It is true under the display provision.

That is, if they find that they have certain--

Justice Souter: I thought that was not a knowing offense?

Mr. Waxman: --Excuse me?

Justice Souter: The display provision is not a knowing offense.

Mr. Waxman: Well, you have to knowingly display it.

And it, in the context... if I may just finish this point... it, in the context of this Court's decisions in the patently offensive prong of the obscenity context, has said that whatever the standard of proof, whatever the scienter is, you may not, as a constitutional matter, convict somebody unless you prove not that they knew that it was pornographic, but that--

Chief Justice Rehnquist: I think you've... I think you've... Mr. Waxman, I think you've answered the question.

Mr. Waxman: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. X-Citement Video - Oral Argument

Fri, 09 Jan 2009 14:49:56 +0000

Case:

United States v. X-Citement Video

Media File:

93-723_19941005-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Drew S. Days, III

Chief Justice Rehnquist: We'll hear argument first this morning in Number 93-723, the United States v. X-Citement Video, Inc.--

General Days.

Mr. Days, III: Mr. Chief Justice and may it please the Court:

At issue in this case is the constitutionality of section 2252 of the Child Protection Act of 1984 as amended.

That section prohibits knowingly transporting, shipping, receiving, or distributing in interstate or foreign commerce or mails any visual depiction if the producing of that depiction involves the use of a minor engaging in sexually explicit conduct and the visual depiction is of such conduct.

The text of section 2252 is set out at section 3a of the appendix to our opening brief.

The Ninth Circuit held the statute unconstitutional on its face under the First Amendment because it held that the statute did not require an element of the offense be that the defendant knew the minority status of at least one of the performers engaging in sexually explicit conduct, but rather, according to the court, imposed strict liability.

As a consequence, respondent's convictions under section 2252 were reversed.

We submit that the court of appeals committed error in this respect, because 2252 does require that the defendant know that at least one performer in the visual depiction is a minor.

Consequently, we urge this Court to reverse and remand the case for further proceedings consistent with that proper reading of the statute.

Unknown Speaker: General Days, the Government I would think could also have argued that the Ninth Circuit was wrong because no such scienter requirement was required by the Constitution.

Mr. Days, III: Your Honor, we're not here to argue whether there was in fact an unconstitutionality presented in this case, but merely that there was a constitutional problem.

Perhaps at another time one could discuss whether the statute would be constitutional without a scienter requirement... that is, as a strict liability statute... but that's not presented by this case.

Unknown Speaker: Why not?

Mr. Days, III: Well, because Federal courts are required, according to principles of interpretation, to try to avoid constitutional problems unless it would be clearly contrary to the intent of Congress.

Unknown Speaker: But what if a majority of the Court were to conclude that fairly reading the statute there was no such scienter requirement?

Mr. Days, III: Well, if this Court was to so decide, that would conclude the matter.

Unknown Speaker: Why?

We don't take our law by stipulation of the parties.

We would be perfectly free to say that there is no constitutional requirement.

Mr. Days, III: That's what I'm suggesting.

Unknown Speaker: Oh.

Mr. Days, III: If the Court were to decide that, that certainly would resolve the matter, but our concern with the Ninth Circuit opinion is that it made no effort, according to the dictates of this Court's decisions, to try to avoid the constitutional problem.

It's certainly, as we understand it, not the duty of Federal courts to try to seek out a constitutional problem and resolve it if it's not presented, and we think that particular problem in the way the Ninth Circuit handled this case and its failure to recognize that normally scienter is presumed to be part of a statute even when there's no scienter requirement on the face of the statute, the Ninth Circuit's failure to use those two principles of construction, namely avoiding constitutional interpretation, and 2) reading this background assumption of the criminal law, namely, scienter, into the statute, caused it to commit error.

Unknown Speaker: Well, General Days, the most natural reading of the statute may be that which the Ninth Circuit adopted.

The language is set off by commas, and it might be the most natural reading, isn't that correct?

Mr. Days, III: Perhaps so, Justice O'Connor.

There are many readings that have been offered in connection with the statute, indeed, in this litigation.

The Ninth Circuit held that knowingly went just to transporting and distributing and so forth, and didn't reach visual depictions.

Unknown Speaker: Because that's how it is set out.

Mr. Days, III: Well, visual depiction actually is before the if clause, the dependent clause, and yet the Ninth Circuit held that that wasn't encompassed, and then we have the amicus, the linguists who say that it goes down to include visual depiction, and apparently the respondents take that view.

It seems to me that it is also possible, because it's not clear from the statute how far knowingly travels down the paragraph, that it could include the entire provision, and besides, even if this--

Unknown Speaker: Well, what do we normally do if we think the language is clear?

Mr. Days, III: --Well, you go with the language as it's set out in the statute, but I think courts do that only when doing so would not present constitutional problems, and although a natural reading of the statute is one way that the courts can approach this issue, I think this Court has held that in some cases, particularly in criminal cases, the most plausible reading of the statute is not the one that the Court should adopt because of constitutional problems.

Unknown Speaker: Judge Kozinski in the opinion below thought that you couldn't read knowingly into it, but what the court should do is to import a recklessness requirement for the age.

Mr. Days, III: Yes, he did say that.

I don't--

Unknown Speaker: What is your position on the Kozinski view?

Mr. Days, III: --Our position is that it is not necessary for the Court to do that for several reasons.

1) Knowingly is in the statute, so it suggests something about Congress' regard for that level of scienter, and the Model Penal Code suggests that where a level of scienter is stated in a statute, it's appropriate to read that level of scienter throughout the entire statute unless there's something clearly to the contrary that would suggest otherwise.

We also think that knowingly is consistent with what Congress had in mind.

Looking at the legislative history, if there's any lesson that one can draw from the legislative history, it is that Congress wanted scienter in the statute, that it was not thinking in terms of strict liability.

Unknown Speaker: As I understand it, General Days, when the statute was enacted in 1978, it had the word obscene before visual depiction.

Mr. Days, III: That's correct.

That particular statute is set out at 3-1 of our brief.

Unknown Speaker: At that point, do you think that the knowledge requirement applied to subsections (a) and (b)?

Mr. Days, III: Given the history of the statute, the legislative history, there are two possible readings, at least.

One is that knowingly continued to apply to the minority statutes of a performer, but there is another reading.

Since obscenity was added to the statute, Congress might have had in mind that the scienter attached to obscenity violations would suffice to comply with any constitutional requirements.

Unknown Speaker: When we're talking about this earlier version, was this an earlier version that was approved by the whole Congress?

Mr. Days, III: The earlier version?

Unknown Speaker: Yes, that had obscene visual depiction?

Mr. Days, III: Oh, yes.

That became the statute in 1978.

It was a statute that did not have minority status as an element, as such, of the offense.

What it had was minority status as a penalty-enhancing provision, and it was not until 1984, after this Court's decision in Ferber, that obscenity was dropped, and what happened then was that minority status became the element that distinguished between legal and illegal conduct.

It became the boundary between legal conduct, namely the possession of nonobscene material on the one hand, which is protected by this Court's decisions and by the First Amendment, and illegal material following Ferber, which would be nonobscene, pornographic material involving minors as performers.

Unknown Speaker: But it is odd that the deletion of one word would imply the inclusion of two other unstated words.

Mr. Days, III: What are the two other unstated words?

Unknown Speaker: Well, it would be knowingly as to A, and knowingly as to B.

Mr. Days, III: Well, knowingly was in the statute all along.

Knowingly never dropped out, and the question is--

Unknown Speaker: Well, I mean, if you assume that with obscene you did not need knowingly for A and B--

Mr. Days, III: --Well, that's certainly one assumption.

Unknown Speaker: --it would be rather odd to say that this is an implied extension by the deletion of the word obscene.

Mr. Days, III: Your Honor, certainly that is a difficulty with that particular reading, but not inconsistent with the legislative history, and the fact that knowingly was retained throughout this process I think is instructive, because if one looks at a companion provision to 2252, namely 2251, which has to do with the production of child pornography, the history shows that Congress in 1978 dropped the term knowingly, intending, based upon advice that it received from the Department of Justice, that that was not necessary because it would be a situation where appropriately a producer should be given the burden of determining whether the performer was in fact a minor, and would suffer the consequences if he or she failed in that regard.

Unknown Speaker: General Days, you said... you explained that the statute which once had minority as a penalty-enhancer--

Mr. Days, III: Yes.

Unknown Speaker: --Was changed to make penalty an element of an offense.

Why, then, wasn't this indictment insufficient for failure to allege an essential element of the offense, because minority status was not alleged in the indictment?

Mr. Days, III: Well, that's a very good question, Justice Ginsburg.

Let me say first that the lower courts have... the court of appeals did not address the sufficiency of the indictment issue, but on that very point, Russell v. United States seems to suggest, although we are not reading it in this way, that where a court imposes an element that was not on the face of the statute, then the indictment is insufficient if it does not have that element set out in terms.

But one can read Russell v. United States and subsequent cases to hold that the issue is where an element of fact is supplied, in fact, by a decision of the court, that the indictment that lacks that particular information is deficient.

In Russell, it had to do with contempt of Congress, and the question was, did the indictment adequately notify the defendant that pertinent questions had to be answered, questions pertinent to the subject of the inquiry, and what this Court said was, it is not sufficient in the indictment to simply follow the statute, the terms of the statute, track the statute, because the subject of the inquiry is not clear, and therefore the indictment has to provide the defendant with more notice.

But we think here, we have the term knowingly, and if this Court determines that knowingly in fact reaches the minority status of the performer, I don't believe that there would be a problem with the indictment, but as I said initially, this is something that the court of appeals perhaps is in the best position to sort out, and it was not presented to this Court for determination.

Unknown Speaker: So your first answer is that knowingly travels down the indictment just as you urge it travels down the statute.

Mr. Days, III: That's correct.

Unknown Speaker: May I ask you, General Days, on the basic argument that you're making that we should avoid the constitutional issue by construing the statute to include this knowing requirement, would you not make precisely the same argument if the word knowingly were not in the statute, given our decision last year in the Staples case holding that even though the word knowingly wasn't in the gun statute, the Court thought there was a presumption that the criminal must be proven to have known the facts that made his conduct illegal?

Mr. Days, III: That's correct, Justice Stevens, not only in Staples, but this Court in Posters 'N' Things, in Liparota, in Bailey--

Unknown Speaker: Well, Liparota, the word knowingly was in the statute.

Mr. Days, III: --It was, that's correct.

Unknown Speaker: Yes.

Mr. Days, III: But the process that we are describing that you identified is one that this Court has utilized in a number of cases, most recently in Staples, so that--

Unknown Speaker: But wouldn't we import a recklessness requirement according to the Osborne case, rather than a knowingly requirement--

Mr. Days, III: --Certain--

Unknown Speaker: --if the word weren't in the statute at all.

Mr. Days, III: --Yes.

If the word weren't in the statute, it would be easier to embrace a recklessness standard.

Osborne certainly recognized--

Unknown Speaker: Was Staples a recklessness standard?

Mr. Days, III: --I beg your--

Unknown Speaker: Was Staples a recklessness standard?

Mr. Days, III: --No, it was not a recklessness standard.

Unknown Speaker: Well, why should this one be a recklessness standard?

Mr. Days, III: Well, our position is that knowingly is the appropriate standard, although we cannot ignore the fact that this Court in Osborne was confronted with a case where there was no scienter on the face of the statute, and this Court accepted the Ohio supreme court's decision to invoke a provision, a statutory provision that made recklessness the default standard, so that's on the books, and we have indicated in our brief that we think knowingly is more consistent with the legislative history, and I would assume--

Unknown Speaker: General Days, that's a reasonable thing to do, to import knowingly, or recklessly, or whatever, where the legislator has not explicitly addressed the subject.

But you're dealing here with a statute in which the legislator has explicitly addressed it and I, frankly, I don't know how it could have been made any clearer that the portion of the statute coming after the word if is not subject to the knowingly... I've asked myself several times, you know, how would I have put it if I had wanted to make clear that the knowingly only goes to shipping in interstate commerce any visual depiction.

I would have written it precisely like this.

It just couldn't be clearer.

Mr. Days, III: --Well, Justice Scalia, certainly one can read it that way, and perhaps it is clear to you that way, but as I said earlier, the clearest reading of a statute when constitutional issues are presented has not been the reading that this Court has embraced.

Unknown Speaker: Well, we've also said that we will not distort a statute from its meaning in order to uphold it's constitutionality.

We're not in the business of writing new statutes.

If a statute means plainly one thing, and that thing is unconstitutional, our job is to say so, not to write a new statute.

Mr. Days, III: Yes, I would agree with you if it were so plain, but I don't agree that it's so plain, based upon the legislative history and based upon the various readings that people who have looked at the statute have given it.

Unknown Speaker: What the legislative history proves to me is that Congress made a mistake.

Congress cannot make a mistake?

Mr. Days, III: I think Congress can make a mistake, but this Court should do its best, unless it's clearly obvious that Congress made a mistake, to help Congress avoid moving into an unconstitutional realm, and I think that there is clear on the face of the legislative history of this statute that what Congress wanted to do was live within the Constitution as it understood it, not to test the boundaries of the Constitution.

Senator Roth, when he was talking about his earlier proposals--

Unknown Speaker: I'm sure that's what they wanted to do.

Mr. Days, III: --Well, I think--

Unknown Speaker: The question is whether they succeeded.

Mr. Days, III: --It is the question that this Court's--

Unknown Speaker: Because we have a statute in front of us that says to me plainly one thing, that you need to know only what precedes the word, if.

Mr. Days, III: --Justice Scalia, I think that if one looks at the 1984 legislative history, what Congress was trying to do in 1984, it's clear that it wanted to adhere to this Court's decision in Ferber.

It removed the obscenity requirement, and the idea was to go as far as the Constitution would allow.

I find it very difficult to conclude that Congress, having converted a statute from a penalty enhancement provision to one where the minority statutes of the performer is the pivotal issue, it is the element that makes the difference, that we presume that Congress did not intend that the defendant have knowledge of that fact.

Unknown Speaker: I'm going further than that, Mr. Days.

As I read this statute, all the person has to know is that he is shipping a visual depiction.

He does not even have to know that the visual depiction is pornographic.

Mr. Days, III: Yes, and I think that the--

Unknown Speaker: That's the way it's written, however.

Mr. Days, III: --The legislative history suggests that Congress did not want to impose that type of liability.

It was not in the business of criminalizing a broad range of otherwise innocent behavior, so that this statute I think should not be read, given that background, to criminalize, for example, the innocent handling of material that turns out to be sexually explicit conduct involving minor performers, and this Court has stated innumerable times that it's not going to invite that type of constitutional problem--

Unknown Speaker: Don't you think it would be useful to--

Mr. Days, III: --where statutes of this kind are presented.

Unknown Speaker: --to read it the way it's written?

Don't you think it might be useful in causing Congress to be more careful, especially in criminal statutes, about what it says in the future?

Mr. Days, III: Justice Scalia, I suppose that one of this Court's jobs could be to teach Congress a lesson, but I don't think that that's really--

Unknown Speaker: Not to teach Congress a lesson, but to read the law the way it's written, and if they want us to apply the law, to say we're going to apply it the way you write it.

Mr. Days, III: --Yes.

I think that is an appropriate beginning point in an analysis of the statute, but as I've indicated, the problem here is that we have principles of interpretation that lead us in a different direction, and unless this Court is going to reject principles of interpretation that it's utilized very effectively, and I think very judiciously, if I may use that term, in many other circumstances, unless it's going to abandon those principles, those principles apply to this statute pointing in the direction of constitutionality, not unconstitutionality.

Unknown Speaker: General Days, this is a peculiar statute.

Even if we did as you suggest and read it as importing knowingly--

Mr. Days, III: Yes.

Unknown Speaker: --even to the minority status, I suppose the Clerk of this Court, in receiving the video in question, has violated the statute.

I suppose we have, if we've looked at it and had it in our hands.

Mr. Days, III: Well, you're the ultimate arbiter of that, Justice O'Connor--

[Laughter]

--but certainly that suggests it.

Unknown Speaker: Certainly the language of the statute, even read as you would have us read it, has no exceptions.

Mr. Days, III: I beg your pardon?

Even when someone knows that it's a minor performing in the material?

Yes, I suppose you're right, and maybe this Court in another context should look at the question of what defenses would be available, but again, that's not presented by this case.

Unknown Speaker: Is the other context anything for the further proceedings?

I wasn't clear.

You repeated today what was in your reply brief, we should reverse and remand for further proceedings.

Mr. Days, III: Yes.

Unknown Speaker: Your opening brief seemed to say that we should... that there was no need for a remand, that we would affirm the convictions.

Mr. Days, III: Yes.

Well, we're standing by the position we took in our reply brief, because there are two issues that remain for determination by the court of appeals.

One is that the indictment was fatally defective, and the other is that the tapes did not constitute child pornography, and I must admit, I don't understand fully the nature of that argument.

Perhaps my learned colleague can elucidate that for you.

But those are the two issues that are presented for the court of appeals on remand if this Court determines that the statute is, in fact, constitutional, which we hope it will.

Unknown Speaker: The deficiency of the indictment, because it didn't allege minority.

Mr. Days, III: That's correct.

It is the issue that you, Justice Ginsburg, raised in your question to me.

Unknown Speaker: General Days, you haven't made a kind of absurd result argument here this morning.

I want to know whether you're waiving it.

I suppose the absurd result argument would be that it would be ridiculous for Congress to waste it's time putting or retaining at the time of the amendment the knowingly requirement if all it was concerned with was that the defendant know that he is shipping, or know that he is shipping a visual depiction.

That would be a waste of ink.

Surely Congress wouldn't have bothered even to put a state of mind in there unless Congress must have had, or to retain a state-of-mind requirement, unless Congress had in mind the far more difficult issues of the minority character and the depiction of the minority character in that.

Do you want... do you shy away from that argument?

Do you reject it?

Mr. Days, III: No, I do not.

I think that normally scienter is not required when one is dealing with certain jurisdictional requirements of a criminal statute, and the fact that knowingly is sitting there and, according to the Ninth Circuit, just applies to transporting, receiving, and mailing, is something of an odd placement when there is this very significant issue, namely the knowledge of minority status of the performer, in that new statute.

It becomes, as I indicated, the pivotal consideration, really at the heart of criminality under the statute.

And I think that this Court has assumed that Congress, since its Members take an oath to uphold the Constitution and swear to abide by it, that that's what Congress was doing, and had read Ferber, understood that Ferber required some level of scienter, and was acting in accordance with that.

Unknown Speaker: But even without the Ferber consideration, why waste time putting the word knowingly in there if all you're concerned with in a statute of this scope is the fact of shipment, or the fact of depiction?

Mr. Days, III: I would agree.

Unknown Speaker: I mean, presumably Congress has a serious purpose, and they must have been serious about the subject of the depiction, and the knowledge of minority status.

Mr. Days, III: I would agree.

I think that--

Unknown Speaker: General Days, is it common ground that this material would be constitutionally protected if it were not, did not contain a minority performer?

Mr. Days, III: --Yes, Justice Stevens.

There was no claim throughout this proceeding that the materials were obscene, and therefore they would be protected by the First Amendment.

Unknown Speaker: Could I--

Mr. Days, III: Yes, Justice Breyer.

Unknown Speaker: --As I understand it, I... the difficulty I'm having is this.

As I understand it, you have a statute, and let's say it has three parts.

Somebody receives some photos, and the photos turn out to be pornographic, and the pornography involves a child.

Those are the three parts.

Now, one possibility is that Congress meant all you need to know is that you've received some photos, in which case the postman is likely guilty of the crime.

Mr. Days, III: Yes.

Unknown Speaker: All right.

That doesn't seem to me likely that that's what they wanted, but that's a possibility.

The second thing is, well, you had to know they were photos, and you also had to know that they're pornographic, and the third possibility is, you had to know they were photos, you know they're pornographic, and you know they are children.

Mr. Days, III: Yes.

Unknown Speaker: Now, that third part is where I have the question.

Imagine that the statute was totally silent.

What is the normal scienter requirement that courts import where the statute is totally silent?

That is to say, there's a whole book here called the Criminal Code of the United States, which has hundreds, 800-and-something, approximately, different crimes, and only a few of those actually use words like knowingly, or say what the scienter is, and what's the normal thing, if you counted them up?

I mean, my guess is it's knowingly, and it's unusual to import the word recklessly, but I'm not certain of that, and that's why I'm asking the question.

Mr. Days, III: Justice Breyer, I don't know the answer to that.

Certainly this Court in importing a scienter requirement in the cases that I'm aware of has looked at knowingly at the standard, and not something less than that, but it is the case that at least under the Model Penal Code, recklessly is viewed as the default standard if there's not a mention of a scienter requirement in the statute.

Unknown Speaker: Why wouldn't--

Mr. Days, III: That's why Judge Kozinski did what he did, I believe.

Unknown Speaker: --What about the second possibility that Justice Breyer mentioned, that the knowingly requirement extends only to knowledge that the material is pornographic?

Why isn't that a possibility that you propose to us?

Mr. Days, III: That is an approach that was taken by the lower courts, and I think it was drawn from this Court's decision in obscenity cases, where, as in Hamling or Smith, if you knew the nature and character of the materials, the fact that you didn't know that they were obscene and you were told after you were indicted that they were obscene would not be a defense.

But it seems to me that that standard cannot be appropriate in the context of child pornography.

One cannot know the nature and character of the materials unless one knows that they contain minor performers.

Unknown Speaker: One can know that it's pornography.

Can't we assume that pornography is entitled to a lesser degree of First Amendment protection, just as some other kinds of speech are, such as commercial speech, and say that Congress in effect adopted an absolute rule.

When you know you're dealing with pornography, you take your chances as to whether the actors in this pornographic material are minors.

Isn't that a reasonable explanation of Congress' intent?

Mr. Days, III: It is a way of reading it, and we've set out in our brief, when we discuss the recklessness standard--

Unknown Speaker: General Days, would it not encounter precisely the same textural difficulty that the statute, the other reading--

Mr. Days, III: --Well, it does, Justice Stevens.

I was just going to point out, when we talk about recklessly, we included the fact that there had to be some knowledge of the nature and character of the material, and then reckless disregard for that particular awareness, so it's a combination.

Unknown Speaker: --I don't see why that's any more easy to reconcile with the text than the other.

Mr. Days, III: We're not denying that that's a possibility, but continue to view knowingly as the appropriate way to work within the statute because of legislative history, because of the approach that this Court has taken in other circumstances, where knowingly was not even on the face of the statute.

Unknown Speaker: Well, General Days, I thought we had already agreed that it doesn't require obscenity or pornography, but just a visual depiction of sexually explicit conduct.

Mr. Days, III: That's correct.

Unknown Speaker: All right.

But isn't that a synonym for pornography in the way you've been arguing the case?

Mr. Days, III: Yes.

If there are no further questions, I'd like to reserve the balance for rebuttal.

Unknown Speaker: Very well, General Days.

Mr. Fleishman.

Argument of Stanley Fleishman

Mr. Fleishman: Mr. Chief Justice, and may it please the Court:

When Congress enacted the Child Pornography Act of 1977, it deliberately treated the statute as the kind of... a kind of sexual offense statute where knowledge of the minority was not an element of the offense, as, for example, in the Mann Act, and the Mann Act was specifically referred to by the Department of Justice when it made its recommendations with regard to this statute.

Unknown Speaker: Is the word knowingly in the Mann Act?

I don't recall.

Mr. Fleishman: I believe not, Justice Ginsburg, but the--

Unknown Speaker: So in using that model, they should have just said transport in interstate commerce.

Mr. Fleishman: --Whatever that may be, Your Honor, I'm saying that if you look at the text of the statute and its legislative history, that is the model, I believe, that Congress used, and that therefore Congress deliberately and unambiguously omitted knowledge of minority because that's the way these statutes traditionally have been dealt with.

Unknown Speaker: Did they omit knowledge of pornographic character?

Mr. Fleishman: That's an arguable point, Your Honor, because the--

Unknown Speaker: Why is it... I don't see why it's any more arguable--

Mr. Fleishman: --Well--

Unknown Speaker: --than the other.

You seem to take the position that the statute does require knowledge that the photographs depict sexual conduct--

Mr. Fleishman: --My--

Unknown Speaker: --but does not require knowledge of minority.

It seems to me if requires the one, it requires the other.

Mr. Fleishman: --My position, Your Honor, is that the text, the statute read literally does not require knowledge with regard to either minority or the... and I prefer not to use the word pornographic, if Your Honors don't mind, because the term is sexually explicit conduct, and the term sexually explicit conduct is extraordinarily broad, and it includes... all nudity, frontal nudity has been interpreted as being sexually explicit conduct, so we're not talking about pornographic material alone.

We're talking about adult material, and we're talking about mainline material.

Unknown Speaker: Adult material?

Mr. Fleishman: Adult material, Your Honor, as we talk about it in this context.

Unknown Speaker: And this is different from pornographic--

Mr. Fleishman: Yes, Your Honor, in many respects.

In any event--

Unknown Speaker: --Call it what you--

--Mr. Fleishman, may I just interrupt you at this point?

If that's all Congress had in mind as an object of knowingly, what was the policy behind it?

If, for example, a very high proportion of visual depictions... is that it?

Yes... visual depictions which are shipped or transported did, in fact, depict the kind of material that Congress wants to penalize here.

I could understand why Congress would say, we will make the knowing element only go to the shipment of the visual depiction, because that's going to pick up the risky stuff, but that's not the case.

Most visual depictions shipped in interstate commerce, I presume, are not of this kind of material, so why did Congress bother to put in a knowing requirement, the object of which is basically innocent conduct?

Mr. Fleishman: --Well, if... to answer you, Justice Scalia's question a little further, because one answer that I've given is that the text itself does not require knowingly with regard to either minority or the nature and character of material, but if we go beyond the text of the statute, and we go to the legislative history, we have the answer to your question, Justice--

Unknown Speaker: Well, but without getting to legislative history, if I understand your position to be that the statute, properly read, is read as having only shipment of visual material as the object of knowingly, as the portion of the sentence modified by knowingly, by the adverb--

Mr. Fleishman: --Yes, sir.

Unknown Speaker: --then my question arises, and that is, what could the object of Congress have been in wanting to make sure that the defendant knew that he was engaging in a form of conduct which is by and large innocent?

Most shipment of visual material is not--

Mr. Fleishman: Correct.

Unknown Speaker: --shipment of pornography.

Mr. Fleishman: I agree with what has been said by Justice Scalia.

It was a badly drawn statute.

I think that Congress drew a bad law, and that's the simple answer to the textual argument.

Unknown Speaker: Well, it's a grammatical answer, but it doesn't answer the problem of meaning.

I mean--

Mr. Fleishman: Well, I--

Unknown Speaker: --you've got to give some meaning to this thing, and wouldn't anyone read that and say, well, surely they weren't wasting their time putting knowingly in there just to make sure that the shipper knew that he was shipping and knew that he was shipping visual material?

Mr. Fleishman: --And that's why I say, Your Honor, if we go to the next step, we go to what the legislative intent is, and that legislative intent is clear.

Unknown Speaker: Well, do you agree with me that if you don't go to legislative intent, we have, on your reading, what may be a grammatical reading, but a very foolish statute?

Mr. Fleishman: Oh, I agree 100 percent it's a poor statute, Your Honor.

I think it's an unconstitutional statute.

That's why we're here.

Unknown Speaker: Well, apart from unconstitutionality, we have a statute in which we just couldn't imagine why Congress was even bothering to put in the adverb, isn't that fair to say?

Mr. Fleishman: That is... the textual reading does lead to that result, Your Honor, and when you get to an absurd result, as that would do, then you go to, as I understand the rules, to the legislative history, and you go to the legislative history, it says that what we mean by the word knowingly is, the nature and character of the material.

That was explicitly said, stated by Judge Wald, then Assistant Attorney General.

That was explicitly what the Government believed the statute read for 15 years.

This is not a new statute, Your Honor.

For 15--

Unknown Speaker: It does present you with another serious grammatical problem, doesn't it, because grammatically, how do you separate in the text of this the nature and the character of the material from the minority status of the act?

Mr. Fleishman: --One could do that, Your Honor.

I prefer... well, one could do it in this way, because the statute reads, if you knowingly transport a visual depiction, so if you know that you're transporting a visual depiction, one could say you know the contents of that visual depiction.

If you know the contents, then you reach the nature--

Unknown Speaker: Knowing... you could have an illustrated Bible, visual depiction.

Mr. Fleishman: --I... Your Honor, the question that I'm trying to answer is--

Unknown Speaker: If you pick up a bunch of photographs at the drug store in an envelope, you don't necessarily know what's on the photographs.

Mr. Fleishman, your answer to Justice Souter, it seems to me, should be that yes, it does make a hash of the text to import only one of the two, only B rather than A as well, but we've agreed to make a hash of the text once we apply the knowingly to anything that comes after the if, so if we're making a hash of the text, let's make a reasonable hash of it and come up with a statute that we like better.

[Laughter]

Well, I'm not sure that a reasonable hash is the one that Mr. Fleishman wants to argue for, because a reasonable hash surely is not going to leave the statute as being construed to mean that Congress was only concerned with knowing the fact of shipment and knowing the fact of visual depiction.

I mean, I think you have agreed to that.

Mr. Fleishman: --My position is very clear, Your Honor.

The text of it is an absolutely unconstitutional statute without more.

I understand that when you have a statute where the text is unconstitutional, that sometimes the Court looks to legislative history.

Sometimes it does not.

I'm saying, once you agree that the text is bad, and you want to go to the legislative history, the legislative history will permit you to come to the conclusion that there is knowledge with regard to the nature and character of the material and--

Unknown Speaker: Why would you do that in a criminal statute?

If it's unconstitutional on its face, why would you look to save it by running to the legislative history when that wouldn't--

Mr. Fleishman: --Your Honor, I have no wish to save the statute.

I'm here saying it's unconstitutional.

All I'm saying is that if you want to go to make the best case for the statute... I'm trying to make the best case for a statute that is unconstitutional, and I think the best case is not good enough.

Unknown Speaker: --But we've also not simply gone to legislative history, perhaps we've gone to that less than said there's an implied mens rea requirement, you know, recklessly, knowingly, even where it's not written in the statute.

We did that last year.

Mr. Fleishman: Sure you did it last... but the rule that came out of the Staples case is that's only done when Congress has not manifested a contrary intent.

In this case, Congress has manifested a contrary intent both in the text of the statute and in the legislative history.

Unknown Speaker: Well, we also did it in the Nevada cash-reporting case.

We read knowingly to mean something that certainly wasn't necessarily present in the statute.

Mr. Fleishman: Well, that was read to include a specific intent requirement, Your Honor.

Of course, the Court does interpret statutes, but the one central rule is hat the Court will never interpret a statute contrary to the congressional will.

Once you have the congressional will, as we have it here, that Congress did not want to have knowledge of minority, then you cannot do what you did in Staples, because in Staples there was no congressional will that was to the contrary.

As a matter of fact, in Staples the Court pointed out that there was nothing one way or the other to indicate whether the--

Unknown Speaker: What is your basis for the statement that Congress did not want to require knowledge of minority?

Mr. Fleishman: --We... with regard to the text, Your Honor, when the S. 101, the Roth amendment was before the Congress, it was completely restructured in terms of the indentations and the place where the if was put to make it very clear that they were accepting the recommendation of the Department of Justice.

There are two things, Your Honor.

When this act was passed in 1978... the 1977 act... there were two sections, 1550... 2251 and 2252, and with regard to 2251, the Government agrees that the word knowledge was taken out, that it was taken out deliberately, and that there is no way that this Court could then read it back in because of the clarity with which the word... as to the meaning of the removal of the word knowingly.

Now, in that same legislative history, Judge Wald said, we'll leave the word knowingly in section 2252, but only... only for the purpose of showing that it has application to the nature and character--

Unknown Speaker: This was testimony of Judge Wald when she was in the Justice Department, before the committee.

Mr. Fleishman: --Exactly.

Unknown Speaker: I mean, that doesn't necessarily represent the final view of the committee.

Mr. Fleishman: No, it does not, but what does help us along that line was that that... it was not just testimony, it was written testimony which was appended to the Senate bill and the equal statement made by Attorney Keeney was attached to the House bill, both making the same statement with regard to why the word knowingly remained in 2252 but was not in 2251.

And the reason given, and the only reason for that was, so that it would reach the knowing, the nature and character of the material, but at the same time the statement said, but it does not require the Government to prove that the defendant knew that the material applied to a minor engaging in sexually explicit conduct.

Unknown Speaker: Mr. Fleishman, could you tell me why, assuming we accept your interpretation of it that it does require knowledge of a visual depiction, or one of your interpretations, but does not require knowledge of minority, why that would be unconstitutional?

Why would it be unconstitutional to say, look, if you want to transmit sexually explicit materials in the mail, to send or receive them, something short of obscenity but sexually explicit, or adult, if you like, you do it at your own risk.

You're welcome to do it, but if they're minors, it's going to be a criminal offense.

Mr. Fleishman: Because--

Unknown Speaker: Why is that unconstitutional?

Mr. Fleishman: --Well, as the general stated, that the single fact that transfers constitutionally protected material from criminal activity is the age of the person depicted and, therefore, what you would have is a very substantial infringement upon constitutionally protected--

Unknown Speaker: You mean--

--The same is true of the Mann Act.

Mr. Fleishman: --I'm sorry.

Unknown Speaker: I say, the same is true of the Mann Act, and with all the statutory rape cases.

Mr. Fleishman: Of course, that's true, Your Honor, but that does not involve any First Amendment problems, because here what we're talking about are books, all forms of media, and most of the--

Unknown Speaker: We've said the right to procreate is covered by the Constitution, haven't we?

Mr. Fleishman: --I'm not sure the analogy is one that is as powerful as it might be, Your Honor--

[Laughter]

--but with all due respect, what we have here is a statute that impinges on all forms of media.

We're not talking about... I know in the minds of some people this is just sort of pornographic material, but that's not what we're talking about.

It involves movies, it involves art books, it involves all forms of mainline material, and to say that all of this is put in jeopardy because the single fact that--

Unknown Speaker: Not all of it.

Only sexually explicit material, not all the whole world of literature and art and everything.

Just when you're dealing with sexually explicit material, you take your chances.

Mr. Fleishman: --Your Honor, sexually explicit material involves everything, if you don't... if I may say so because, first of all, the definition of sexually explicit material includes the actual or simulated lascivious exhibition of the genitals or pubic area of any person.

Any person, Your Honor, not any minor.

Unknown Speaker: I understand, and I'm willing to rely upon prosecutorial discretion not to go after the fellow who publishes a medical book or something like that.

Don't we--

Mr. Fleishman: I'm not talking about that, your Honor.

I'm talking about the person who publishes books or makes movies, and if it says that you're a criminal if it's the actual or simulated... and I want to repeat it, lascivious exhibition of the genitals or the public area of any person, not of any minor.

That is to say, of a--

Unknown Speaker: --Lascivious exhibition, right, so--

Mr. Fleishman: --Of any person.

Unknown Speaker: --Yes.

Mr. Fleishman: Yes, and when we get to--

Unknown Speaker: So it wouldn't cover a medical book at all.

It has to be a lascivious exhibition.

Mr. Fleishman: --Oh, well, I'm not sure of that at all, Your Honor, because the cases that I have read show, have shown that virtually any depiction of a nude... frontal nudity is considered lascivious by the juries and courts.

Unknown Speaker: So we don't need the adjective, I guess.

Mr. Fleishman: Well, I'm just saying that the term lascivious is so broad that we are talking about everything when we--

Unknown Speaker: I don't think it's broad at all.

I think it separates that exhibition of a naked, or depiction of a naked person from a lascivious exhibition of a naked person.

You think there's no difference, you're--

Mr. Fleishman: --Whatever lascivious may be, Your Honor, and I think that the problems that the Court had with regard to obscenity bespeaks that this is a problem that is not easily disposed of, but the truth of the matter is, Your Honor--

Unknown Speaker: --an obscenity law, then, but that's a separate problem, but given that there is such a thing as lascivious--

Mr. Fleishman: --But there isn't.

Unknown Speaker: --But there isn't?

Mr. Fleishman: There is not.

There is not--

Unknown Speaker: But our case law says that.

We made a distinction between pornography and other First Amendment protected speech, and you're saying that distinction is invalid.

Mr. Fleishman: --No.

Your Honor, the distinction that has been made, and I don't want to get on too fine a point, but the Court has ruled from obscenity to lewdness, and then we are now over into lasciviousness, which is something different than lewdness.

Your Honor will recall that when the statute was passed originally in 1977, the statute applied to lewd exhibition, and then somebody thought, well, that didn't reach enough.

Let's just make it lascivious, because then we're going to get some more material, too.

There is no case by this Court that I know of which gives a meaning to the word lascivious, and the Court has worked for some 20 years and more trying to give some meaning to the word obscenity, so it is not... it is not fair to suggest that, just because the word lascivious is in there, that protects the art books, it protects the medical books, it protects the movies.

Unknown Speaker: It's in where?

This statute says sexually explicit conduct.

Mr. Fleishman: I'm sorry, Your Honor.

Unknown Speaker: This particular statute says sexually explicit conduct, right?

Mr. Fleishman: That's what the statute says, yes, Your Honor, but if Your Honor looks at section 2256(2)(E), it tells you what sexually explicit conduct is, and one of the things that it tells you is that it is what I've just read to Justice Scalia.

It also says that sexually explicit conduct is actual or simulated masochistic or sadistic abuse, without any further elaboration, and it should be noted that prior--

Unknown Speaker: Imagine that.

Mr. Fleishman: --Imagine that, yes.

[Laughter]

I dare say that every one of the detective books and magazines that's on the newsstands would fit this masochistic or sadistic abuse.

It does not say abuse for sexual purposes, even, as the statute originally did when it was enacted in 1977, and that was specifically taken out in the 1984 amendment.

So that what we have, then, is a statute... if we take out the knowledge of minority, is a statute that endangers all of us.

I think what Justice O'Connor said is true.

You're all child pornographers.

I mean, I don't mean to say it quite that way, but you have received--

[Laughter]

You have received this material, and if you didn't know, and actually if you do know, perhaps, you're caught in the web.

This is a very broad, a very dangerous statute.

Unknown Speaker: There is a longstanding exception for law enforcement officers from all sorts of criminal statutes, criminal trespass and so forth.

It doesn't make an explicit exception for a law enforcement officer with a warrant, but it's understood that that's an exception.

I don't really think that Justice O'Connor and I have to worry a whole lot about this statute.

[Laughter]

Mr. Fleishman: I'll be glad to defend Your Honor.

Unknown Speaker: And I don't think we have to abandon all notion of pornography in order to save ourselves.

Mr. Fleishman: Well, in any event, to come back to the statutory construction, there is another line that I think the Court should consider in terms of why the appropriate resolution of this case is to declare the statute unconstitutional on its face, because there are remaining constitutional problems that would be in the statute and I have already touched on two of them.

And that is, you will have to face the fact that section 2256(2)(E) is plainly unconstitutional on its face because it use... if for no other reason, but for the reason that it uses the word persons instead of minors, so you have it, if it's the actual or simulated lascivious exhibition of the genitals or the pubic area of any person.

I assume we can all agree that that statute, as written, is unconstitutional.

Unknown Speaker: Yes, but that only goes to what's sexually explicit conduct, and another part of the statute makes it clear that sexually explicit... visual depictions of sexual explicit conduct are not forbidden unless a minor is one of the persons depicted.

Mr. Fleishman: But the statute then should have said, of any depiction of a minor.

Unknown Speaker: It does say that--

Mr. Fleishman: It doesn't.

Unknown Speaker: --in the visual--

Mr. Fleishman: Well, but if Your Honor looks at 2256(2)(E), it says--

Unknown Speaker: --Well, yes, I know, but that's only a definition of what the sexually explicit conduct is.

Surely it is.

Mr. Fleishman: --But then the definition is too broad, I'm suggesting.

Unknown Speaker: Well, but the statute doesn't prohibit all visual depictions of sexually explicit conduct.

And just before it defines minor.

We don't erase the definition of minor when we get to the second definition.

Mr. Fleishman: Well, let's agree that Congress made a mistake there, that's all.

They should have used the word minors.

Unknown Speaker: But they didn't make a mistake, so... at least I think several of my colleagues and I feel that way, that because the definition refers... what you're talking are the terms of defined sexually explicit conduct.

In addition to that, there's a requirement the person be a minor.

Mr. Fleishman: May I just read the statute?

It's actual or stimulated lascivious exhibition of the genitals or pubic area of any person.

Now, Your Honor is saying they didn't mean... I know what's behind it all, but the language used is bad.

Let me put that aside.

There is another problem that will be hanging over for the Court and with deep constitutional... a deep constitutional cloud, and that is section 2251.

It, everybody agrees, deliberately, unambiguously omitted the word knowledge so that it does not apply to the minority of the person.

Unknown Speaker: Well, it does in subsections (a) and (b), but it doesn't omit it from subsection (c).

In other words, it omits the requirement of knowledge for the offense of employing the minor, and it omits the requirement of knowledge on the part of a parent or guardian allowing the minor to be used.

Mr. Fleishman: Right, Your Honor.

Unknown Speaker: It doesn't omit the knowledge requirement in the advertising section.

Mr. Fleishman: But I'm talking about section (a) for the moment, Your Honor, and if we agree for the moment that section 2252 would be unconstitutional if it did not have knowledge of minority in it, in section 2252, we agree to that--

Unknown Speaker: I'm not sure of the proposition we're agreeing to.

You said the Government conceded the unconstitutionality of 2251 without a knowledge requirement, but General Days just explained the difference between the one who makes the film and the one who is simply distributing it.

Mr. Fleishman: --I understand that, Your Honor.

What I'm saying is this.

If, hypothetically, section 2252 is unconstitutional because it does not have a scienter as to minority requirement in it, if that's true, and if it's true that 2251 does not have a scienter requirement in it, then it would seem to follow logically that for the same reasons that 2252 would be unconstitutional, 2251 would be unconstitutional, so you would have--

Unknown Speaker: But that ignores the distinction that Justice Ginsburg just mentioned, attributing it to the Solicitor General.

The subsections of 5-1 which omit the minority requirement are kind of action subsections, employing minors, allowing minors to be used, as distinct from knowledge of the content of written material.

There's the distinction.

So maybe 5-1 is unconstitutional.

I'm not suggesting that it is, but if it is, it is not simply because it follows from the unconstitutionality of 5-2.

Mr. Fleishman: --I'm not... the purpose of this argument, Your Honor, is not to say that it is, in fact, unconstitutional.

I'm just saying that it would have a heavy cloud upon it, and it would be helpful for Congress to clean up the whole--

Unknown Speaker: Well, you then say no distinction can be made between, can reasonably made for this purpose between the kind of obvious First Amendment subjects of written material, and the kind of ostensibly non-First Amendment subject of employing and allowing them to be employed.

Mr. Fleishman: --At this time, Your Honor, all I'm saying is that there would be a serious constitutional cloud on section 2251 without saying that it would necessarily be unconstitutional, and that would be a prudential reason for the Court to find this statute unconstitutional, because it does have a lot of vices in it, and the Court could then be helpful to Congress in terms of letting Congress pass a law that's--

Unknown Speaker: You say that--

Mr. Fleishman: --also correct.

Unknown Speaker: --You say that we should say that 2251 is unconstitutional?

Mr. Fleishman: No, Your Honor.

No.

What I'm saying is that the Court should say that there would be a serious problem with regard to the constitutionality of 2251, if it were necessary to save 2252 to read a knowledge--

Unknown Speaker: What if we didn't agree that there was any serious constitutional problem with respect to 2251?

Mr. Fleishman: --Well, then you wouldn't say that.

Unknown Speaker: That's what I would think.

Mr. Fleishman: No, I would not--

[Laughter]

I should hope not, but I am suggesting that, to the extent that 2252 is unconstitutional if it does not have this knowledge requirement, then there is a powerful argument to be made that 2251 might be unconstitutional for the same reason, and it would be poor policy to save 2252 and leave 2251 hanging out there for the next, as the next target.

In this way I think the Court could be very helpful, not only to Congress, but more importantly to the First Amendment, in terms of to people who actually have to deal with this type of materials.

Unknown Speaker: Suppose that you did think that the strict liability as to the age of the person depicted--

Mr. Fleishman: Yes, Your Honor.

Unknown Speaker: --raised a constitutional problem.

Mr. Fleishman: Yes, Your Honor.

Unknown Speaker: Suppose, for example, you thought a lot of people who were going to ship material that they had a constitutional right to ship, say of adults--

Mr. Fleishman: Yes, Your Honor.

Unknown Speaker: --or works of art, or whatever, some not works of art, but regardless, they had a constitutional right, would have to err on the safe side, and therefore they would have to refrain from shipping material that they had a constitutional right to ship.

Mr. Fleishman: Yes, Your Honor.

Unknown Speaker: Suppose you believed that, but you thought the statute might be saved by importing a scienter either of recklessly or of knowingly.

How would you decide which of those two would be the appropriate scienter requirement for this statute?

Mr. Fleishman: I would say neither, and I would say that the requirement should be specific intent, specific intent something like what you have in the Cheek case.

After all, if there are difficulties in terms of what's involved, in terms of what the meaning of the statute is, at the very least a person ought to know that he's committing a crime.

There's just... the ambiguity with regard to the minority aside for the moment, there are a lot of other problems in here where a person can be a perfectly innocent, law-abiding citizen and be trapped into this broad law, so if you're going to try and save it at all, I would say that it has to have specific intent.

Your Honors did that, as the Chief pointed out earlier, in the case that you wrote, Justice Ginsburg, with regard to the Nevada case where there was specific intent with regard to the money-laundering.

If you have specific intent there read in, it would seem to me it's more appropriate to read a specific intent into a statute, a criminal statute of this type of severity where the First Amendment's interests are so strongly at play.

Unknown Speaker: I thought that case involved construction of the words of a statute.

Mr. Fleishman: It did, Your Honor, but there were a number of constructions possible, and the construction that Your Honor gave it in terms of the willfulness was to make it a--

Unknown Speaker: Willfulness, the word willful was used in the statute--

Mr. Fleishman: --It was, Your Honor.

Unknown Speaker: --and the question was whether--

Mr. Fleishman: I think Your Honor did right.

I think that was a good decision--

[Laughter]

--and I'm saying it's a good model, and I think we ought to use that model now in terms of interpreting this statute if the Court wants to interpret it, but I do believe that this is a case where the Court should not interpret it.

I think this is a case where Congress has spoken, Congress has spoken clearly, unambiguously--

Unknown Speaker: --Thank you, Mr. Fleishman.

Mr. Fleishman: --Thank you, Your Honor.

Unknown Speaker: Your time has expired.

Mr. Fleishman: Thank you very much, Your Honors.

Unknown Speaker: General Days, you have 1 minute remaining.

Rebuttal of Drew S. Days, III

Mr. Days, III: Mr. Chief Justice, I will waive my rebuttal time.

Thank you very much.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Alexander v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:27 +0000

Case:

Alexander v. United States

Media File:

91-1526_19930112-argument.mp3

Related Transcript:

1992_91_1526_argument.xml

Transcript:

Argument of John H. Weston

Chief Justice Rehnquist: We'll hear argument next in No. 91-1526, Ferris J. Alexander v. the United States.

Mr. Weston, you may proceed.

Mr. Weston: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

Congress designed RICO to eliminate any business which has committed two or more predicate RICO offenses.

Such a business then becomes illegal and therefore forfeitable.

Under the First Amendment, the presumption is that no matter how many speech violations a business may commit, it retains its protected status because all unlitigated materials are presumed to be constitutionally protected.

This case then presents the collision between RICO and the First Amendment made inevitable by the 1984 congressional amendment adding obscenity to the predicate list of RICO offenses.

Unknown Speaker: Well, is... what... which of our cases do you rely on, Mr. Weston, for the proposition that when obscenity is charged, it is presumed that it is not obscene?

I take it that's what you're saying.

Mr. Weston: The mere fact of an accusation, Mr. Chief... if I understand the Court's question, the mere fact of an accusation does not serve to deprive the material that is being challenged of its protected status until such time as a court ultimately and finally determines that it is not obscene.

That is certainly the--

Unknown Speaker: Well, is that just a burden of proof proposition?

You're saying that anyone is... if it's a criminal prosecution, you're presumed innocent until you're found guilty.

Mr. Weston: --Not at all, Your Honor.

With the... with respect to the materials alleged to be obscene, a host of cases, including all of the so-called search and seizure cases, Marcus and Quantity of Books, Fort Wayne Books, and a host of others, have all stood for the proposition that even where material is being accused by government of being obscene until such time as it is finally determined to be obscene, it may not be removed from the public totally because to do so would constitute a total prior restraint.

And, in fact, in Heller, this Court went so far in 1973 as to note that where a single motion picture film was available to an exhibitor seized by government as part of an obscenity prosecution, it was the duty of government to make at least a copy of that film available or to permit the defendant to have a copy of the film so that the film might continue to be exhibited until such time as it was ultimately determined to be obscene.

Unknown Speaker: Yes.

That established that you can't seize it under those conditions.

I don't think it established the proposition that you're talking about.

Mr. Weston: Well, with all respect, I see no difference with respect to that, Your Honor, that if the material is presumed to be protected until it is ultimately deprived judicially of its protected status, under that circumstance, it retains the presumption of protectedness and simply may not be removed.

Our point, however, is with respect to this case, that other than the seven items determined to be obscene by the jury in this case, all of the other material that was seized and destroyed by the Government pursuant to the forfeiture order was neither alleged nor proven to be obscene.

And the Government is quite candid in that the nature of the material is totally irrelevant.

It might have been sexually oriented.

It might have been erotic, but it just might as well have been a book on how to improve one's bridge game or build a garden or a videotape dealing with Bambi or Aladdin.

The point is--

Unknown Speaker: Do I understand that all this material was burned?

Mr. Weston: --Yes, Your Honor.

It is our understanding that all of the hundreds of thousands of books, magazines, videotapes, and films seized from the... representing the entirety of petitioner's inventory, without any consideration or allegation or determination of the protected or unprotected status of this material, was seized by the Government, carted away, and burned in an incinerator by the Federal marshal.

Unknown Speaker: These were also called sexually oriented materials or not?

I mean--

Mr. Weston: Not... the record--

Unknown Speaker: --The Last of the Mohicans?

What are we talking about here?

Mr. Weston: --The record does not reflect that, Your Honor.

There were certainly some items--

Unknown Speaker: What was the business in question?

Mr. Weston: --The businesses represented a number of different businesses.

They were video stores, adult bookstores, adult theaters.

Unknown Speaker: What... adult bookstores.

What kind of video?

Were they adult video stores, so-called?

Mr. Weston: Much was probably adult video, Justice Scalia.

The entirety of it was not, but from the First Amendment perspective, none of this material... none of the status... none of the nature or determination or character of the seized material was alleged.

And clearly under this Court's consistent decisions, the first Amendment requires judicial blindness to the nature of the material that was seized without any judicial focus whatsoever.

Unknown Speaker: As far as the seizure is concerned, but--

Mr. Weston: And the destruction.

Unknown Speaker: --there was an objection here--

Mr. Weston: The destruction--

Unknown Speaker: --Once it's the Government's property... I suppose if the Government appropriately took control of it and possession of it and ownership of it, I suppose the Government can do with it what it wants, and the objection to whether the Government ought to have burned it or not probably should depend on what its character is.

Maybe the Government didn't want to be in the pornography business.

Mr. Weston: --Well, that may be, and I understand that perspective, although with--

Unknown Speaker: Your objection is to the seizure of it and the... placing the ownership in the Government, not to what the Government does with what it owns I assume.

Mr. Weston: --Absolutely, Your Honor, except to the extent that the Government's destruction of the material, certainly at a time of enormous national debt, when all proceeds from sale of seized material would certainly go to reduce that debt, bespeaks a governmental purpose to remove protected or presumptively protected materials from public circulation in a way that certainly ought to arise the interest in anti... in constitutional protection of both this Court, as well as all of--

Unknown Speaker: Mr. Weston, would you be making any objection if what had been done was simply to require the sale or disposition of all the presumptively protected materials and to turn the proceeds over to the Government?

Mr. Weston: --That's a very tricky and interesting question, Justice O'Connor, and the answer to that is yes.

And frankly, the Government--

Unknown Speaker: Yes, you would be making--

Mr. Weston: --Yes, we would make the--

Unknown Speaker: --the same First Amendment claim?

Mr. Weston: --Yes, Your Honor, and the reason for it is well demonstrated by what happened in this case because the moment the Government acquires title to the materials, it then has the absolute determination as to whether it's going to leave the materials in public circulation or whether it isn't.

Unknown Speaker: Well, suppose it doesn't take title to the materials.

It instructs the... your client to dispose of it and turn the money over to the Government.

Mr. Weston: In that case, an aspect of the prior restraint doctrine would be satisfied or would be finessed, in a sense, in that the public would not necessarily be deprived of the materials.

But it certainly doesn't deal with the right of the disseminator to be able, in an untrammeled way, to continue to disseminate presumptively protected materials--

Unknown Speaker: Well, for goodness sake.

Suppose the Government decided because of the RICO violations to seek a prison sentence of this person.

Mr. Weston: --But in that--

Unknown Speaker: I guess he could be imprisoned for a criminal violation of RICO.

Mr. Weston: --No question, Your Honor, but the--

Unknown Speaker: And that might discourage his business activities for a while.

Mr. Weston: --Discourage, but not necessarily or inevitably or immediately in every case eliminate them.

And that really becomes the critical difference.

Unknown Speaker: Oh, you assume that the business could continue to be operated while the person is in prison?

Mr. Weston: Yes, absolutely, and particularly in the context of today's modern business world.

Corporations conduct most businesses.

If the president of a corporation is placed in jail, the corporation continues to function, and the business continues to disseminate presumptively protected materials.

Sadly, we have seen all too often in recent years the presidents of major corporations incarcerated and business goes on in the same way, although hopefully in a more law-abiding fashion.

Unknown Speaker: In fact, that happened here, didn't it?

I mean, your client was in prison.

Mr. Weston: Oh, no, absolutely not, Justice Scalia.

Unknown Speaker: He was not in prison?

Mr. Weston: He was in prison.

Unknown Speaker: But the business did not continue to operate while he was?

Mr. Weston: The business was totally... in fact, that's exactly the point.

What the Government did here was to completely eliminate the business and completely impose the total prior restraint because the forfeiture order--

Unknown Speaker: I'm not talking about this conviction.

I'm talking about prior convictions.

My understanding was that there had been prior convictions on obscenity charges.

Mr. Weston: --The predicate RICO acts did not include or allege any prior conviction.

The record does not reflect that there was a prior conviction.

As an officer of the Court, I advise, Your Honor, that in 1969 or 1970 there was an obscenity conviction of Ferris Alexander, followed some years later by an acquittal, followed by almost 20 years of nonprosecution at either the State or the Federal level, the point being that under this statute, which is what is obviously before the Court, what was done here was on the basis solely of jury determination that seven items were unprotected.

Literally hundreds of thousands of books, films, magazines--

Unknown Speaker: Mr. Weston.

Mr. Weston: --Yes, Mr. Chief Justice.

Unknown Speaker: Is that the actual correct comparison?

You say seven items were unprotected, and then hundreds of thousands were not determined.

But wasn't there more than one copy of each of those seven items?

Mr. Weston: The indictment alleges, Your Honor, that with respect to some of the materials, there were multiple copies received in interstate commerce by my client in Minnesota.

The substantive provisions, the 1466 counts which reference possession with intent to sale or sale, do not indicate whether there were more than one copy.

They are silent with respect to that.

Unknown Speaker: Did the record of the trial... I mean, because your... when you say hundreds of thousands, you're talking about--

Mr. Weston: Different titles, Your Honor.

Different titles.

Unknown Speaker: --Hundreds of thousands of different titles.

Mr. Weston: Hundreds of thousands of different titles is what we believe to be the case with respect to videotapes, films, magazines, individual media items.

And I'm trying to--

Unknown Speaker: Yes.

Mr. Weston: --Because I think I understand the Court's question.

I am not saying a million copies of three titles.

We are saying scores of thousands, perhaps hundreds of thousands.

Perhaps I engaged in some hyperbole for which I apologize, but scores of thousands, many thousands of different titles were seized and destroyed, all of which had neither been alleged to be obscene or determined to be obscene, coupled with--

Unknown Speaker: Is there some transcript or record that you can refer to that establishes this?

Mr. Weston: --The... yes, there are... there is a transcript.

Offhand, I confess, Mr.--

Unknown Speaker: But someone got up and testified that this... there were scores of thousands or something like that?

Mr. Weston: --Let me suggest this and perhaps this will assist the Court.

Unknown Speaker: Well, did... I'm asking did someone--

Mr. Weston: Yes.

There was... the trial court in its sentencing order noted it, and more importantly... and I'm sure the Government would not contest this, but at the forfeiture hearing, the Government put into evidence in an attempt and, we respectfully submit, a constitutionally irrelevant attempt... but to somehow characterize what the nature of the business was... at least 400 different, separate videotapes, none of which had been alleged to be obscene, and perhaps 20 or 30 magazines and books and so forth.

So, whether it be 100,000 different titles or 50,000 or 10,000 different titles, the number of different, unlitigated titles was extraordinary.

But let us not stop there simply with the media items because the media items, large as they were, whatever the number was, are an extraordinary minimal portion of the terrible prior restraint that was imposed here because 10 media businesses, the equipment necessary to support the dissemination, plus the businesses themselves, were taken over by the Government and closed in a geometric fashion, totally therefore eliminating not only the dissemination of all materials that presently existed in the universe, but all those which might have been created in the future which could have been disseminated--

Unknown Speaker: --Mr. Weston, as I understand it, you would have had... you say you would not have any objection to that under the First Amendment if the predicate offenses had not been speech offenses.

Mr. Weston: --That is correct, Your Honor.

This Court in Arcara made very, very clear that where the predicate conduct has no communicative quality, whether it be conduct with some... as Justice O'Connor--

Unknown Speaker: You can take away all the media businesses.

Mr. Weston: --In Arcara, that was the holding of this Court.

Unknown Speaker: Right, okay.

And similarly, as I understand it, you would have no objection if it was a speech offense for the predicate RICO offense, and the punishment, no matter how severe, life imprisonment, was not the taking away of media businesses or of media documents, books, and so forth.

Mr. Weston: I understand.

Unknown Speaker: Right?

Mr. Weston: No, Your Honor.

Unknown Speaker: No?

Mr. Weston: There would be no per se description of that penalty as being a per se prior restraint.

As in the potential of a high fine, the potential of a jail sentence may or may not in any case constitute a First Amendment problem.

Unknown Speaker: Well, you see, I don't see how... what you're doing is combining two positions, neither one of which alone would be... would violate the First Amendment on your admission.

And you say that somehow when you combine the two, although they don't reinforce each other as far as I can see, it is a First Amendment objection.

There are two problems involved.

One is the chill of the speech.

Right?

And the chill could be affected just as much by imprisonment as by taking away the person's business.

Right?

Mr. Weston: But we're not... in this argument, Your Honor, although this Court has frequently noted that one of the vices of a prior restraint is the chill... I mean, in the Pittsburgh Glass Company case cited by the Government, that's exactly what the concept is.

But the point that we're making primarily here is that it is the prior restraint which invalidates in every case the RICO sanction as... the RICO forfeiture sanction as applied to speech predicates because in every case, speech will inevitably and immediately be suppressed, the taking of the books, the closing of the store, and so forth, whereas--

Unknown Speaker: Speech will inevitably be suppressed whenever you go after anybody in the media business under RICO, whether it's for a speech offense or for any other offense.

Right?

Mr. Weston: --I see the Court's point.

Unknown Speaker: Yes.

Mr. Weston: But the classical difference is, as pointed out by Near and in a host of subsequent cases, there are special rules, special concerns, that we have for the First Amendment, and the nature of the injunction that was issued in Near would have caused no problem if, as in Arcara, the predicate or triggering conduct had had nothing to do with speech.

Why was it that this Court... forgive the rhetorical question, but this Court struggled and wrestled with the problem in Arcara because, in fact, a bookstore was enjoined.

The ultimate conclusion was that where the triggering conduct either had no speech at all or had no communicative content or no expressive conduct which was involved in the sanction, that it simply was not a prior restraint.

But the obvious implication, if not explication, in both Chief Justice Burger's opinion and in Justice O'Connor's concurring opinion is that where the triggering activity was either speech or had communicative conduct or, as Justice O'Connor noted, where a nonspeech triggering statute had been used as a pretext to impose censorship in the interest of decency, then there would have to be a First Amendment analysis.

And in this case, the only underlying conduct, the only triggering or predicate conduct is unquestionably speech.

We are out of Arcara.

We are back in Near.

We are back in Kingsley.

We are back in Marcus and Quantity, and the First Amendment analysis unquestionably applies.

And what is also clear in this case is that there was no pretext for the use of RICO to close down this business.

That was what the statute was designed to do, to eliminate a speech business because an... in this case... an isolated number of its titles had been determined to be obscene.

And I ask the Court to consider--

Unknown Speaker: What about fraud convictions?

Are they speech convictions?

Mr. Weston: --Inherently--

Unknown Speaker: Inherently you said, but--

Mr. Weston: --No.

Forgive me.

I was trying to analyze it.

One must look at the nature of the conduct.

Fraud will not necessarily involve a speech situation.

Unknown Speaker: --You have to make a representation, don't you?

Mr. Weston: Well, we'll have to see what the underlying conduct is and then to try to examine it.

The--

Unknown Speaker: It's always performed by speech, by communication.

Now, that speech is unprotected to the extent that it commits a fraud, and the speech in this case is unprotected to the extent that it becomes obscenity.

Mr. Weston: --That--

Unknown Speaker: I'm hesitant to say that no media business can be--

Mr. Weston: --Where the underlying--

Unknown Speaker: --taken for fraud.

Mr. Weston: --And we are not asserting that.

And, for example, there may well be a situation in a copyright infringement situation where a print shop prints copyright violational materials, where the underlying concern is not the expression, as in the fraud case, but what the concern is is the content of the material.

This statute is content based.

It is designed to prohibit and punish content, communicative content, of the expression in a way that either the fraud or some other print type thefts or property... interferences with... are not.

In this situation, this is speech, and this is exactly what the situation was in Near where the contents of the Near publication were, although denominated a public nuisance, analyzed and determined that it was the expressive content of the speech which is what gave it... although in and of itself, each item of speech, each of the nine issues of The Saturday Press over the 3 month period were themselves deemed to be outside constitutional protection, nonetheless, that did not permit Government under any circumstances to be prospectively able to interfere with any other kind of speech.

Unknown Speaker: But you don't claim that this case is governed by Near, do you?

Mr. Weston: Yes, Justice Souter, we find that Near is--

Unknown Speaker: Well, in the Near case, any further publication by the publisher of The Saturday Press was enjoined, and in fact, no one else was publishing The Saturday Press; whereas, in this case, we have no reason to believe that there aren't... that the publishers of the material seized aren't going to go right on publishing it and other distributors are going to go right on distributing it.

And we have no reason to believe that when this individual gets out of prison, he can't go right on doing those things too.

So, I don't see how Near covers this situation.

Mr. Weston: --But there was no suggestion in Near that Mr. Near's brother or his neighbor or someone who shared his virulent anti-semitic passion couldn't pick up the publication and continue to publish it in exactly the same way.

Unknown Speaker: Well, Near didn't decide that one way or the other, did it?

Mr. Weston: Near was silent with respect to it.

Unknown Speaker: That's right.

Mr. Weston: But the... but with all--

Unknown Speaker: Your... maybe I misunderstood your argument.

I thought you were analogizing your client to the publisher in Near, and all I'm saying is that he does not bear a very close analogy because, A, he is not enjoined from further distribution and, B, no one else is enjoined from distribution.

Mr. Weston: --The aspect of the injunction... merely because an injunction was issued in the case is certainly, with respect, not dispositive of the nature of what the fundamental Near holding is.

By analyzing the operation and effect of the sanction in the case, as we are directed by Near to do, Near was prevented from dealing with future unlitigated publication.

There was a speech sanction that was imposed on Near from going forward and disseminating presumptively protected material in the future, and the Court said no, you... that is an impermissible restraint.

In Keith... in Citizens for a Better Austin v. Keith, the injunction, although it was an injunction, was even broader.

The enjoined party could disseminate nothing prospectively.

The point is in this case unlitigated, undetermined speech... presumptively protected speech was seized and destroyed.

An analogy to Near's incapacity to be able to go forward and continue to publish what it was that he determined that he wanted to publish, so too Ferris Alexander was deprived the opportunity at the 10 locations to be able to disseminate the material which he, in his editorial judgment, chose to disseminate.

Unknown Speaker: Well, what if the offense were the failure to pay taxes, as was also alleged here I guess?

Can the Government seize all the inventory and dispose of it for the failure to pay the taxes without invoking the concerns of a prior restraint?

Mr. Weston: In this case, Your Honor, of course... and I say this for the record, that none of the RICO predicate conduct or any of the forfeiture was attributable to the tax case.

But in response to the Court's specific question, a civil judgment or a tax judgment may certainly be satisfied from whatever assets there are to be satisfied.

But then, once again, what triggers the sanction is not speech, and the Constitution, just as in Arcara, does not say that no speech business may be subject to regulation in the same way that zoning or fire or safety and so forth would be.

And just as in any situation where a civil judgment might be satisfied from a completely unrelated situation... the owner of a bookstore hit a... in an automobile killed somebody, and certainly a civil judgment could be used to satisfy that.

But the point is that from the jurisprudence with this Court dealing with First Amendment matters, unlitigated, presumptively protected speech may not be interdicted, destroyed, taken out of circulation simply because other media materials have been determined to be obscene.

And if--

Unknown Speaker: Mr. Weston, can I ask you a question about your theory?

I understand what you're saying about speech both causing it and being what's forfeited.

What if what was forfeited was... say American Airlines showed a couple of obscene movies on a flight.

Would you say that that would justify forfeiture of the whole airline?

Mr. Weston: --No, Justice Stevens.

Unknown Speaker: But under the statute would it?

I'm curious about how the statute operates.

Here his entire business was forfeited because a half a dozen or so obscene items were seized.

Would the statute operate in the same way in my hypothetical?

Mr. Weston: Absolutely.

For two or more--

Unknown Speaker: But you're saying that would not violate any... that would be perfectly constitutional to take over the airline--

Mr. Weston: --No, we're not--

Unknown Speaker: --because they're not engaged in the speech business.

Mr. Weston: --No, Your Honor, we're not saying that, and for two reasons.

One, because it may well be... and I would assume in the circumstance that you suggested... that taking over the entirety of the airline would certainly affect a prior restraint on the airline's ability to be able to exhibit other unlitigated motion picture films.

But in this context--

Unknown Speaker: It's only for that reason, not because of the magnitude of the seizure.

You don't rely at all on the magnitude of what--

Mr. Weston: --Not the--

Unknown Speaker: --was seized in relation to the--

Mr. Weston: --Not from the--

Unknown Speaker: --small amount of what was--

Mr. Weston: --Excuse me.

Unknown Speaker: --the violation.

Mr. Weston: Not from the First Amendment perspective.

Of course, the Eighth Amendment might well speak to that, as we have raised in our--

Unknown Speaker: Mr. Weston, I take it you don't claim that the RICO statute did not authorize these seizures.

Mr. Weston: --Not only did it not... not only do we not claim that, Justice White, we affirmatively represent and argue that this judgment fairly and accurately did exactly what the RICO statute directed trial judges to do under the circumstance.

Unknown Speaker: So, you think the provisions of... you don't think you can find any basis for objecting to this forfeiture in the provisions of the statute authorizing the forfeiture.

Mr. Weston: That is--

Unknown Speaker: You don't think that this forfeiture that the Government insisted on was outside the provisions of the statute.

Mr. Weston: --Given--

Unknown Speaker: I mean, just as a statutory construction problem.

Mr. Weston: --Given the broad potential for forfeiture under 19... section 1963, what the Court did was commanded and directed by the statute.

Trial counsel ably argued that the forfeiture should be limited to the obscene materials and the proceeds specifically attributable, and under the grandiloquent phrase from Congress and from judicial decisions that the purpose of RICO is to extirpate the entire business root and branch--

Unknown Speaker: But it's the entire business... any contribution of the business, no matter how trivial, is the proceeds of a predicate offense?

Mr. Weston: --Under settled... under existing law that appears to be unquestioned as Judge Kozinski in the Ninth Circuit in U.S. v. Busher railed against in that case.

I would just like to conclude, if I may, Justice Stevens, with the second portion of the question that you had asked and that was this, that in the circumstance where the entirety of American Airlines might be seized because of the two or three films.

Under that circumstance, we would suggest that one would look to the motive underlying the statute in terms of its speech suppressive characteristics that the statute had been, whether it be, in that circumstance, to get at speech or more specifically in our own client's situation where it had been devised to get to speech.

We would suggest that the motive ought to be examined even though we well recognize--

Unknown Speaker: Now, is that as a constitutional matter or as a statutory matter?

Mr. Weston: --As a constitutional matter--

Unknown Speaker: No.

Mr. Weston: --in terms of dealing with--

Unknown Speaker: But under the statute, there... the prosecutor would have the same duty to seize the entire airline that he has here and seize the entire business.

Mr. Weston: --Absolutely, Justice Stevens.

No question.

Unknown Speaker: I would have thought you might make an Eighth Amendment argument somewhere along the line in response to these inquiries.

Mr. Weston: Thank you, Justice O'Connor.

As I thought I had mentioned to Justice White... or Justice Stevens, that there certainly would be an Eighth Amendment issue, whether it be under the excessive fines provision or the cruel and unusual punishment provision, that the confiscation of this business with the notion of forfeiture being tantamount to fines, as you observed recently, for Eighth Amendment purposes would constitute a grossly disproportionate penalty in connection with the underlying offense.

And this would be whether the underlying offense was analyzed under the Solem majority test or under Justice Kennedy's test as articulated in Harmelin.

I mean, this is the most passive kind of felony.

This is the sort of conduct which in Osborne this Court noted, in terms of the obscenity laws, were motivated by essentially a paternalistic interest in the subject matter.

It is the sort of offense which, again applying Justice Kennedy's form of analysis, is not the sort of thing which generates parallel or ancillary offenses and where there's no national consensus and connection with whether obscenity or erotic materials should be prosecuted.

Seven States have no obscenity laws, and there is certainly minimal or relatively minimal Federal enforcement in terms of numbers of places around the country of this particular--

Unknown Speaker: I take it you wouldn't be here making this argument if your client sold a reasonable amount of... well, an unreasonable amount of cocaine in his bookstores along with books.

Mr. Weston: --Absolutely... you're, of course, right, absolutely right, Justice White, that if there had been... and our argument is--

Unknown Speaker: Well--

Mr. Weston: --as in this case, that the sole predicate offense was speech, that if our client had been, as part of the predicate acts, indicted for the sale of cocaine, our argument is over because then--

Unknown Speaker: --Even though his entire business was seized.

Mr. Weston: --Absolutely.

We're constrained to--

Unknown Speaker: Well, wouldn't you still have an Eighth Amendment argument?

Mr. Weston: --Yes.

There may well be an Eighth Amendment argument with respect to that, but in terms... forgive me, Justice White.

I thought you were addressing--

Unknown Speaker: No.

That's all right.

Mr. Weston: --the First Amendment question exclusively.

Unknown Speaker: I see your red light is on.

Mr. Weston: Thank you.

Unknown Speaker: Thank you, Mr. Weston.

General Starr, we'll hear from you.

Argument of Kenneth W. Starr

Mr. Starr: Mr. Chief Justice, and may it please the Court:

Let me begin where we left off in this discussion.

As I see it, until the very end of his argument, Mr. Weston did not seem to be calling into question the basic proposition that this Court established, after hearing Mr. Weston's arguments to the contrary, in Fort Wayne Books that obscenity is not speech within the meaning of the First Amendment and that it can serve as a predicate offense for a RICO statute.

Secondly, he has now--

Unknown Speaker: Do you think it's entirely invisible to the First Amendment--

Mr. Starr: --It is--

Unknown Speaker: --after R.A.V.?

Mr. Starr: --To the extent that a final determination has been made that it is obscene, the First Amendment does not care and thus, in that sense, it is invisible once it has been... in terms of First Amendment values, yes.

It is invisible to the First Amendment.

Unknown Speaker: Do you think that's consistent with the holding in R.A.V.?

Mr. Starr: I don't think it's inconsistent with the holding in R.A.V. because R.A.V. did not seem to call into question... or R.A.V. was obviously concerned with content basis.

And I don't want to delay unduly in rearguing what may be a very intriguing dialogue within the Court about R.A.V., and I know the Court has now taken the Wisconsin case.

The basic holding in R.A.V.... and it was a unanimous holding... was that that ordinance had to fall because it was content based.

This Court has held that as serious as content based kinds of distinctions are, obscenity is a different matter, and obscenity is not protected within the meaning of the First Amendment.

Now, the second aspect... and I think this is an important part of the argument... that is not being contested is Arcara, that if in fact there is a, as he would say, nonspeech predicate, there can, in fact, be forfeiture of what he considers First Amendment expressive materials.

What I think we have seen today is, first of all, an assault on Fort Wayne Books without his having said in the petition that he wants to see Fort Wayne Books overruled.

Accepting the proposition that Fort Wayne Books and the value of stare decisis is still good constitutional law and taking that with Arcara, we get exactly where Justice Scalia was suggesting that we get in this case, that we somehow, combining those two holdings, end up with a violation of the First Amendment.

That ends up being quite a remarkable proposition that is unfounded in this Court's First Amendment jurisprudence.

What really seems to be at issue here is the sense of disproportionality, that the defendant, the petitioner, stands convicted of seven obscenity offenses, and yet this entire business enterprise, including what he considers presumptively expressive and protected materials, has been forfeited to the Government.

Unknown Speaker: Is there anything in the record to show us the extent of the forfeiture or what was taken?

Mr. Starr: Yes.

I refer the Court to the petition appendix and the thorough opinions by Judge Rosenbaum where he goes through a very careful analysis of 1963(a)(1), (a)(2), (a)(3), and showing what parts of the business proceeds, interests, corporations, and so forth are being forfeited and why each is being forfeited appropriately under the statute.

And that gets, by the way, to part of the response I think to this sort of intuitive sense that can be put most comfortably I think in Eighth Amendment terms that there is wild disproportionality at work here.

That is not so for the following reasons, and if I may, let me share with you a bit of the record in the case, not what the film--

Unknown Speaker: Why don't you just tell us about the record, rather than share it with us.

Mr. Starr: --The record tells us, Mr. Chief Justice, that there were essentially here 10 businesses and adult theaters that were engaged in the sale of literature and movies that all partook of the same nature.

They were adult entertainment materials.

That's what this was all about.

The Government offered to introduce into evidence not only the obscene materials, and at the jury trial the first film that was shown, She Male Encounters, 80 minutes was displayed to the jury.

Additional films were displayed to the jury.

The Government, anticipating the very kind of argument that was eventually made at the court of appeals and in this Court, said there are others, and we are prepared to introduce those.

An objection was interposed on relevancy grounds.

In addition, at the forfeiture phase of the trial, there was, as my colleague on the other side has indicated, introduced to the court 400 plus videos and magazines that the district court at page 153 of the petition appendix specifically found are of the... without making the same kind of elaborate review of every minute of the movie or every aspect of the book, were of the same nature.

But ultimately what the court also had before it and what the jury had before it was an enterprise that was rife with criminality: secreted assets, under reporting of income--

Unknown Speaker: Mr. Starr, is that part of your case?

Mr. Starr: --Yes, it is.

It's not--

Unknown Speaker: That was necessary to prove that?

Mr. Starr: --It's not necessary, but it's part of my case in the sense that if you read the indictment, the indictment alleged various tax offenses and fraud--

Unknown Speaker: Is it not correct that the obscenity offenses were the only predicate offense?

Mr. Starr: --Absolutely, and I don't want to mislead the Court--

Unknown Speaker: Then why do we talk about the other offense?

Let's assume he's a real bad person for all these other reasons.

Mr. Starr: --Because it tells us about the nature of this enterprise and the criminality of the enterprise in--

Unknown Speaker: But is that... tell me this because I really am curious because the statute is a difficult statute to understand.

Do you agree with your opponent with respect to his answer to my hypothetical about American Airlines, that you would have the authority under the statute to forfeit the entire airline if they showed three or four obscene movies in a flight from here to California?

Mr. Starr: --Absolutely not.

Under... and the reason is the statute, 1962, talks about a pattern of racketeering.

This Court in HJ, Inc., this Court in Sedima--

Unknown Speaker: Well, but you had a pattern of racketeering with six obscenity offenses.

That's enough, isn't it?

Mr. Starr: --But we were--

Unknown Speaker: Under the statute I mean.

Mr. Starr: --But we were prepared to show much more--

Unknown Speaker: No.

I know you could have proved a lot more, but is it not true that under the statute, all you had to prove was six obscenity offenses to get your pattern of racketeering--

Mr. Starr: --To show that, in fact, there was a pattern of racketeering, and then the other elements of the enterprise, that the enterprise was used in the offense.

That is to say, to take your American Airlines--

Unknown Speaker: --Right.

Mr. Starr: --If a division manager or if the president himself of American Airlines, if Mr. Crandall orders the showing of this, it doesn't mean American Airlines is going to be forfeited.

He may... it is in personam.

This operates in personam.

If it's corporate policy, yes.

I would have to say, Justice Stevens, that there is the possibility that we would have to analyze the corporation's liability.

But recall--

Unknown Speaker: Well, it helped sell a few tickets to the... from here to California.

Isn't that enough?

Isn't that all you need under the statute?

Mr. Starr: --Not at all in terms of corporate... I'm trying to draw a distinction between what I understand you to be concerned about, which is forfeiture by American--

Unknown Speaker: I'm concerned about the disproportionately problem--

Mr. Starr: --Exactly, forfeiture of an entire airline on the basis of these few offenses.

My response--

Unknown Speaker: --Each of which contributed to the running of the business because it induced some people to take the flight that they might not otherwise have taken.

Mr. Starr: --I would have to know, first of all, whether this was, in fact, corporate policy, board of directors approved policy, and the like when we're talking about a corporate forfeiture as opposed to the in personam forfeiture of Mr. Crandall's own interest in American... Airlines because he has to, under the statute, use this enterprise for criminal purposes.

That's the evil that the statute is getting at, and that's what was built up here.

Unknown Speaker: Well, let's assume the board of directors approved the schedule of the flight, you know, what... the movies they're going to show on the flight to California.

It's rather unlikely, but assume they did.

And they decided that there were six very interesting Swedish films that--

[Laughter]

--might be very attractive to a lot of travelers, and they decided to show them.

They turn out to be obscene, and they had advertised them.

They could forfeit the whole airline.

Mr. Starr: I don't think so under this Court's interpretation in HJ, Inc. of the statute, which we don't quarrel with.

In fact, we think it's quite correct because it is the statute's concern, Congress' concern, about what the Court called the pattern, that is to say, a threat of continuity.

This is--

Unknown Speaker: But you just told me six is enough for a pattern.

Mr. Starr: --I have suggested that it could be enough as long as there is the threat of continuity, and that is why I will not concede that any, other than the most irrational, corporation would knowingly, as a matter of corporate policy, continue and threaten to continue within the meaning of HJ, Inc.--

What this statute was aiming at and why this Court has seen since 1984 so little of these kinds of predicate offenses is the kind of empire that we saw here, one that is essentially given over to the display of materials that are very similar, as the district court saw, to those--

Unknown Speaker: Well, it may be... Mr. Starr, if I may interrupt you.

It may be very similar, but there is a crucial constitutional difference depending on whether there are six pieces which are obscene and 600,000 which are merely erotic.

And it seems to me that your argument rests upon the identification of what is assumed and probably correctly assumed to be simply erotic adult material with the six which were shown to be obscene.

And that's your way of sort of getting out of the analogy that Justice Stevens is suggesting, and I don't see how that's a legitimate basis.

I don't see how we can assume the identity of eroticism with obscenity.

Mr. Starr: --I don't think you have to make that assumption.

The point that I am getting at is can Congress constitutionally say once you prove the requisite elements of RICO, effect a forfeiture.

In our view, yes, that it is not disproportionate when, in fact, the enterprise is being used as the instrument for carrying out the criminal activity.

Here the pattern is the sale of obscene materials.

Unknown Speaker: And, General Starr, would you take the same position if a substantial amount of the inventory turned out to be Gideon's Bibles?

Mr. Starr: We would take the same position, that it is... that what RICO is getting at... and I think this is what is critical in terms of a First Amendment analysis, that RICO is neutral in terms of what it is seeking to obtain.

It is seeking to obtain proceeds and assets.

It does not care what those assets are, if they're cash registers or if they're Gideon's Bibles.

Unknown Speaker: There would be no First Amendment concern that would trigger even so much as an O'Brien test to the application--

Mr. Starr: Not as long as there is an appropriate predicate offense, and then I think there is an appropriate... as was noted in the concurring opinion in Arcara, a concern that Congress... that the Government may be getting at a business because it disfavors that particular speech.

Unknown Speaker: --Well, would the Government have burned the assets if it had turned out they were Gideon's Bibles instead of erotica?

Mr. Starr: I would seriously doubt that it would have, and one of the reasons that--

Unknown Speaker: So, does that mean it's somehow content based?

Mr. Starr: --Not at all.

Because of the Government's concern about the nature of these materials and not wanting, frankly, to traffic in obscene materials, the Government did not need to go into the business or otherwise dispose of these in any other way than to destroy.

I should note the fact that a number of these materials were, in fact, preserved and shipped to California, and I don't think there will be dispute with respect to that.

Moreover, the adult theaters were not forfeited.

The Government did not try to achieve a forfeiture of the adult theaters.

What it was, in fact, focusing on were these bookstores... and this was all before the jury in the case... photographs of the interiors of these... or these adult entertainment magazine and video kinds of centers.

And so, the jury had before it the nature of this enterprise and that prompted then at the forfeiture hearing the judge to conclude that what had been established here was a vast supply network that permitted this pattern of racketeering in terms of obscenity offenses in interstate trafficking in obscene materials to take place.

That is to say, what is RICO getting at?

It is an enterprise... an individual's use of that enterprise as the vehicle for commission of criminal offenses.

And when Congress took the step that it did in 1984 to include obscenity as a predicate offense... again Fort Wayne Books said that was all right to do.

It was all right for Indiana.

It was all right for Congress... it did so based on Congress' concern and understanding that pornography was, in fact, linked to organized crime and, in fact, was a major supply of source, financial resources, for organized crime.

That's why Congress saw fit to include it.

That is why the prosecutions that this Court has seen... there have been all of five.

This Court has seen two.

The Pryba case, which the Court had before it on certiorari, but did not take certiorari a few years ago.

All were the same type as what we have here, an organized criminal enterprise given over to the trafficking in obscene materials, and it also was characterized by these other aspects of secreted assets, hidden income, the use of nominees as owners of the corporation, and the like.

Unknown Speaker: Are you suggesting that if there weren't the evidence of the hidden assets and the tax offenses and so on, that the result under the... under RICO might be different?

Mr. Starr: I am not.

I'm not moving from my comment to Justice Stevens.

But in terms of why this case was brought, if there is concern about this case was brought because the Government disfavors certain kinds of speech, these are the kinds of prosecutions that the record shows that the United States has, in fact, brought.

There have been four or five obscenity predicate RICO prosecutions.

Two have made it to this Court.

Unknown Speaker: I don't quite understand what you're saying.

You're saying you do or do not disfavor this kind of speech if it's nonobscene?

Mr. Starr: The... we--

Unknown Speaker: Which were you saying?

I'm just trying... I didn't quite understand whether you said the Government did--

Mr. Starr: --I may have misspoken, Justice Stevens.

I am not prepared to concede, as Mr. Weston would have the Court accept, that obscenity is speech.

Unknown Speaker: --No, no.

I understand.

I'm assuming that there's a lot of this stuff out there that's not obscene.

We have to presume that.

And I'm asking you whether you're telling us that the Government disfavors the nonobscene, erotic material speech.

Mr. Starr: No.

That's not of interest to the Government.

Unknown Speaker: Then it's puzzling why you burned it all.

Mr. Starr: That is not of interest to the Government.

The Government's concern, Justice Stevens, was that these materials were of... as the district court saw who had the materials before him, of a similar nature.

And the Government is not interested either in storing these materials indefinitely, nor is it interested in selling these materials--

Unknown Speaker: So--

Mr. Starr: --which might be adjudicated to be obscene.

Unknown Speaker: --So, you're saying if the Government did, in fact, bring these RICO forfeiture proceedings only against sellers of pornography, that you would, indeed, have a problem of content based suppression.

Mr. Starr: At least, I think it's more likely... no, I don't concede that.

I do think that you might have a charge of selective prosecution.

Under this Court's analysis in Waite, that kind of argument can obviously be advanced.

It was not advanced here.

There's no discussion or suggestion by Mr. Alexander that he alone has been singled out for prosecution.

No.

As long as the Government is proceeding with obscenity as the predicate, it is abiding by Congress' intent and it is not making content based distinctions.

Unknown Speaker: Suppose it brought no other RICO... that's what I understood Justice Souter's questions to be.

The only RICO prosecution that the Government ever brings are obscenity prosecutions of this sort.

You wouldn't... you think that would be a basis to suspect that the Government is... has some antagonism towards the speech?

I would be prepared to consider that evidence of such antagonism.

If you brought no other--

Mr. Starr: If, in fact... but I think--

Unknown Speaker: --You have a few other RICO cases, don't you?

[Laughter]

Mr. Starr: --Oh, we have many other.

In fact, the United States... if there is some impression, Justice Scalia, that the Government is only bringing RICO obscenity predicate cases, we bring about 100 cases a year.

One or two of those a year are typically obscenity predicate type offenses.

But if, to accept the hypothetical, we were only using RICO which had seven or eight predicate offenses and using it only, I think, number one, one can obviously appropriately be concerned with the exercise of prosecutorial discretion and the... and whose power is that?

It is the executive branch's authority to determine what is, in fact, the most important kinds of prosecutions to bring.

But because of the First Amendment overlay that does, in fact, arise in this context, it does seem to me that an argument could very well be mounted... and it might be accepted... that the Government is engaged in selective enforcement, selective prosecution of cases, and we would take that through the Waite analysis.

I thank the Court.

Chief Justice Rehnquist: Thank you, General Starr.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Barnes v. Glen Theatre Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:38 +0000

Case:

Barnes v. Glen Theatre Inc.

Media File:

90-26_19910108-argument.mp3

Related Transcript:

1990_90_26_argument.xml

Transcript:

Argument of Wayne E. Uhl

Chief Justice Rehnquist: We'll hear argument next in No. 90-26, Michael Barnes v. Glen Theatre, Inc.--

Mr. Uhl.

Mr. Uhl: Thank you, Mr. Chief Justice, and may it please the Court:

In Indiana under Indiana code, Section 35-45-4-1, a person cannot leave his home naked and walk down the street.

He cannot give a political speech in a park without--

Justice White: Without being in trouble.

Mr. Uhl: --That's correct.

[Laughter]

He would get in trouble, Your Honor, if he walked into a public place such as a bar or a bookstore without his clothes on.

Once inside the bar, he could not walk naked up and down the aisles in the bar, nor could he sit down at a table without his clothes on, nor could he stand up on the bar or on a stage at the front of that public establishment without his clothes on.

Justice Scalia: He can evidently sing in an opera without his clothes one.

Mr. Uhl: Well, our point, Your Honor, is that the plaintiffs say that if he starts dancing when he gets up on that stage or up on that bar, then he can do anything... or anything that can be defined as dancing... then he's privileged under the First Amendment to appear naked, notwithstanding Indiana's public indecency statute.

Justice Scalia: What about seeing an opera?

Am I correct in my understanding of what Indiana law is?

That there is an exception to the nudity law somehow for artistic performances, is that right?

Mr. Uhl: The Indiana Supreme Court, in order to avoid an overbreadth challenge, has held that the statute does not affect activity which cannot be restricted by the First Amendment.

And the term that the court used in that case was "a larger form of expression".

So--

Justice Scalia: Which includes opera but not go-go dancing?

Mr. Uhl: --That's correct, Your Honor.

Unknown Speaker: Is there... where does that come from?

Justice Scalia: Your Honor, the court looked at cases such as Southeastern Promotions where this Court in implied that the production of Hair, for example, needed to include nudity.

And I think, drawing from that line of cases, presumed that the First Amendment--

Justice Scalia: It is the good-taste clause of the Constitution?

How does one draw that line between Salome and the Kitty Cat Lounge?

I don't--

Mr. Uhl: --The line is drawn the same way the line is drawn anytime conduct is involved, and that is whether or not the conduct communicates.

If the conduct communicates, then the conduct is speech.

If the conduct does not communicate, then the conduct is not speech.

Justice Kennedy: --Communicates what?

An idea?

Mr. Uhl: Communicates a particularized message or an idea.

Justice Kennedy: What about a particularized message and an idea of sensuality?

Mr. Uhl: That could be communicated.

However, the plaintiffs in this case did not establish... did not carry their burden of proving that that was the particularized message that they were sending by their dancing.

Justice Kennedy: Because they were not good enough dancers?

Mr. Uhl: No, it didn't have anything to do with the quality of the dance, Your Honor.

It had to do with--

Unknown Speaker: Well, could a dance communicate that?

Mr. Uhl: --Yes, a dance could communicate that.

Justice Kennedy: But this one didn't?

Mr. Uhl: These dances did not.

Justice Kennedy: Because they were not good enough dancers?

Mr. Uhl: No, Your Honor, it wasn't the quality of the dancing.

Go-go dancing can be good or bad, but it either instance it's speech.

Chief Justice Rehnquist: Well, Mr. Uhl, are you conceding that if conduct does communicate, then it can't be regulated at all under the First Amendment?

Mr. Uhl: No, Your Honor, our second issue in the case is that even if this dance is speech, then it can be restricted under the First Amendment.

And basically we've drawn on two lines of cases for that argument.

First, we've argued that our statute is a general criminal prohibition on public nudity that applies... that is no directed at speech and is content neutral in the sense that it is irrelevant what message might be sent by the conduct.

Under the case... under last term's case of Employment Division v. Smith which involved drug use, this Court held that a general criminal prohibition such as that would be valid even as applied to native Americans who claimed that their use of peyote was a religious practice protected by the First Amendment.

Justice O'Connor: But in light of the Baysinger and other decisions of your State's courts it does seem that what's left is not content neutral in all respects.

Mr. Uhl: Your Honor, I think the respondents have over construed Baysinger when they say that Baysinger created some kind of a speech exception.

Justice O'Connor: Well, but you said today that Indiana has held that the statute doesn't apply to certain performances.

Mr. Uhl: Indiana's held that only if that is required by the First Amendment.

Justice O'Connor: Well, that seems to be the position that the court has taken, and in light of that, how can you take the position here that the statute is content neutral?

Mr. Uhl: The Indiana Supreme Court did not consider the possibility that this statute might be a reasonable restriction on speech.

That question was not raised in the case... in the Indiana Supreme Court case.

So basically Baysinger is nothing more than a tautology.

Baysinger simply said that the public nudity statute can prohibit public nudity to the extent allowed by the First Amendment.

Our argument here is that under this Court's regulability cases, Employment Division v. Smith or the other line of cases, the reasonable time, place, and manner cases, that this activity can be restricted consistent with the First Amendment.

And therefore, it does not... the Baysinger decision does not stop this Court from holding that that is true under the First Amendment.

Justice White: Suppose the dancers complied with the statute, and... would you say that then the dancing is protected by the First Amendment?

Mr. Uhl: Well, our second argument assumes that the dancing is speech.

Justice White: No, no.

If they complied with the statute and still danced, they would not be dancing nude.

In that event, would the dancing be protected?

I would suppose you would say no.

Mr. Uhl: The protection of the dance doesn't depend on whether or not the clothing is worn for the purposes of our second argument.

Justice White: How about the first argument?

Mr. Uhl: Well, the clothing doesn't change the nature of the dance either.

That's correct.

The clothing doesn't make the dance speech and doesn't protect it as speech.

The dancing is either speech or not speech.

Justice Kennedy: Well, Justice White's question puts this point.

Could you prohibit this performance... you don't want to call it a dance... if the women were clothed?

Mr. Uhl: Not on the basis of--

Justice White: Of the first... I thought... the dancing wouldn't... clothed or unclothed--

Mr. Uhl: --Oh.

Justice White: --it wouldn't... the message would not change or the lack of it wouldn't change.

Mr. Uhl: No, our position is that the dancers would still have to show that if they took off their clothes that there's an extra message.

Justice Kennedy: No, that's no... suppose the dancers were clothed and suppose the State of Indiana or a police official attempted to prohibit that performance, a clothed performance, would the First Amendment protect the performer?

Mr. Uhl: No, not these performances in this case.

Justice Stevens: Then you're saying it would be permissible to pass a statute prohibiting tap dancing?

Mr. Uhl: Unless tap dancing were shown to be speech under the First Amendment, that's correct.

Justice Stevens: Well, but under your view it doesn't convey any particular message so you could prohibit it.

Mr. Uhl: That's correct, Your Honor.

Justice White: Well, you might not be able to prohibit under some other provision in the Constitution.

You just say it wouldn't be protected by the First Amendment.

Mr. Uhl: That's correct.

Obviously due process and equal protection concerns would be--

Justice O'Connor: Could the State prohibit rock music?

Mr. Uhl: --Your Honor, this Court found in the Ward case that rock music is speech under the First Amendment, so no, it could not.

But--

Justice O'Connor: Well, how is it that music is protected but dance is not?

Mr. Uhl: --Music is different--

Justice O'Connor: Could you explain that?

Mr. Uhl: --Music is different from dance in that the very nature of the medium is communicative.

But by the definition of dance that's been submitted by the respondents--

Justice O'Connor: Do you think some of the rock music played in the Ward case conveyed a message?

[Laughter]

Mr. Uhl: --An artistic message.

Justice O'Connor: An artistic message?

Mr. Uhl: An artistic message.

Yes, Your Honor.

Whereas not all dance conveys an artistic message.

Justice O'Connor: Well, I suggest not all music does either.

Mr. Uhl: That may be a case-by-case determination and this Court hasn't addressed that except in Ward to say that music in general is communicative and therefore is speech under the First Amendment.

Justice O'Connor: Well, dance in general might be communicative under that test, might it not?

Mr. Uhl: We would resist that, Your Honor, because dance can be so broadly defined as to include perhaps what I'm doing here today.

Dance can be any--

Justice White: Song and dance.

[Laughter]

Mr. Uhl: --Well, not that kind of song and dance.

[Laughter]

The respondents have suggested that a production in which nudes simply stand nude on a stage would be dance or that if someone were to simply... rhythm is not important to the definition of a dance.

Improvisation can be dance according to the respondents.

Any movement can be defined as dance.

And if this Court were to hold that all dance as it's defined there is speech, then the First Amendment would be trivialized to include any kind of movement or motion that expresses some kind of emotion.

Justice Scalia: Why... what are you arguing about dance for?

Dance was not prohibited here, was it?

Mr. Uhl: That's correct.

Justice Scalia: These people could have danced to their heart's content so long as they had clothes on or--

Mr. Uhl: That's correct.

And our second argument assumes arguendo that the dance is speech and argues that even if it is speech that we can protect under the statute because that's correct.

The statute doesn't ban dancing.

It doesn't ban performances.

It simply requires that anytime a person in Indiana appears in public that vital areas of the body be covered.

And for that reason this is the type of general criminal prohibition that this Court... such as the one in Employment Division v. Smith... held can be applied consistent with the First Amendment, notwithstanding a claim that the conduct at issue is protected... is speech or religious practice under the First Amendment.

Justice Blackmun: --Mr. Uhl, I'm interested in one of your answers to Justice Kennedy.

Are we dealing with obscenity here?

Mr. Uhl: No, Your Honor.

There has never been a contention in this case that the dancing at issue is obscene.

Justice Blackmun: So the State stands by its concession that we are not dealing with obscenity?

Mr. Uhl: That's correct, Your Honor.

Justice Souter: If we were to find that an emotional communication as opposed to a particularized message were protectable, what would you then say to the argument on the other side that they simply cannot communicate the message in any other way except by nude dancing?

I think what they're saying in effect is that some kind of a medium-is-the-message argument.

Mr. Uhl: If the medium is the message, Your Honor, then it's our contention that the nudity is not an essential part of that particular medium.

The dance can be communicated just as effectively, or almost as effectively, with pasties and g-strings covering the vital parts of the body that are at issue under the statute.

And it's our contention that alternative means of communication are open to these plaintiffs and that the mere requirement of... that the certain parts of the body be covered is not essential to their communication.

Justice Souter: So you're saying they cannot define their activity by saying the medium and the message are identical and thereby evade the possibility of otherwise permissible First Amendment regulation?

Mr. Uhl: That's correct, Your Honor.

In one sense their claim that nudity is an inherent part of their dance is no different than someone who might be putting on a play and decide that the use of marijuana during the play is also protected because it's connected with this protected play.

I think the court would immediately reject that argument out of hand, that that kind of criminal conduct, even though it's in the context of a protected production, can be criminalized by a State.

Justice White: I suppose... you say that even if dancing nude might communicate a different message than complying with the statute, these particular dancers have never claimed or indicated that they were... had any such message to deliver I gather.

Mr. Uhl: That's correct.

One of the respondents in this case submitted an affidavit where she said that she intended to communicate and to entertain and then she stopped and didn't tell us what she intended to communicate or entertain.

And that respondent, respondent Sutro, also failed to submit any other evidence of the type of dancing that she wanted to perform.

She did not submit a videotape, as did some of the respondents, nor did she even just submit to the court a verbal or written description of the dancing that she wished to perform.

Justice Stevens: What... would the case really be different if the dancer had a sign up at... on the stage that said she was a member of a nudist colony and she believed it healthy for people to attend nudist colonies and some message with it and then said, I'll illustrate to you how nice it is to be nude or something like that?

Would that be a different case?

Mr. Uhl: No, Your Honor, that would be no different than the case in Florida of the sunbathers who claimed that they wanted to bathe out on the beach, and show--

Justice Stevens: But it's different in the sense that you have a particularized message, and the dance is suppose to dramatize this message that she's also got a sign stating it.

Mr. Uhl: --In terms of the particularized message, then it would be a different case.

You could very well--

Justice Stevens: Then you'd say that one would be protected, but as long as they don't put such signs up, it's unprotected.

Mr. Uhl: --It would be speech.

And whether it would be protected then is the question of whether the State can regulate it, and it would be our position that under this statute we can still require her to wear the minimal covering because... regardless of the fact that it's speech.

Justice Stevens: And why is that?

Mr. Uhl: Well, it's either because of the application of Employment Division v. Smith, because this is a general criminal statute, or it's by application of the reasonable time, place, and manner test that this Court has applied in other contexts.

Justice Stevens: Reasonable time, place, and manner being there's no reasonable time, place, or manner--

[Laughter]

--for this kind of dance.

Mr. Uhl: Your Honor, reasonable place in that the statute is limited to a public place.

Justice Stevens: Okay.

Mr. Uhl: And the Indiana courts have very carefully defined public place.

Reasonable manner in that this is a restriction simply on the manner of appearing, that is that there are certain parts of the body that need to be covered, and it's our position that that is sufficient narrowly tailored, just as the clothing on the dancers is narrowly tailored, to accomplish the State's interests in prohibiting public nudity.

Chief Justice Rehnquist: How about the O'Brien test?

Mr. Uhl: Well, this Court has found... in the Clark case the Court indicated that the O'Brien test is really no different than the reasonable time, place, and manner test.

We set them out separately in our brief, but basically it's the same test.

You look for a substantial government interest that is forwarded by the statute in a manner that leaves open alternative means of communication.

And I may not have articulated O'Brien precisely, but I think the Court indicated in Clark that they're basically the same test.

Justice O'Connor: Mr. Uhl, if there were a videotape of these performances, could the State ban outright the sale of the tape?

Mr. Uhl: No, Your Honor, because the videotape would not be live conduct, and the statute only goes to... and our First Amendment argument only applies to live conduct as opposed to depictions.

Justice O'Connor: Yes, I'm asking you whether a statute could withstand a First Amendment test if it tried to ban sale of the videotape of the performance.

Mr. Uhl: No, Your Honor, not unless the videotape were obscene.

Justice O'Connor: And why is that?

Why can you ban the real thing but not the videotape of it?

Mr. Uhl: This Court has always made a distinction between depictions of conduct and live conduct itself.

And I think that's because live conduct is something that is traditionally subject to State regulation and is something that more vividly presents the concerns that are at interest when the State try... legislates in this particular area.

The Court has always said that live conduct is to be treated differently.

Justice Kennedy: Are you saying that this is sexually explicit conduct and that that's a category that we can use to sustain the law?

Mr. Uhl: We're not arguing that it's a special category that therefore is excluded from the First Amendment.

However, I believe there is some support for the proposition that because this is sexually explicit speech that it may deserve a lesser level in a balancing test.

Justice Kennedy: And you have the LaRue case?

Anything else?

Mr. Uhl: Not off the top of my head, Your Honor.

There's another aspect of it that is also... falls into that kind of category and that is the commercial nature of the speech.

We've never argued here that because this is commercial-type speech that it therefore falls into the category of advertising.

But that doesn't change the fact that at least one of the respondents said that the only reason that she dances nude is in order to make more money.

And we think that in balancing the impact of the statute against the rights of these women to engage in this kind of conduct the court can take into account the fact that this is a speech that's done largely for a commercial purpose.

Justice Scalia: That's why Dickens wrote his books, too.

Mr. Uhl: Well, Your Honor, it's different.

Dickens wrote his book largely because he needed income, not only because he needed income, and there's a distinction there to be made.

Justice Scalia: You're sure about that?

[Laughter]

Mr. Uhl: I'm sure what Darlene Miller's intent was, Your Honor, and that was to make money.

Justice Stevens: Yes, but your supreme court distinguishes between the opera singer and this dancer and I suppose the opera singer wants to make money, too.

Mr. Uhl: That's true, although again the opera singer is in the position where that's not the only thing that she wants to do, but that the money is an important part of it.

So we can't distinguish this just on the fact that she's making money.

Justice Stevens: And are all the... how many performers are involved in this litigation?

Mr. Uhl: In this litigation I think there are three dancers who are actually a part--

Justice Stevens: And did all three of them say that was their only motive?

Mr. Uhl: --No, Your Honor, only Darlene Miller did.

We can infer, though, that Gayle Sutro who danced at the Chippewa Book Store had a commercial motive as well because there is evidence in the record that the reason she was dancing at the Chippewa Book Store was to promote a movie that was playing at the drive-in next door.

Justice Scalia: Yeah, but she may not have made the movie only to make money.

Mr. Uhl: That's true, Your Honor, and we didn't ban the movie.

We were only banning her coming in and promoting it nude.

Justice Kennedy: Are you really confident that we could make the distinction between dancing which is part of a greater form of artistic expression as opposed to dancing that is not artistic expression?

Who's to do this?

The legislature to do this?

Are we to do it, or both... kind of a joint venture?

Mr. Uhl: Your Honor, as in the case of obscenity where one of the issues is the artistic value of the work, trial judges and trial juries make the distinction under... in criminal prosecutions under this statute, just as in an obscenity case--

Justice Kennedy: But we have no settled jurisprudence.

We would be really striking out in a very new direction, would we not?

Mr. Uhl: --Well, Your Honor, there's... ever since Miller v. California, juries have been determining whether works that are charged to be obscene have artistic value.

So we believe that it's simply application of the same kind of test in this context.

I'd like to go through the reasonable time, place, and manner test just to make sure that all three elements of that have been presented here.

The... as I've said, this is a place restriction because it is limited to public places.

It is a manner restriction because it's a restriction on the manner of dancing, that is, nude or not nude.

In that way it's just like the rock music situation in the Ward case, where this Court held that the volume restrictions on that rock music were a manner restriction on it.

I have no doubt that the rock musicians would have said that the full impact of their music was lessened by the restrictions on the volume there, and the dancers here may very well say that the full impact of their dancing is lessened by the requirement of clothes, but that does not change the fact that this is a manner restriction.

The three elements of a reasonable time, place, and manner restriction are met here.

First, the statute is context neutral, that is, it is justified without reference to the content of the speech.

In fact, this statute applies regardless of whether there is speech involved, whether this is simply someone walking through the park or whether it's someone who is giving a political speech.

The second... the noncontent concerns here are very important.

The most important is the traditional requirement in our society that certain body parts be covered in public.

This goes back to the common law offense of public indecency and can be traced even further back in Western culture.

Justice Scalia: Excuse me, I should have jumped in earlier I guess.

I wish we could clarify exactly what the supreme court has said about nude dancing in the course of the theatrical production, because that does bear upon whether it's content neutral.

I mean, as I understand the law in Indiana, it isn't content neutral.

You can dance nude but only in certain... I don't know... high-toned kinds of productions.

Is that the test?

Mr. Uhl: As of now... all the supreme court has done in Indiana is said that the statute isn't overbroad and the reason the statute is not overbroad is because we assume... and I'm reading this in... we assume that the First Amendment puts limits on our ability to ban nudity.

And the way that assumption was stated in the Baysinger was we assumed that nudity must be tolerated in certain larger forms of expression.

Justice Scalia: Larger?

Mr. Uhl: Larger forms of expression.

Justice Kennedy: Some larger forms of expression meriting protection.

Mr. Uhl: Meriting protection.

Justice Souter: Would you defining the larger form of expression by particularized message?

Mr. Uhl: Yes, Your Honor.

Justice Souter: So if the particularized message distinction is not upheld, then you have no way of drawing the line between the higher and lower form.

Mr. Uhl: That very well may be true.

But if the Court holds that, then we still believe that this is a reasonable regulation upon the dancing.

Did I adequately explain the Baysinger decision, Your Honor, because I think that is important?

Justice Scalia: I gather you're saying that they don't really mean it.

That they're just saying, we're imposing that limitation because we think the Constitution requires that limitation and if the Constitution doesn't, then there isn't even that limitation on the statute.

Is that your interpretation of the case?

Mr. Uhl: That's correct, Your Honor.

The second element of the reasonable time, place, and manner restriction is whether the statute is sufficiently narrowly tailored.

The statute's definition of nudity is extremely narrow and carefully defined.

Furthermore, the Indiana courts have carefully defined the term public place.

For example, a situation where a single viewer goes into a booth and views a single dancer through a glass plate and closes the door behind him to do so, the Indiana Supreme... the Indiana courts have said that that is not a public place under the statute.

However, what we have in this case in the Chippewa Book Store is a ring of booths around a stage where a multitude of customers can watch the same dancers at the same time.

Justice Stevens: What's the State interest in that distinction?

If you have one customer, it's okay.

If you have ten, it's bad.

Mr. Uhl: Well, the State interest, Your Honor, is that the more this becomes an audience participation kind of a situation that the State's interest in regulating that kind of conduct increases.

Chief Justice Rehnquist: Why do they call this place a bookstore?

[Laughter]

Mr. Uhl: As I understand it, Your Honor, it is also an adult bookstore, that is, it sells pornographic materials in addition to offering this kind of booth entertainment.

Justice Souter: Mr. Uhl, I'm sorry to get out of sequence here, but I'd like to go back to a Baysinger point, lest I forget it.

And it's a question about the significance of Baysinger in relation to what this Court may hold.

If we do not sustain a distinction based on particularized message, so that we were to hold that the communication of some emotional content were sufficient to qualify for First Amendment scrutiny, would the effect of Baysinger be that this conduct would be allowed and that would be the end of the case?

Mr. Uhl: No, Your Honor, I think Baysinger would then very much be cut back, because if this Court were also to hold, as we've urged in our second argument, that we can still restrict this activity consistent with the First Amendment, then we can still do that.

Baysinger--

Justice Souter: So Baysinger would still be a tautology as you put it.

Mr. Uhl: --That's correct.

That's correct.

Justice Souter: Okay.

Mr. Uhl: The plaintiffs... back to narrowly tailored.

The plaintiffs have argued that we're required to carve out an exception to this statute based on the presence of consenting adults.

However, we've argued that that's not required.

First of all, that would be basically imposing a least-restrictive means test, which this Court has never required.

Second, consent is irrelevant, as in other public offenses such as prostitution or drug use.

Third, the concerns that the State is after in this particular kind of statute are even more prevalent in this type of business than in other type of businesses.

Finally, the statute does leave open alternative forms of expression, as I've argued previously.

The dancers have never asserted credibly that they... that their message is substantially changed or inhibited by the requirement that they wear pasties and g-strings.

Therefore, we would... we are asking that the Seventh Circuit decision in this case invalidating the statute as applied be reversed.

I would like to reserve the balance of my time for rebuttal, Mr. Chief Justice.

Argument of Bruce J. Ennis, Jr.

Chief Justice Rehnquist: Very well, Mr. Uhl.

Mr. Ennis, we'll hear from you.

Mr. Ennis: Mr. Chief Justice, and may it please the Court:

Nude dancing is sufficiently expressive to at least trigger First Amendment analysis for two independent reasons.

First, nude dancing is expressive, because performance dance is inherently expressive of emotions and ideas, and second, because nude dancing communicates a particularized message of sensuality and eroticism.

First, performance dance, like music, is one of the oldest forms of human communication and is inherently expressive of emotions and ideas.

In Ward, this Court found that music is expressive without bothering to determine whether the music at issue did or did not communicate a particularized message.

A particularized message test applies only to conduct that is not ordinarily expressive, such as flag burning.

Even that kind of conduct can be found expressive if in context it communicates a particularized message.

But the Court has never used that test to determine whether marching or picketing or other traditionally considered expressive forms of activity are expressive or not.

The Court's decisions made clear that if expressive... if conduct is otherwise expressive and protected by the First Amendment, the fact that the conduct involves nudity does not shed that protection.

For example, in--

Chief Justice Rehnquist: Mr. Ennis, would you concede that a State ban on nudity on public thoroughfares and sidewalks is constitutional?

Mr. Ennis: --Your Honor, I think it would trigger First Amendment analysis if it's intended to be expressive, but the State probably could regulate it because of the captive audience--

Chief Justice Rehnquist: Well, supposing they regulate it by prohibiting it?

Mr. Ennis: --They could probably prohibit it because of the captive audience problem or exposure to children, just as in Sable the Court said that although indecent speech is constitutionally protected, it can nevertheless be... regulated.

Chief Justice Rehnquist: So the vice in this statute as applied is that it takes it off the sidewalks and thoroughfares and regulates activity in a private--

Mr. Ennis: Well, it is effectively a private place.

It's called a public place, but it's a private building on private property that is enclosed.

Chief Justice Rehnquist: --What if your client had decided to perform a dance... this same dance... in a public park in Indiana?

Mr. Ennis: I think the State could prohibit that, because of the concerns as in Sable of a captive audience being forced to see a message they do not want to see or the possibility of children being present.

But what Sable makes clear is the State, in order to serve those interests, cannot categorically ban access to such speech by consenting adults, and that's all that is at issue in this case.

Justice White: Well, were children barred from all these places?

Mr. Ennis: Absolutely.

There's no dispute.

That's stipulated that this was only consenting adults.

ID's are checked at the door.

Justice Kennedy: You began by using a term... was it dance performance?

Mr. Ennis: Performance dance.

By that I mean dance which is intended as a performance in front of an audience, to distinguish that from recreational dance or dancing at home in your own room.

Justice Kennedy: Suppose someone wanted to increase business at the car wash or in a bar and they hired a woman and said, now, you sit in this glass case... and this is an adults only carwash--

[Laughter]

--you sit in this glass case and attract the customers.

Is that permitted?

Mr. Ennis: Your Honor, I think it would... if it was intended as expressive activity, if it was performance dance.

Justice Kennedy: No, it's just what I said.

The employer says this is the job, you is up there.

Mr. Ennis: I think that that would trigger First Amendment analysis.

Whether the State could ban it or not would depend on the State's justifications.

Justice Kennedy: Well, suppose he said, I've heard the arguments in the Supreme Court and you have to dance.

And she said, I can't dance.

And he said, just wander around when the music starts to play.

[Laughter]

Mr. Ennis: Well, Your Honor--

Justice Kennedy: I mean, that's the point, isn't it?

It's a question of what is performance dance.

What is it?

Mr. Ennis: --What is performance dance is a question in this case.

The main way that that is answered, if you'll look at the material cited in the briefs, Encyclopedia Britannica and others, is where there is an intention to perform in front of an audience through dancing.

That... the district court found as a fact, and that was not disputed here, that all of these respondents did intend to dance as communication and as expression.

That's a factual finding that's not at issue.

Justice Stevens: Well, even objectively I suppose you would say that any fool would say that there was a performance dance here, because there was dancing in front of people.

Mr. Ennis: Yes, that's correct, Your Honor.

Justice Stevens: Whether they intended to or not.

Mr. Ennis: Well, I think that's probably correct, Your Honor, but they did intend to.

Gayle Sutro's affidavit, for example, states that she is actually a professional dancer who has gone to a recognized dance academy, has a degree in both ballet and erotic dance.

Justice Scalia: Mr. Ennis, nobody is stopping her from dancing.

Suppose you win this point: dancing is expression.

They have not stopped her from dancing.

They have stopped her from going about nude, whether dancing or doing anything else, just as I suppose they have murder laws in Indiana which prevent people from killing people, whether in the course of dancing or not.

Now, would one have to analyze the Indiana murder law as a... as valid or invalid under First Amendment if the murder happens to be performed in the course of a public performance dance?

Would we have to consider that a First Amendment case?

Mr. Ennis: Well, let me turn directly to that, Justice Scalia.

That depends on the State's justifications, assuming this is expressive activity.

This statute cannot--

Justice Scalia: So your answer to my last question is yes, it does turn on the State's justifications.

Mr. Ennis: --It does--

Justice Scalia: That's a First Amendment case, if you kill somebody in the course of dancing.

Mr. Ennis: --If someone uses peyote or commits a murder for the purpose of committing... communicating or expressive activity, that would trigger First Amendment analysis.

But the State could nevertheless prohibit it.

And here's why, Your Honor.

This statute is not content neutral for two independent reasons.

First, the application of this statute to nude dancing is related to expression within the meaning O'Brien, and second, the statute as construed in Baysinger exempts other expressive activity precisely because of its artistic or expressive content or value and thus under Mosley and Raglan cannot be deemed a content-based statute.

First.

Chief Justice Rehnquist: The statute here, Mr. Ennis, isn't addressed to dancing at all.

It's addressed to public nudity.

Mr. Ennis: The statute in O'Brien was not... the statute in many of the cases, like the flag-burning cases, was not addressed to expressive activity on its face.

It was expressed only to the conduct of burning or mutilating the flag.

Justice Scalia: But the equivalent here would be addressing it to dancing.

In the flag-burning case, the equivalent to what happened here would be a statute that banned burning anything in the street, a flag or anything else.

And then people would have come in and said, well, you know, it's a ban on expression, because what I wanted to burn was a flag, and I think we would have said in the flag case... in fact I think we did say in dictum that if it was that kind of a statute it would be a totally different question.

And it's that kind of a statute you have here.

Mr. Ennis: Justice Scalia--

Justice Scalia: It's not nude dancing.

It's not dancing.

It's nudity, period.

Mr. Ennis: --Justice Scalia, the Court's opinion in O'Brien and all the flag-burning cases uses the same analysis.

It says the State must justify the application of an otherwise content-neutral statute to expressive activity for reasons unrelated to expression.

In this case, you can look at the State's briefs.

The State has acknowledged its fear that nude dancing is, quote,

"likely to inspire patriots to solicit sex from performers or contemplate rape or adultery. "

The State has admitted it has concerns about the effect of nude dancing on attitudes toward women and has argued that it should be free to ban nude dancing because it, quote,

"encourages activities which break down family structure and advocates adultery, licentiousness, prostitution, and crime. "

As Justice... Justice O'Connor's opinion in the Boos v. Barry makes clear these justifications are related to expression because they focus on the direct impact of speech on its audience and they are concerned with listeners' reactions.

Therefore, this cannot be considered a content-neutral statute, and that's why it is distinguished from the--

Chief Justice Rehnquist: Well, what if the dancer wanted to do kind of an Annie Oakley dance in the course of which she fired off a revolver at various targets around the room--

Mr. Ennis: --Yes.

Chief Justice Rehnquist: --and the State says that's a violation of our law.

You can't fire a revolver without a permit.

You can't do it in this kind of a place.

And the dancer says, well, I can't really get across the Annie Oakley message without firing off the gun.

Mr. Ennis: But, Your Honor--

Chief Justice Rehnquist: But the State then says, well, we have real fears that if you do it in a crowded adult bookstore you might hurt somebody.

That's certainly is talking about the application right there to the bookstore.

Mr. Ennis: --But it does not depend upon the listeners' reactions to the speech.

That's like setting a fire, perhaps burning a flag in an enclosed public building might be bannable because of the State's independent interest in fire safety.

It is unrelated to expression.

The State, as in O'Brien, has an interest in applying that statute to this expressive activity that is completely unrelated to the expressive activity.

Chief Justice Rehnquist: Well, why isn't the State's interest in banning public nudity unrelated to expressive activity?

It doesn't care whether expression takes place or not.

Mr. Ennis: The State has told us that it does care.

Chief Justice Rehnquist: Well--

Mr. Ennis: The State has told what its reasons--

Chief Justice Rehnquist: --Well, let's assume that the State has said hypothetically, we don't care what are the audiences' reactions.

We just don't think public nudity anywhere is a good idea.

Mr. Ennis: --Well, Your Honor, that would be a different case.

That is--

Chief Justice Rehnquist: So the State didn't advance quite the right justification here?

Mr. Ennis: --No.

Chief Justice Rehnquist: Is that your position?

Mr. Ennis: No, that's not my position, Justice Rehnquist.

There are two reasons why this is a content-based statute.

The first is the State did advance reasons, and the reasons it advances are related to expression.

The second though, is the Baysinger construction point.

In Baysinger the Indiana Supreme Court construed this statute so that it would permit some nude dancing in public and prohibit other nude dancing in public based solely on the State's subjective determination of whether that nude dancing had sufficient expressive value or artistic content.

Justice Kennedy: But before you get there, and this is an important point, but just on the last part about being related to expression, what about a noise statute?

Mr. Ennis: I think, Your Honor--

Justice Kennedy: Is that related to expression?

Mr. Ennis: --I think the noise point, for example, in your opinion for the Court in Ward, the Court found that controlling volume there was unrelated to the expression because it applied... no matter who was expressing the message and regardless of the State's agreement or disagreement with the views or the listeners' reaction to that.

Justice Kennedy: Well, why couldn't you say the same thing about nudity?

Mr. Ennis: You can't say that here certainly after the Baysinger construction, because the court in Baysinger makes clear that some nude dancing is permitted and others is prohibited based on the State's evaluation of its expressive value or artistic merit.

That's exactly what the State has argued over and over again before this Court.

Justice White: But there's no difference between that kind of dancing and the dancing in this case based on the effect on the audience, is there?

Mr. Ennis: I'm sorry, Justice White, I did not understand that question.

Justice White: Well, awhile ago you were talking about the effect on the audience.

Mr. Ennis: Yes.

Justice White: Do you think there's any difference between, say, opera and the dancing in this case, in terms of the effect on the audience?

Mr. Ennis: The State seems to feel there is.

The State seems to feel--

Justice White: I thought you were just talking about its idea of the artistic value rather than the effect on the audience.

Mr. Ennis: --The State seems to feel that if nude dancing is artistic, it has one effect on the audience and does not incite the audience to prostitution, rape, or adultery, but that if nude dancing is not artistic, it does have that effect on the audience.

Justice White: I suppose there are some things the State can prohibit even if... just because it has an effect on the audience.

What about shouting fire in a crowded room?

Mr. Ennis: Your Honor, I think that there are certainly some categorical exceptions to otherwise First Amendment protections that the State could argue here.

They have not.

That State's justifications here... they've said over and over again in their briefs, and in fact in the oral argument--

Justice White: Well, you just recited that the State thought that nude dancing would have some unsatisfactory on the audience and you say that's not permissible because that means it's really expressive.

Mr. Ennis: --It means that it is a content-based statute.

Justice White: Well, what about fire?

A fire in a theater?

Mr. Ennis: Fire in a theater has an effect regardless of whether the listeners agree or disagree with the message.

Justice White: Well, it depends exactly on what you say.

Mr. Ennis: Pardon me, Your Honor.

Justice White: It depends exactly on what you said.

You said, fire, rather than no fire.

Mr. Ennis: Your Honor, I think that there are... the distinction is that there what the State is concerned about is that the consenting adults in the audience will agree with this message, will follow what they take the message to be and will go out and have bad attitudes about women or commit prostitution, rape, or adultery.

It depends upon the State... the listeners' reactions of being persuaded by the message that the State wants to suppress.

That is not true in the shouting-fire-in-the-theater context.

It doesn't matter whether the people in the theater think there's really a fire or not.

There's a stampede and people get hurt.

That's a very different case.

Now, I think that Mosley and Raglan, which were the type of cases... the statutes discussed earlier make very clear that if a statute on its face or as construed exempts some expressive activity because of its content, then that statute must be deemed a content-based statute.

Justice Scalia: Mr. Ennis, what language... I've been looking at Baysinger... and I... it really does seem to me that all the Indiana court is saying is responding to an overbreadth argument.

The argument was that this statute would cover such things as the play, Hair, which can't constitutionally be covered and the Indiana Supreme Court just seemed to say, well, if it can't constitutionally be covered, it's not covered by the statute.

And you read that as a discrimination by the State on the basis of subject matter?

I... unless there's more explicit language in that opinion that I don't see.

That's all that I read into it.

Mr. Ennis: Your Honor, the opinion has the language you discussed and no more.

The way the State has described Baysinger in the Seventh Circuit and also here is that what Baysinger did was to say that nude dancing that has artistic content is--

Justice Scalia: Oh, well.

Mr. Ennis: --not within the statute and nude dancing without artistic content is.

Justice Scalia: Well, they shouldn't have described it that way.

Chief Justice Rehnquist: Are we to accept--

Mr. Ennis: No, they should not, but that is the State's justification for the statute.

Justice Scalia: --But we are dealing with an Indiana Supreme Court opinion, and I suppose the Indiana Supreme Court can speak for itself and it's not governed by what the attorney general recharacterizes it as.

Mr. Ennis: Well, certainly for purposes of this case the attorney general has represented what the State's interests are, whether accurately or inaccurately.

Those are the State's interests for purposes of this case.

And they... if you look at pages 10, 24 through 25 of the State's brief, they say over and over again that what Baysinger means is that if the dancing is artistic it's not covered by the statute.

If it's not artistic, it is prohibited by the statute.

In its oral argument in the Seventh Circuit, the State repeated this point over and over again.

Now, that brings me to another point, and that is we've been talking about whether there are justifications for this statute or not.

It is our position that the State has waived any right to attempt to justify application of this statute to respondents' dancing if this Court determines that that dancing is sufficiently expressive to trigger First Amendment analysis.

All through the Seventh Circuit, in 5 years of litigation, two levels at the trial court and two levels in the supreme court, the State never once attempted to justify application of this statute on the ground that it's a neutral statute of general applicability or it's content neutral or Renton analysis... none of those justifications whatsoever.

In fact, in oral argument in the Seventh Circuit, Mr. Uhl stood up and said, we don't have to try to justify this statute and we're not going to, because our position if simply that this dancing doesn't even trigger First Amendment analysis.

Even in its cert. petition to this Court, the Court... this State does not squarely argue that this statute can be justified.

Justice White: So we could leave... if we agreed with you on your first argument, I suppose, we'd just leave those other issues open?

Mr. Ennis: I think that's correct, Your Honor.

I think that this Court could rule that the respondents' dancing is sufficiently expressive to trigger First Amendment analysis and then rule that, as Judge Posner concurring and Judge Easterbrook dissenting, indicated that the State has waived any justification for applying that... this statute to these respondents.

Chief Justice Rehnquist: Mr. Ennis, the second question presented in the petition for certiorari is if nude dancing is speech whether Indiana's general public indecent laws are unconstitutional as applied to such dancing.

That surely brings... raises the justification issues.

Mr. Ennis: Well--

Chief Justice Rehnquist: Does it or does it not do you think?

Mr. Ennis: --I think it's a close question, Your Honor, to be quite candid.

Chief Justice Rehnquist: Do you think--

Mr. Ennis: If you look at their brief--

Chief Justice Rehnquist: --Well, I'm going to look at the question.

Mr. Ennis: --The question seems... it's ambiguous in my mind.

It could be construed that way or could not.

My main point is that all the way through the Seventh Circuit, the State didn't attempt to make such a justification, and they don't in the content of their brief.

Chief Justice Rehnquist: Did you raise that point in your brief in opposition to certiorari?

Mr. Ennis: No, the reason it was not raised in opposition is that it was not our understanding that the State had raised that point, since the text of their brief does not argue... Renton does not argue.

Clark--

Chief Justice Rehnquist: Well, you didn't have the text of the brief before you at the time you filed the brief--

Mr. Ennis: --Excuse me, I mean the text of the cert. petition.

Excuse me, Your Honor.

But let me say this though that even if the State is deemed to have raised that issue for the first time in its question presented in the cert. petition, there is no dispute that the State never attempted to justify this statute below.

It is the State's burden to justify application of a statute to expressive activity.

Chief Justice Rehnquist: --That might have been a consideration to be brought before us in considering the petition for certiorari, but you know our rule and in our Oklahoma City against Tuttle, anything that's nonjurisdictional that isn't brought up in the brief in opposition is waived by you.

Mr. Ennis: I know the rule, Your Honor, Rule 15 of this Court says that the Court has discretion to deem it waived if it is not raised in the brief in opposition to the petition.

And Court... of course the Court would have discretion to do that.

It would also have discretion in the circumstances of this case to say the issue was too important to be decided on such a sketchy record as we have here.

Chief Justice Rehnquist: Well, you don't think the opinions of the court of appeals are sketchy, do you?

Mr. Ennis: No, I don't think the opinions of the court of appeals are sketchy, but we didn't know until the State's main brief in this case what the State interests are to justify regulation of respondents' nude dancing.

They've posited now their interests.

They are content-based interests, because they depend upon the impact of the speech on the audience.

Let me turn for a minute to a point that the State did not raise in its oral argument but did raise in its main brief here: their argument that this statute can really be justified as a Renton-type statute, aimed only at secondary effects.

I think that that argument is totally inapplicable here for two reasons.

First, the ordinance in Renton by its terms focused only on secondary effects of certain specified businesses and did not prohibit or criminalize any expressive activity whatsoever.

This statute, by its terms, does not even mention secondary effects, has nothing to do with businesses of any type, and does criminalize and prohibit expressive activity.

Second, controlling secondary effects was the actual purpose in Renton.

Here, as the State candidly acknowledges in its brief, it is only a quote, "possible hypothetical purpose".

In Renton, it was clear that the Government was actually concerned with secondary effects and had reviewed studies and extensive evidence about that problem.

Here the State does not claim that the legislature was actually concerned about secondary effects or reviewed any evidence, and in fact, it is highly implausible that the secondary effects associated with adult businesses was a problem or a concern when this statute was first enacted in 1881.

Furthermore, although the constitutionality of this statute has been before the Indiana Supreme Court on numerous occasions, the Indiana Supreme Court has never even hinted that the statute aims at secondary effects.

Finally, the State's briefs here make crystal clear that the interests the State is advancing focus on the impact of this speech on its audience, on the listeners' reactions.

Accordingly, this is a primary effects case, not a secondary effects case.

One point I think is worth mentioning is that even if this decision is affirmed, the State of Indiana would be left with ample authority to regulate or perhaps prohibit nude dancing in a constitutional manner.

The State could certainly prohibit all obscene dancing, whether in public or in private.

It could... the State could certainly prohibit all obscene nude dancing.

That would not be affected by affirmance here.

That State could certainly under the Twenty-first Amendment prohibit dancing where alcohol is served, whether the dancers are nude or clothed.

The State could certainly regulate nude dancing under the Sable analysis in truly public places before unconsenting adults, captive audiences, or children.

And finally, if secondary effects were in fact a problem, the State under Renton could even zone, so long as it was a true zoning ordinance and was not a prohibition of a category of speech.

Justice Scalia: But subject to that time, place, and manner regulation, every community in Indiana would have to have some nude dancing, if an entrepreneur wanted to provide it.

You'd have to set aside a part of the community for nude dancing.

Mr. Ennis: Yes, Your Honor, I think that's--

Justice Scalia: The Constitution requires this.

Mr. Ennis: --I think that's what this... that's what is implicit in the Court's decisions in Miller and Sable.

Miller and Sable go to great, great careful links of attempting to decide what forms of sexual conduct the State can prohibit and what it cannot.

This is in effect and end run around Miller and Sable, because the State has conceded that this nude dancing is not obscene.

As Jenkins v. Georgia and other cases in this Court make clear, the mere fact of nudity does not equate with obscenity.

But here what the State is trying to do is without meeting the detailed requirements of the Miller test or the Sable test, nonetheless to categorically ban and eliminate an entire category of speech.

This is very different.

The artistic point here is very different from the artistic point in Miller.

Miller--

Justice Scalia: Miller was not action.

Miller was literature.

Mr. Ennis: --Right, but the Court's opinion in Miller I think has been understood to apply to live conduct and performance as well as to literature.

In Miller, the third prong of the test, of course, is an artistic prong test.

But that judgment is only reached once the court has already found that the speech is patently offensive and appeals to a prurient interest in sex and is, therefore, otherwise unprotected by the First Amendment.

The artistic merit test in Miller comes into save and give protection to speech that is otherwise unprotected.

Here, the State, as Justice Kennedy's question suggests, would be striking out on very new ground indeed.

Here the State would be saying that speech is only protected to begin with if it has artistic merit.

As this Court said in Hanaghan unanimously, what to one man is trash may to others have fleeting or even enduring values and it is not business of the State to determine which is trash and which is valuable.

The First Amendment leaves that judgment to the individual.

In fact as Justice Harlan wrote in Cohen v. California, one man's lyric is another's vulgarity.

And as Justice Harlan said, it is precisely because governments cannot make principal decisions between those kinds of communications, that the First Amendment leaves judgments in matters of taste to the individual.

Thank you very much.

Rebuttal of Wayne E. Uhl

Chief Justice Rehnquist: Thank you, Mr. Ennis.

Mr. Uhl, do you have rebuttal?

You have 4 minutes remaining.

Mr. Uhl: Thank you, Mr. Chief Justice, and may it please the Court:

We believe the second issue presented in the petition is properly before the Court for three reasons.

First, as Chief Justice Rehnquist pointed out, the issue was clearly raised in our petition for certiorari and there was no suggestion of waiver in the respondents' briefs in opposition.

Second, the issue was fully decided by all of the judges of the Seventh Circuit below.

Only one concurring judge, after addressing the merits, suggested that the issued may have been waived.

But he, too, joined the majority opinion in which the court clearly applied but found lacking our statute under the reasonable, time, place, and manner test.

And finally, we believe the issue is fairly included within the first issue that's presented, that at... resolution to the First Amendment issue in this case would be unsatisfactory if the Court simply stopped at a determination of whether this activity is speech without also determining whether or not it's regulable under this statute.

So we believe the question is fairly before the Court.

Justice Stevens: May I ask you on that, Judge Posner said that both the State's highest court and the law enforcement officials concurred in interpreting the statute, not as a blanket prohibition of public nudity.

Is that... do you still think it is not a blanket prohibition of public nudity or do you now take the position it is a blanket prohibition?

Mr. Uhl: For the purposes of our first argument--

Justice Stevens: No, you... are going to have to give me alternative argument answers?

Mr. Uhl: --Yes, Your Honor, we've made alternative arguments here.

For the purpose--

Justice Stevens: Have you ever before argued that it's a blanket prohibition of public nudity, including operas and the like?

Mr. Uhl: --No, Your Honor.

Justice Stevens: So, but you are making that argument now?

Mr. Uhl: Yes, Your Honor.

And we believe the statute stands under that argument.

Justice Stevens: And you believe that your opponent reasonably should have anticipated that argument when he filed his brief in opposition to your cert. petition?

Mr. Uhl: Yes, Your Honor, because the Seventh Circuit clearly went ahead and addressed that issue and then in our second issue in the cert. petition we clearly raised that issue: whether or not this statute is a valid... the public nudity statute... is a valid--

Justice Stevens: You don't... in your second question, you don't say a word about it being a blanket prohibition of public nudity.

Mr. Uhl: --I don't remember the exact frame--

Justice Stevens: It certainly doesn't suggest it to me.

Mr. Uhl: --but I believe it says that whether the statute is a valid regulation, and I believe the text of our cert petition clearly--

Justice Stevens: How should I interpret the statute as I face this case?

As a blanket prohibition or as a partial prohibition?

Mr. Uhl: --As a blanket prohibition, Your Honor.

As we suspected, the respondents have argued here today that basically any conduct anywhere that resembles dance is speech.

The burden is then on the State to justify our regulation of that conduct even if it's in a window in carwash, such as Justice Kennedy suggested, or out in the public park.

I don't think this Court has ever held that a State is required to come in with a common law crime that was in existence many, many years before the Constitution and the First Amendment were adopted and justify that statute as applied to live conduct.

There's been quite a bit of discussion during Mr. Ennis' argument of the State's interest in this case, and we'll confess a handicap here and that is that Indiana does not record legislative history.

Therefore, to some extent when the Attorney General's office or even the Indiana Supreme Court suggests what the State's interests are in upholding this statute, the legislative intent is simply inferred there.

There is no clear record of legislative intent in this statute.

But again we go back to the fact that this is a common law offense that involves traditional notions in our culture of what constitutes public decency in a public place.

And when it comes down to the fine tuning what we find is not that the defendant... that the respondents have any problem with the statute or its goals, but simply they disagree with our definition of what is a public place.

And that's a matter for the State courts and the legislature to determine and as long as that is a reasonable determination that is reasonably related to the goals of the statute, then the First Amendment does not prohibit the State of Indiana from enforcing this statute.

Therefore, again, we would ask that the Seventh Circuit's invalidating of the statute be reversed and that the district court be affirmed.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Uhl.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Osborne v. Ohio - Oral Argument

Fri, 09 Jan 2009 14:49:17 +0000

Case:

Osborne v. Ohio

Media File:

88-5986_19891205-argument.mp3

Related Transcript:

1989_88_5986_argument.xml

Transcript:

Argument of S. Adele Shank

Chief Justice Rehnquist: We'll hear argument now in No. 88-5986, Clyde Osborne v. Ohio.

Ms. Shank.

Mr. Shank: Mr. Chief Justice, and may it please Court:

The issues in the present case are three.

First, can an unconstitutionally, overbroad statute be construed on appeal and then retroactively applied to affirm the Appellant's conviction?

Second, may this state, consistent with First Amendment rights, prohibit the private, in-home possession of depictions of child nudity, where the nudity consists of either a lewd exhibition or involves a graphic focus on the genitals?

And third, has the Ohio Supreme Court successfully limited Ohio's child nudity statute to bring it within constitutional limitations?

Clyde Osborne was charged under an Ohio statute prohibiting the possession of pictures of nude children.

This statute was unconstitutionally overbroad on its face and as applied to Mr. Osborne.

The statute prohibited simple possession and mere viewing.

It failed to include an element of scienter, as required by this Court's decisions in Smith v. California and New York v. Ferber.

It failed to specify the age below which children could not be depicted, also as required by New York v. Ferber, and it prohibited depictions of mere nudity, contrary to this Court's decisions in Erznoznik v. Jacksonville and Ferber.

Mr. Osborne challenged the constitutionality of the statute prior to trial.

The court denied his motion, and the trial proceeded under the statute as written.

Only at the close of evidence did the trial court rule that the statute applied to depictions of those under the age of 18.

Mr. Osborne was convicted.

On appeal, the Tenth District Court of Appeals affirmed 18 as the age of minority, and construed nudity to mean a lewd exhibition of the genitals.

The Ohio Supreme Court redefined nudity on review to drop the requirement that genitalia by depicted; nudity now means, under that court's interpretation, either a lewd exhibition or, in the alternative, a depiction involving a graphic focus on the genitals.

The court added an element of scienter, recklessness, and again affirmed that 18 is the upper limit of the age of minority.

Mr. Osborne's conviction was affirmed under this new construction and he moved for rehearing on the ground that this retroactive conviction violated his right to due process.

His motion was denied.

Clyde Osborne stands today convicted under a statute wholly different from the one under which he was charged and tried.

And this is the basis of our first issue.

The statute in this case, as I previously noted, was unconstitutional on its face and due to its unconstitutionality was invalid.

A conviction obtained under such a statute is a nullity, and the conviction cannot be brought to life by a subsequent constitutionalizing construction of the statute.

This principle is well established in precedent from this Court.

In Lovell v. Griffin, Thornhill v. Alabama, and Shuttlesworth v. BIrmingham, this Court has held that an unconstitutional statute is in fact invalid on its face, that no one is required to comply with such a statute, and that a subsequent construction will not succeed in criminalizing preconstruction conduct.

This is, in fact, the essence of the overbreadth doctrine.

Unknown Speaker: How old was the child in question here?

Mr. Shank: There was hearsay testimony that the child was either 13 or 14.

However, no finding of fact on that issue was made, and the jury was instructed only to find that the child was under the age of 18, Your Honor.

Unknown Speaker: Any question that what Mr. Osborne... Mr. Osborne knew the age?

Mr. Shank: Your Honor, Mr. Osborne did testify that he had been told that the age of the child was 14, however, he had no actual or personal knowledge, and this was brought out in the course of the presentation of evidence at trial.

As I was saying, the essence of the overbreadth doctrine is that when a statute is unconstitutional on its face and one challenges the unconstitutionality of that statute, when the challenge has been... successful, the appellant cannot then be convicted under new and constitutionalizing construction of the statute.

Unknown Speaker: Well, correct me if I'm wrong, please, but those cases were not ones, were they, in which this Court or any other court held they were susceptible of being sustained under a narrowing construction?

Mr. Shank: Well, Your Honor--

Unknown Speaker: Or am I incorrect about that?

Mr. Shank: --In Shuttlesworth v. Birmingham, the court had in effect already given a narrowing construction... this is the second Shuttlesworth v. Birmingham, because there are two of the same name... had already been construed by the court by the time... by the lower state court by the time it reached this Court, and the Court accepted, for purposes of that case, that the new construction was constitutional, but still held that conviction under the old unconstitutional statute was not allowable.

Unknown Speaker: But... but that wasn't because the statute was a nullity, was it?

Mr. Shank: Yes, Your Honor.

The statute was invalid on its face.

The court didn't--

Unknown Speaker: Well, did... did... the court hold it had to be reenacted by the legislature?

Mr. Shank: --No, because, in the interim, it has been subjected to a new constitutionalizing construction, which the court--

Unknown Speaker: Well, then, if you say... then, if you say it a nullity, it seems to me that's a term that's not... the definition of which is not self-evident.

It certainly wasn't a nullity in the sense that the legislature didn't have to reenact it.

Mr. Shank: --Well, I think one of the clear points that demonstrates that it was a nullity--

Unknown Speaker: I am right about that.

Mr. Shank: --Excuse me, Your Honor?

Unknown Speaker: The legislature did not have to reenact it; it was still on the books with the narrowing construction after the state narrowed it.

Mr. Shank: That's true.

However, the Court did say in Shuttlesworth that under the statute, as it was written in its unconstitutional form, even though Shuttlesworth had applied for a permit, that he had been under no obligation to do so because of the statute's invalidity.

And it would completely unfair to say that a person had no obligation to comply with the statute because it was invalid, and then to subject them to a conviction, simply because it had later on been construed.

And so I think the fact that that... there was no requirement to comply with the invalid statute is a clear indication that it was in fact a nullity, because the Court wouldn't say you didn't have to comply with a valid statute.

In addition to... excuse me, Your Honors... in addition--

Unknown Speaker: Excuse me.

That... that means that the only way a statute can ever be narrowed, the only way you can ever give a narrowing construction to a statute is to have a prosecution of someone who... who is not smart enough to challenge it facially on constitutional grounds, or perhaps who is, but the court... the court throws out the case against that defendant, because the statute really doesn't mean what it seems to mean.

Is that the only way you can get a narrowing construction?

You see, I'm worried about what you're saying.

I don't understand how it... how... how can state courts given narrowing constructions, then, if, whenever they give one, the defendant gets off?

Then it's not a holding.

Then it's not a holding at all, it's just dictum.

Mr. Shank: --Well, I think that the court can do just what you said and say we cannot prosecute this particular defendant because the statute is unconstitutional.

Unknown Speaker: And all the rest is dictum?

Mr. Shank: I don't think that that would necessarily be true, because oftentimes the courts--

Unknown Speaker: No, the... the court then goes on and says, but, if you bring us another defendant, right--

Mr. Shank: --That... this is how--

Unknown Speaker: --under this same statute, in the future, this is how we would interpret it.

And that new defendant is on... is on notice.

Isn't that... all that dictum?

Mr. Shank: --Well, but, Your Honor, it's no different than when the court makes that same determination at the appellate level.

It doesn't mean that the decision is mere dictum, it stills says that the defendant is excused from liability and the court's holding is still the next interpretation of the statute that binds everybody else who is prosecuted.

In addition, if I understood your question, I think there is a different kind of situation where the court can narrow.

And that is the one that is frequently cited in Dombrowski, the famous footnote, Dombrowski Number 7.

And that is where the essential problem with the statute is not its overbreadth, but the overriding problem with the statute is its vagueness.

And in those circumstances, that's the kind of case where this Court has held many times that that person who falls within the hard core of what the statute addresses doesn't have... can't succeed under a narrowing type of construction, but--

Unknown Speaker: Ms. Shank, in... in your view, could the State of Ohio constitutionally apply this statute, now that the supreme court has construed it, to another defendant?

Mr. Shank: --Well, Your Honor, our third issue is that we do think that it's still prescribes protected materials and that it is... fails to serve a compelling state interest.

But were it, now, successfully made constitutional, yes, it would be applicable to those in the future.

Unknown Speaker: Well, so, in that sense, as Justice Kennedy points out, there may be some problem with calling it a nullity, if it can be applied to people in the future after the living... after the limiting construction?

Mr. Shank: I understand what you're saying, Your Honor, and I thought about that in terms of whether or not it would be better to try to address the question of void/voidable, but this Court's own language has always been either that it was invalid or that the statute itself was void.

And I think that that makes the most sense, in terms of accepting the Federal Constitution as the basis upon which all laws must be built.

If it violates that foundation of the Constitution, it should not have any validity.

And so from that perspective, I think that... that void is an appropriate term.

And I wanted to point out, Your Honors, that the policy behind allowing this is truly the core of the overbreadth doctrine, which allows one, whose own... whose own conduct may not be protected, to challenge a statute.

Because if one, whose own conduct wasn't protected, could not challenge a statute for its overbreadth and succeed, if in fact all that he could achieve would be a narrowing construction and then a subsequent conviction, there would be no point to him ever raising the challenge.

Unknown Speaker: It's a possession statute, right?

Mr. Shank: Yes, Your Honor, it is.

Unknown Speaker: Well, is it... is it clear that we would apply the overbreadth doctrine to this?

Is... what is... what is the expression?

What is the First Amendment expression protected by this?

Mr. Shank: What's being prohibited--

Unknown Speaker: He's not expressing this photograph to anybody, it's... it's his own photograph, he could have taken it himself for his own delight, right?

Mr. Shank: --That's true, but it's just like a book that you buy for yourself or a diary that you write for yourself, it's... it's a communication that you hold.

Unknown Speaker: To yourself?

Mr. Shank: Well, certainly.

And when one holds a book and then subsequently reads it, it's still a communication.

And when one holds a picture and subsequently views it, it's still a communication.

Unknown Speaker: If there were restrictions upon the distribution of that book to you, those restrictions would relate to the First Amendment, to communication.

But if the restriction is just something you do in the privacy of your own room, I don't see how that's a First Amendment communication interest and how the overbreadth doctrine would even apply to it.

Mr. Shank: Well, Your Honor, I think that anything that one uses... and now we're moving towards the issue of the privacy interest in your own home--

Unknown Speaker: Right.

Mr. Shank: --anything that one uses in one's own home, whether you want to characterize it as eliciting feelings or as being communicative or generating new thought processes, it's all protected by the First Amendment.

As this Court said in Stanley v. Georgia, the state has no interest in controlling the thoughts of any person or controlling what one person has... or in even viewing into the contents of one's library.

And I think under that analysis, it definitely is a First Amendment, protected-type of communication.

Unknown Speaker: A lot of water has flowed under the bridge since Stanley, Ms. Shank.

You know the Court really narrowed Stanley [inaudible] and cases like that.

And... and here the state, I would think, has considerable interest in preventing any access to child pornography in a way it wouldn't have to just obscenity.

Mr. Shank: Well, one of the things about this case is I don't believe that the state has demonstrated any kind of compelling interest in regulating the materials addressed in this statute, at least with regard to those that depict children under the age of 18 and over the age of 15.

Unknown Speaker: Well, why does the state... why does the state have to demonstrate a compelling interest?

Mr. Shank: Well, even if the Court wanted to say it was merely substantial, but we are talking about fundamental constitutionally guaranteed rights--

Unknown Speaker: A fundamental, constitutionally guaranteed to have child pornography?

Mr. Shank: --No, it's not a right to child pornography.

It's a right to have... to receive communications, it's the right to privacy in the home--

Unknown Speaker: Well, but... but you're... in this case, this man was convicted of having pictures of nude, minor males in his possession, so as to apply it to him, it's a right to receive child pornography, isn't it?

Mr. Shank: --It would be... that... that would be included within that broad right, yes, Your Honor, it would be.

Unknown Speaker: That's... that's the interest the state has to show some... you say a compelling interest, but perhaps that isn't the test; that's the interest the state is protecting here.

Mr. Shank: Well, the state does claim to be protecting its right to stop sexual abuse of children, which it says is necessarily involved in production of these types of pictures.

However, the State of Ohio, at least with regard to those over the age of 15, permits sexual conduct.

It's legal for any adult to have sex with a child over the age of 15 in the state.

Fifteen is the age of consent, and under Ohio revised code 2907.04, corruption of a minor, adults may have sexual conduct... that is, any kind of sexual activity with one 15 years of age or older.

And I think before the state can claim that it has an interest in stopping sexual abuse of children by invading people's homes and privacy and controlling the regulating... regulating this type of depiction, it first must try to stop what it alleges to have a compelling state interest in stopping, that is, sexual abuse, by making that actual conduct illegal.

Unknown Speaker: I think having... having sexual relations with a... with... with a minor under... what is it, under... 15 is the age?

Mr. Shank: Yes.

Unknown Speaker: I mean, I assume that if you didn't make 15 the age, or you would... you might be convicting many 18-year-olds for having sexual relations with... with 17-year-olds.

That's quite a different interest in protecting minors than the interest in protecting minors from being used as the... as the subject matter of pornographic distributions.

I mean, isn't that... isn't that a different interest?

Mr. Shank: Well, it is a different interest, and the states recognize that different interest in other statutes.

There is a statute that says that you cannot have sexual contact, which is any kind of sexual touching short of intercourse with one who is between the ages of 13 and 15 unless there is a four year or less difference in the age of the older partner and the child contacted.

So when Ohio has chosen to make that kind of age differentiation, that you just mentioned, be critical, they have put it into the statute.

That's not what happened with the age of consent.

The age of consent statute makes no limitation.

Any adult may engage freely in sexual conduct, which is all types of sexual activity, with anyone over the age of 15.

If the State of Ohio, if the general assembly believed that sexual conduct constituted sexual abuse, they would have made it illegal to engage in that activity.

Trying to then assert a state interest in stopping that activity to justify the regulation of private, in-home possession of such depictions makes no sense, when the state has yet to try to stop the activity by overtly prohibiting it.

Unknown Speaker: I'm saying the activity is different from being in the career of portraying the activity.

You can think it is worse to bring a child into the career of being a porno star than you can think it is to have sexual relations with a child on one occasion.

Isn't... isn't that quite a different thing?

Mr. Shank: I see what you're saying, Justice Scalia, and I do think that there's a difference between a commercialized drawing in of a child into a life of pornography and the things that are dealt with in this statute.

This statute does not address commercial production, distribution.

This statute is completely limitless in terms of the types of materials that can be used.

Unknown Speaker: xxx but the evil at which it's directed is that.

I mean the state asserts that the only way to dry up all of these things, to dry up that kind of activity, child... the child pornography business, is to simply make it illegal to... to have this kind of material, just... just as you stop, you know, elephant poaching by making it illegal to have ivory.

Mr. Shank: Well, the state certainly has an obligation, before it starts trying to allege that it's working towards that goal, to make the activity involved in such depictions illegal, and it has not.

And it goes much further, it allows all kinds of sexual conduct.

And in addition, if the state truly is interested in stopping that kind of activity, it would not have created the exceptions that exist in this statute.

Parents are now permitted to possess depictions of children that are lewd exhibitions or involve a graphic focus on the genitals under the state supreme court's decision.

Parents are now, under this interpretation of the statute, permitted to give consent for the use of their children for the production of this type of material or to give their consent to others possessing it.

And the State of... and the statute, as construed, allows people to keep pictures like this for artistic purposes.

If, in fact, these pictures are of sexual abuse of children, there is no interest that legitimizes letting those exceptions exist.

As this Court said in Florida Star v. B.J.F., when the state creates a statute that is underinclusive and leaves a broad area of the activity it supposedly has an interest in stopping, unprohibited, the state has demonstrated its lack of a compelling interest in dealing with that subject matter.

And for that reason, I think the State of Ohio has failed to demonstrate that it has a compelling interest either in prohibiting the private, in-home possession of these materials or in prohibiting, in the broader question of the overbreadth of the statute, in bringing it into a narrowly-tailored stance that serves a compelling state interest.

Unknown Speaker: Do you read our cases as saying a compelling state interest is required before the state or the Federal Government may enact a law prohibiting the sale of obscenity?

Mr. Shank: I read Stanley v. Georgia--

Unknown Speaker: I think the answer to that is no, that obscenity is just deemed not to be protected speech.

Mr. Shank: --That's true, but I believe that when you go to the point of prohibiting the private, in-home possession, as noted in Stanley v. Georgia, and there, are again attacking or invading the fundamental rights to privacy to receive information and to think thoughts, you have again moved into the area of fundamental rights and a compelling interest is in fact required.

Now, again, and the third issue in our case is that we do not believe that these pictures fall within a category of unprotected speech.

In New York v. Ferber, this Court said that in order to constitute child pornography, the depictions must include characterization... pictures of sexual conduct.

That's not required in this statute.

And depictions of sexual conduct or sexual activity of any kind are regulated by two other statutes, the two that immediately precede this one, Ohio Revised Code 2907.321 and 322.

In fact, these still regulate depictions of mere nudity.

Now, this Court in Ferber did say that graphic or... lewd exhibitions of the genitals, so long as that phrase was not construed too broadly, would qualify as sexual conduct.

But in this case, the Ohio Supreme Court has limited the requirement that genitalia be depicted, and this construction is the only statute in the many that deal with this type of material that doesn't at least require that genitalia be depicted, and for that reason, brought it into the definition of nudity, which is included in 2907.01(H).

That includes depictions of breasts, buttocks, the pubic area, as well as genitals.

So even under the state supreme court's statute and even under the broadest characterization of the kind of materials this court felt could be characterized as unprotected in New York v. Ferber, this statute falls.

And as I previously pointed, out, this statute does not address depictions that are commercial in nature.

It also includes mere possession and viewing... simple viewing of these photographs.

And Ferber dealt with the production and distribution of this type of material.

For that reason, we do not believe that it falls within the Ferber definition, and as I previously pointed out, I do not think that it fits the state... that the state has demonstrated a compelling state interest in prohibiting the possession of these materials.

I reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Ms. Shank.

Mr. O'Brien, we'll hear from you.

Argument of Ronald J. O'Brien

Mr. O'Brien: Mr. Chief Justice, and may it please the Court:

Ohio has adopted a comprehensive statutory scheme dealing with child pornography, which deals with production, distribution and possession, and it goes on a continuum from material that is involving a minor, whether the material is obscene under Miller, to material that depicts sexual conduct, typically vaginal intercourse, anal or oral intercourse, and then finally, what's involved in this case, material that depicts child-oriented nudity.

The Ohio Supreme Court, and prior to that, the Tenth District Court of Appeals... we have ten Ohio appellate judges looking at this statute, and all of them concluding and giving a proper narrowing construction... the statute... when you consider the entire scheme in pari materia, when you consider the exceptions and exemptions is... is directed at the lewd exhibition or the graphic focus on the genitals.

Ferber itself in the New York statute in question in Ferber permits, as a description of unprotected speech as child pornography, lewd exhibition of the genitals.

It's the State's position that the statute, both on its face and as applied, was... was constitutional with respect to the defendant Osborne.

The statute itself, when you... when you read it, and the Ohio courts made this clear, is directed at the kind of material the court was concerned with in Ferber and found that to be unprotected speech.

Ohio, along with 18 other states, has also concluded that you need to address this problem not just with respect to production, not just with respect to distribution, but it's also necessary to get to the point of prohibiting possession of material that fits... fits the definition, and that possession follows a continuum in those three state statutes, not only with respect to the lewd exhibition of the genitals, but also with respect to the obscene and/or the actual sexual conduct depicted in the... in the materials.

The state thinks that the defendant in this Court is extending what this Court has repeatedly said should be viewed narrowly, and that is the... the Stanley decision from 1969.

Stanley obviously predated Ferber, and the Court, I think, when the Court factors in the Ferber decision with Stanley, and looking at Stanley itself, it said, where... where compelling reasons exist, the state can enter into the home and prohibit certain possessory offenses involving printed, filmed or recorded material.

That this case is an exception to Stanley in that regard, that this... this case is a case that does present compelling reasons, as the Court recognized in the... in the subsequent Ferber decision.

The child pornography in question, and I think the record in this case amply reflects we're not talking about mere nudity here, we're talking about almost gymnastic poses with a young man, which the defendant admitted, and I think in response to one of Justice Blackmun's questions, we should point out the evidence of the defendant's knowledge of this young man... young man's age, apart from just looking at the photographs themself, was the defendant's admission that when they were given to him, he was told the boy was 14.

On the back of State's Exhibit 1D there is a notation that says Tommy-13> ["].

So the evidence was clear with respect, apart from looking at the photograph, that the evidence was clear that it is a young man.

It is the kind of material the Court, and I think the 18 states in addition to Ohio that have prohibited possession, is concerned about.

The gymnastic-type poses involved in this case concentrate graphically on the stretched anal area of the boy, the boy having a... all parts of his body exposed, his genitalia turgid... how the defendant himself described it.

In one of the photographs there is a dildo which... which the defendant admitted he recognized as a dildo, which is placed to the man's anus.

So I think when the defendant... appellant in this court describes the statute as dealing with mere nudity, I think we have to look at it in the context of the material that he was prosecuted for possessing, and that material I think clearly is within the confines of Ferber.

And when we look at the state interest that justifies going into the home, prohibiting that possession, and I think I agree with Justice Scalia when he made reference to.

We're not talking about pure speech, we're not talking about core First Amendment expressive type of conduct, we're talking about a possessory offense dealing with certain kind of material that has the visual depictions of the minor engaged in this kind of specified sexual conduct, or the lewd exhibition of the genitals.

And I--

Unknown Speaker: Mr. O'Brien, what do you do about the overbreadth contention that... I mean the... the defense's argument here is that Mr. Osborne had every reason to read this statute and say, that's a ridiculous statute; it's... it's just too broad.

You mean somebody can't have a picture of a nude child?

You know, what about parents?

Obviously, the statute is too broad, since it's too broad, I know the Supreme Court law, it's... well, it can't be imposed against me.

What do you do about that?

Mr. O'Brien: --Well, I think, Justice... Justice Scalia, I think that the defendant, or anyone else like him, looking at this statute, even before the Ohio Supreme Court construed it could look at that the continuum I mentioned earlier, look also specifically at this statute that prohibits the possession of nudity-oriented material, except under the following circumstances, and the statute itself sets forth the kinds of circumstances that would be exempted or accepted.

And it seems to me that the defendant in this case knew that the kind of material he possessed is the kind of material the statute was directed... directed at.

Unknown Speaker: Oh, I'm sure he knows that.

But that's often the case when a defendant is prosecuted under... that's what the overbreadth statute means, even if you're in the core of what the legislature was obviously directing its guns at, if they've... if they've drawn too... too wide a... an area, it's too bad.

Mr. O'Brien: Well, I think the... the Ohio Supreme Court, in addressing that, is how I believe I should respond, and that is looking at the statute as a whole, and looking at the exemptions and exceptions in there, that it did give fair notice, fair warning to Mr. Osborne and others that this is the kind of material that it was designed to address, and not just mere nudity.

Otherwise, there is no reason for the legislature to have inserted in the statute the exceptions and exemptions for artistic, medical, proper... other proper purposes that are in the statute itself.

Otherwise there's no reason for them to be in there if the defendant would take it to mean we're only dealing with mere nudity, which obviously is not the type of conduct that can be proscribed, mere nudity.

Unknown Speaker: I'm not sure I understand what you're saying.

Are you saying that the only issue in this case is whether he had sufficient notice?

And that so long as... as a court narrows the statute when it's brought before it for construction, the only question presented is whether the defendant had sufficient notice that what he was doing was unlawful?

Mr. O'Brien: Not the only question, but I think it's one of the questions that would be before the Court, and I think that the Court would say, looking at the--

Unknown Speaker: I know it's one of them.

What... is it the only one?

If it isn't the only one, then... then the other one is, was it overbroad?

Mr. O'Brien: --Well, I think the Court would ask... yes, it was overbroad on its face before it was construed by the state court.

Unknown Speaker: It was?

Mr. O'Brien: Correct.

And I think the Court addressed that in Oakes last year, that the defendant may raise the defense, that doesn't mean that he wins when he raises that overbreadth defense.

And it--

Unknown Speaker: But didn't the majority of the... the members of the Court in Oakes want to look at the statute as it was originally written and... and wouldn't accept a subsequent mooting of the case?

Mr. O'Brien: --Well, that was a legislative mooting, Justice O'Connor--

Unknown Speaker: Well, but, nonetheless, the focus was on the statute as originally written?

Mr. O'Brien: --That's correct.

Unknown Speaker: And what if that is done here?

Mr. O'Brien: I think if that is done here that, looking at the statute as... as originally written, it seems to me that when you consider the proper purposes, exceptions and the other exceptions and exemptions in the statute, and the entire statutory scheme, it seems to me that it is not overbroad, even before the narrowing construction.

Unknown Speaker: But what if a majority of this Court thinks that it is overbroad as originally written, as apparently the members of the Ohio Supreme Court thought?

Suppose we think that's right.

Now, where does that leave you?

Mr. O'Brien: Well, I think that would leave us, if a... if a majority of the Court thinks the statute as written prior to being narrowed is overbroad, at least five members of the Court in the Oakes case would say that the statute was a nullity from the beginning and that it is a proper method to say the defendant's conduct was lawful at the time committed, and therefore can raise that overbreadth defense and have the conviction reversed.

And it would; I suspect, also result in the defendant's discharge if that's the Court's view.

I think the Court would--

Unknown Speaker: Is that inconsistent with Shuttlesworth?

Mr. O'Brien: --I... I think, Your Honor, it's our position that even if the Court would look at the overbreadth argument and say it's invalid on its face, the conduct was lawful, the statute not applicable, that the defendant may be entitled to have the conviction reversed, and be retried, but not discharged.

I think I would make the distinction between a reversal of the conviction with a remand for a new trial, as opposed to a reversal of the conviction and a discharge by the defendant, because the statute was invalid on its face and... in toto, in... right from the beginning.

Unknown Speaker: xxx a state court where... where an overbreadth objection to a conviction is urged and the... the state supreme court says, well, that isn't what the statute means at all; it's not overbroad at all because here is what that statute means.

We're not a legislature and we can't change the terms of the statute, but we construe what the legislature meant.

Is that what the Ohio Supreme Court did?

Mr. O'Brien: That's what my position is, Your Honor, they took a statute, not only the Ohio Supreme Court, but--

Unknown Speaker: They just construed it?

Mr. O'Brien: --Correct.

Unknown Speaker: This is what it's always meant?

Mr. O'Brien: I believe that's... that's my view of what they did.

Unknown Speaker: And if you... and if you think it meant something else, you're wrong?

Mr. O'Brien: That's... that's my view of what they did, yes, Your Honor, and I think it was a proper and rational decision by them, looking at the statute, what... what its purposes are in the context of all the statutes that deal in this area, together with what the legislature was trying to get at, including the exceptions and exemptions.

I don't think any other conclusion could have been reached by them or any other reasonable person.

Unknown Speaker: But for a person who is confronted with that statute, ex ante, before the supreme court has adopted that construction, for him to be bound by it, surely he has to be able, reasonably, to predict that kind of construction?

Mr. O'Brien: I... I agree with that, Your Honor.

And I think looking at the Ohio statute in this case, that the defendant could reasonably predict that the kind of material we were trying to proscribe was not "mere nudity", but was that which was something more than mere nudity.

Unknown Speaker: Well, wouldn't you go further than that and say that the state must also put in the... those elements of the statute as part of its case, which you didn't do?

You didn't show intent--

Mr. O'Brien: I think--

Unknown Speaker: --you didn't show lewd exhibition.

The jury was charged in those terms.

Mr. O'Brien: --Well, I think I would make a distinction as to... as to whether the state proved it and whether there was a jury instruction on it.

The state clearly proved there was a lewd exhibition of the genitals by virtue of marking, identifying and having... admitting into evidence the photographs themselves, which speak for themselves.

Unknown Speaker: But the jury wasn't charged on that.

Mr. O'Brien: The jury wasn't charged on that, and the Ohio Supreme Court, I think, Your Honor, addressed that by saying, we agree that jury was not charged on this issue, we are not going to relieve the state from that burden.

We will look at this material, and it's clear, beyond per adventure, when you look at the material, we're dealing with a lewd exhibition of the genitals.

Had the jury been charged in that regard, the jury could not have come to any other conclusion.

Therefore, using the plain error doctrine, or harmless error, that it was not reversible error--

Unknown Speaker: The case is so obvious we don't really need a jury trial?

Mr. O'Brien: --No, I'm not saying that, Your Honor.

Unknown Speaker: That's, in essence, what the appeals court is saying, right?

Mr. O'Brien: I don't think so, Your Honor.

Unknown Speaker: The jury never found it, but it's so obvious that any jury could find it.

I mean we could get rid of a lot of jury trials that way.

Mr. O'Brien: Well, I don't think that's what happened in this case, Your Honor.

I think what... what was presented to... to the jury and I... I must say that--

Unknown Speaker: But the jury was never asked to find it, and the jury never did find it, did it?

Mr. O'Brien: --No--

Unknown Speaker: The jury never found it?

Mr. O'Brien: --No, Your... no, Justice Scalia, they did not.

But I think the... the plain error doctrine, in that instance, the court will say that unless the manifest miscarriage of justice will occur, and the Ohio Supreme Court addressed that in this case, that... and I assume that had they felt that a manifest miscarriage of justice would occur if the defendant's conviction would be affirmed under those circumstances--

Unknown Speaker: Did the... did the defendant request any... any charge on intent?

Mr. O'Brien: --The defendant did not request a scienter intent charge or did not request a limiting instruction with respect to the lewd exhibition of the genitals that was later the narrowing construction by the Ohio Supreme Court.

Unknown Speaker: Do you think the... do you think the Ohio Supreme Court's opinion really means that they said that, to the extent this statute reaches mere nudity and other things, it is unconstitutional and... but we'll just declare it unconstitutional to that extent?

Is that what they did, or did they just say the statute has always meant this?

Mr. O'Brien: I... I read it, Justice White, as saying that we are construing this statute, and this is what it meant when it was enacted and when it was adopted, and that's what it's directed at.

And... and that's... that's how I read the decision, and they were not doing anything other than construing that statute in that regard.

Unknown Speaker: So that's different than a legislative revision of the statute pending appeal?

Mr. O'Brien: In my view it is, because in a tradition of common law, the courts, on appeal, have that option of construing statute, and I think it's different than a subsequent legislative amendment changing the elements of the offense, particularly with respect to what happened in Oakes.

I would make that distinction.

I think, with respect--

Unknown Speaker: Suppose the defendant here had asked that... that the jury be charged with reference to intent, and the trial judge had refused the instruction, the same result, a valid trial?

Mr. O'Brien: --And when you say intent, you mean regarding a lewd exhibition of the genitals or--

Unknown Speaker: Yes.

Scienter.

Mr. O'Brien: --If the defendant had requested it and it had been denied, I would agree there would be a problem, yes.

Unknown Speaker: Well... how is that different from what we have here?

Mr. O'Brien: I think it's different from what we have here because at first the defendant didn't request it, and... and [inaudible].

Unknown Speaker: Well, I mean, why... why do you say there's a problem?

It's just denying the defendant the satisfaction of having the jury consider something, which you now say it doesn't have to consider anyway?

Mr. O'Brien: Well, I guess, just in my own mind, in terms of making a record, I would... I would think the defendant would be better off had that requested instruction been made, had it been denied and then they were claiming that was error.

Unknown Speaker: But you... you acknowledge that there is a real problem if he request the instruction and it's not given.

And I assume that's because the jury verdict is somehow inaccurate as a reflection of what the statute requires.

And I don't see how that's any different from his failing to... to ask for something which the... which was not in the statute until the court later construed it.

Mr. O'Brien: Well, I guess it just seems to me that the defendant would be better positioned to argue that... that it was error and... and reversal of his conviction is justified had he requested it and had it been denied.

And maybe I'm wrong in that regard, but it just seems to me that that would be a better position for the defendant to be in than to not have requested it, not have it denied and have the matter go up on appeal and raise it for the first time in an appellate court, and... and say that... that it was a problem.

Unknown Speaker: Does Ohio have any doctrine that the courts will imply an intent requirement?

About 40 years ago this Court decided a case called United States against Morrisett, where we said that even thought the statute punishing someone criminally did not say that there was an intent requirement, one would be implied on common law principles.

And so the federal courts have frequently implied the existence of an intent requirement, even though the statute didn't say so.

Does Ohio have any similar doctrine, do you know?

Mr. O'Brien: Yes, Mr. Chief Justice, 2901.22 of the Ohio Revised Code, and it's discussed in the Ohio Supreme Court opinion in this regard, says that when a statute is silent with respect to intent or scienter that unless the... the criminal proscription plainly indicates that strict liability is to be imposed, that you pick up another statute with a minimum culpable mental state of recklessness, which... which, at least in this regard, is... is the perverse... the disregard of a known risk.

Unknown Speaker: So a defendant defending a prosecution under this statute would have presumably been justified in asking for an instruction on recklessness in this case, on the basis of that statute?

Mr. O'Brien: That would be my view, Mr. Chief Justice.

And there have been two Ohio Supreme Court opinions, one in 1980 and one in 1984, which I cite at page 37 of the brief, that... that have... have done that, with respect to the child-endangering statute, and with respect to certain prostitution offenses, where there is no mental state in the statute itself, but they pick up the recklessness statute.

And we argue that both the statute, which is 15 years old, and those existing Ohio Supreme Court decisions did give an indication that that was, you know, an element of scienter.

With respect to... to Stanley, and that is an issue that not only Ohio, but the other 18 states that have possession offenses on... on the books in the various states have great concern, and that is whether Stanley would preclude the application of a possession offense when we're dealing with the defendant's own home.

It's our position that the Court found in... in Ferber that there are a number of interests the state has in controlling and regulating child pornography, mainly because of the harm caused to children through its production, distribution and use.

That harm being physical, psychological, emotional mental, physiological, and that that interest in proscribing possession of the material is the same as it is in a production and distribution.

The permanent record of harm which the Court was concerned with in Ferber is ongoing and continues, while the possession occurs in the privacy of the home.

And I must note that... that it, either in the District of Columbia here or in... anywhere across the country, you cannot walk into a stand, or what might be called adult bookstore, and purchase child pornography, simply because the... the distribution statutes and this Court's decision in Ferber, it has been driven underground.

The only method... or an additional method that the state needs in that underground child pornography market is that possession offense if we're going to dry up the market.

That is an interest I believe the state has, in addition to the interest of avoiding that continuing haunting fear on the child who's been used in this kind... in producing this kind of material.

The Court was concerned with... and noted in Ferber itself that that permanent record was evidence of ongoing harm due to the psychological and emotional distress to the youngster.

Just by knowing the fact that it's out there, many times it's used to blackmail the youngsters, the fear of subsequent public exposure or use in commercial distributions all cause that child, in trying to recover from the original abuse, the child's sexual abuse, trying to recover, that is what the experts say a severe problem in addressing it.

And I think the possession statute, in... by just merely saying it is illegal to possess it, goes a very long way in... in fighting the problem, which has been... has gone underground, in trying to dry up that market, which I think the state has a very strong interest in doing.

Unknown Speaker: The fact... let me just ask... the fact that it's gone underground, I don't see why that makes efforts to prohibit the sale or the commercial distribution unlawful, though.

I mean, that's still an effective way of attacking this problem, isn't it?

Mr. O'Brien: It's an effective way, Justice Stevens, but I... I believe that the states need that additional tool of a possessory offense.

If they are... they are denied that possessory offense and are told you must only prosecute people in this industry or pedophiles who are interested in collecting or keeping this material, if you are only permitted to prosecute those who produce or sell it or otherwise distribute it, I think we're going to have a serious problem in trying to... to continue to address it, simply because the production is always surreptitious.

Unknown Speaker: Well, but that's true of a lot of criminal activity.

Producing narcotic drugs, for example, is surreptitious and the sale is surreptitious, but they make lots of arrests of people who do that sort of thing.

Mr. O'Brien: And many of the arrests are on possession offenses.

Unknown Speaker: Right.

Mr. O'Brien: And because you are able to arrest those people on possession offenses, you are able to even move up the ladder to those involved in the sale and distribution.

Unknown Speaker: But... but you seem to talk about the fact that it's underground means that... that the prohibition against sale and production is meaningless, but I just don't quite follow.

Mr. O'Brien: No, it's not meaningless, Your Honor.

In fact, we still have two good statutes that we will use when we can prove production and distribution.

What I'm saying is, is because it's underground and you can't walk into Paul Ferber's bookstore in Manhattan and buy child pornography today, that because it's underground that the additional tool of having a possession offense is necessary to address the problem.

And that the state does have an interest in going to that possessory offense and applying it to... to the home or anywhere else that it might be possessed.

So I guess what the state's interest, besides that is, is as we pointed out in our briefing materials, not only the permanent record of harm that exists, but we can attempt to dry up the problem with that additional tool.

And finally, the materials used to... to continue that cycle of child sexual abuse that... that the Court addressed in Ferber, by means of seducing other children to engage in activity, and we have cited in our brief an extensive background regarding how the material is used to further additional sexual abuse, to condition children to the use.

I guess, in comparing those interests with the defendant's interest, I think that's what the Court needs... needs to do, and the defendant's interests to receive information or ideas, it seems to me are de minimis compared to what the state's interests are.

And I fail also to see what idea or information is conveyed by the four photographs in question here.

It seems to me we're not discussing the merits of... of sexual conduct with children or debating that.

It seems to me that the... the idea communicated or the items in the library that's supposedly infringed is... is very minimal compared to the state's interest in... Justice Stevens, do you have a question?

Unknown Speaker: Another question I had.

We talked about a scienter requirement in this, what is it in the way of scienter that has to be proved under the--

Mr. O'Brien: It would be recklessness under the--

Unknown Speaker: --Reckless... what sort of recklessness?

I mean, in what regard was--

Mr. O'Brien: --Well, there is... there is a specific definition.

There are four culpable mental states in Ohio, purposely, knowingly, recklessly, and negligently.

Unknown Speaker: --Well, purposely... say it's purposely knowing.

What does the... what does the defendant have to purposely know?

Mr. O'Brien: He has to perversely disregard a known risk is the statutory language.

Unknown Speaker: Well, but... but, risk of what?

I mean, he knows it's a picture of a child.

Is that all that's required?

Mr. O'Brien: Well, it seems to me, he has to know it's a picture of a minor, he has to know that it is a minor which is nude, and not only nude but involving a lewd exhibition or graphic focus on the genitals.

Unknown Speaker: And the defendant contends he didn't know any of these things, is that what it amounts to?

Mr. O'Brien: I'm not sure he contends he didn't know those things; I think he's contending that the statute, at the time, before its construction, would not lead him to believe that.

Unknown Speaker: Not--

--He's contending at least that the jury... that the jury didn't find that he knew those things?

Mr. O'Brien: I... I think that's correct, Justice Scalia.

And, in conclusion, the... the State of Ohio would--

Unknown Speaker: Would that apply if he was blind?

Mr. O'Brien: --I would say not, because there's no way the state could prove that he... that he knew the material that he possessed depicted the visual depiction of a minor and that the depiction was a--

Unknown Speaker: xxx Ohio [inaudible] with the possession of one marijuana cigarette are you guilty of a crime?

Mr. O'Brien: --One marijuana cigarette would be what is known in Ohio as a minor misdemeanor, and particularly with respect to marijuana if the amount is less than I believe 100 grams, which is approximately three ounces.

It's not a criminal offense.

Unknown Speaker: Isn't the usual statute possession with intent to distribute?

Mr. O'Brien: There are statutes like that, but in addition to that, Justice Marshall, there are also simple possession statutes.

Possession has to be a knowing thing.

If someone walked up and put something in my pocket and I didn't know it was there, and I got stopped, you know, I didn't knowingly possess it, even though it was on my person.

And it seems to me, however, that is different from, you know, knowingly possessing an item, whether it's a marijuana cigarette or photos.

Unknown Speaker: So your main idea is to protect the children?

Mr. O'Brien: Correct, Your Honor.

Unknown Speaker: Where were these children from?

Mr. O'Brien: The record in this regard, Justice Marshall, indicates that the defendant obtained them from a man... in Columbus he obtained them... from a man in Florida who was charged with federal postal mailing of child pornography.

Unknown Speaker: And what... what interest does Ohio have to protect the children in Florida?

Mr. O'Brien: Well, there's no evidence that the photographs were taken in Florida.

The photographs were delivered to Clyde Osborne by Jack Smith in Columbus, Ohio.

Unknown Speaker: Were the pictures taken in Ohio?

Mr. O'Brien: The record says the pictures could have been taken anywhere.

However, Justice Marshall, I believe the State of Ohio has an interest--

Unknown Speaker: Including Egypt?

Mr. O'Brien: --The pictures, according to the records, could have been taken anywhere.

Unknown Speaker: I don't see how you protected the children in Ohio.

Mr. O'Brien: Well, I... I think that protecting the children in the State of Ohio--

Unknown Speaker: Wouldn't you call that overbroad?

Mr. O'Brien: --I don't think I would, Your Honor.

I see the red light is on, so I will conclude my remarks.

Thank you.

Unknown Speaker: Thank you, Mr. O'Brien.

Ms. Shank, you have seven minutes remaining.

Rebuttal of S. Adele Shank

Mr. Shank: I think one of the remarks that was made close to the end of Mr. O'Brien's comments is telling about the effects of this statute.

He noted that when the state finds that it is able to, it will use its other two statutes on production and distribution to go after people who have this type of depiction.

Those two statutes already prohibit possession of those kinds of depictions that constitute obscenity in Ohio and that depict sexual activity as it's defined under the Ohio law.

Mr. O'Brien's acknowledgement that those statute will be used... used to go after these people is a clear indication that the construction of this statute has moved it from what it originally was intended to be by the Ohio legislature, which was a prohibition against depictions of mere nudity, and changed it into a child pornography statute, which is what those other two statutes, Ohio Revised Code 2907.321 and 322 are.

Unknown Speaker: xxx the supreme court's opinion, they... they say this is what the statute always meant.

They construe the statute and say this is what it's... this is what it's... what it's always meant.

They don't... they... they deny that it's ever been overbroad.

Mr. Shank: Well, Your Honor, I know that they do claim that it is not overbroad.

I am not sure they go quite as far as saying that they had absolutely... that it was clear that that's what it meant.

In fact, on page 42 of the joint appendix, the beginning of the first full paragraph, the court acknowledges that it is true that the statute does not expressly limit the prohibited state of nudity to allude exhibition or graphic focus on the genitals.

Unknown Speaker: Not expressly, but then they say if you take into consideration the other aspects of the statute, it doesn't cover just nudity.

Mr. Shank: I agree that they do say that, but they say it in a very--

Unknown Speaker: Well, that's the construction.

Mr. Shank: --It's a... Your Honor, I have to... I simply point out to the Court that their language is kind of back and forth, and that at the conclusion of that little discussion, they do then say, and that's... this is in the center of the final full paragraph, again, on page 42 of the joint appendix, that as... authoritatively construed that day by the court.

So, I think that although the court does waffle on the point, I think it's very clear from its own opinion that it acknowledges that that wasn't the case and that it's construction that day is what brings the statute into what it hopes to be constitutional lines.

Another point that was raised by Mr. O'Brien is the fact that he alleges that 18 other states have statutes that are very much like ours.

In fact, that's not true.

None of the 18 state statutes cited by Mr. O'Brien or in the amicus brief from the Ohio Attorney General include viewing as a potential for conviction.

Every other statute requires that there be a depiction of the genitals.

A number of those statutes, although they prohibit possession... prohibit possession for specific purposes, some of them for distribution.

Essentially, there is not a single statute that replicates the Ohio statute.

Ours is the broadest statute in the country.

Mr. O'Brien suggested that a retrial would be appropriate in this case, and it would not.

Unknown Speaker: Excuse me.

Is that before or after the--

Mr. Shank: That's after the construction.

Unknown Speaker: --After the construction.

Mr. Shank: Yes, because even after the construction, Ohio still includes mere viewing, and Ohio includes possession without any restriction for why it's possessed, and Ohio does not require that genitals be depicted.

With regard to whether or not this should go back for retrial, the answer is no.

Even though the statute was construed, and even though the state contends that there might have been sufficient evidence, which we do not acknowledge at this point, to get a conviction, had it been dealt with properly, you can never make up for the fact that the defendant didn't have notice at the time he acted of what conduct was prohibited.

When a statute uses--

Unknown Speaker: But if... if the state supreme court has construed it more narrowly, surely the defendant must have been given notice by the language of the statute of everything he possibly could have been subjected to, and perhaps more?

Mr. Shank: --Well, in fact, I believe that what you're saying is the essence of the concept of overbreadth again.

Unknown Speaker: No, it's the essence of the contest... concept of fair notice.

Mr. Shank: Exactly, which is part of what the problem--

Unknown Speaker: Well, no.

No, fair notice and overbreadth are two quite different things I had thought.

One... one is the doctrine of vagueness, and the other is that the statute covers too much ground.

Mr. Shank: --Well, and I understand what you're saying, Chief Justice Rehnquist.

But... and Paul [inaudible] has addressed this exact issue.

When the language of the statute literally includes within its meaning, conduct that is clearly, constitutionally protected, it, in effect, gives no notice that any conduct is prohibited.

And for that reason, there is no notice when you have a statute that's overbroad on its face.

And this was noted by this Court in the Shuttlesworth decision.

It was also noted in another case we've cited in our brief, Ashton v. Kentucky.

In both of those cases the Court found that the statutes were invalid on their face and noted that the language used in the statutes fell within parameters that this court had held in other cases was... were unconstitutional.

Unknown Speaker: Does it make a difference that Shuttlesworth was a prior restraint case?

Mr. Shank: I don't believe it does, because the same principles were followed, as I just noted, in Ashton, which was not.

That was simply a criminal libel statute.

And the same principles were followed in Thornhill v. Alabama.

That was a loitering statute which was... prohibited picketing in the site of a labor dispute... anywhere near the site of a labor dispute.

So this type of decision has not been limited to situations where there was a licensing or permit requirement.

In addition to the fact that you can't make up for the fact that there was no notice, another aspect that I think negates against a retrial in this case is the fact that Mr. Osborne was denied the opportunity to have a fair trial or... and... and goes against... I notice my time is up.

Unknown Speaker: Thank you, Ms. Shank.

Mr. Shank: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

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