In the face of the CDA's overwhelming constitutional deficiencies, thegovernment's response appears to be a proposed rewriting of 223(a) and (d) tocover only (or mostly) "pornography," and of 223(e), the section ofthe statute outlining "good faith" defenses to criminal liability, topermit or mandate self-labeling by online speakers or other content providers,combined with a presumed or hoped-for voluntary assumption of identity/agescreening and blocking duties by the operators of Web browsers or other accessproviders somewhere down the communications pipeline. But, as we will show inI, infra, the operative terms in (a) and (d) cannot be saved frominvalidation by the radical surgery that the government proposes; indeed, thegovernment's own witnesses contradicted any claim that the CDA could be narrowlyconstrued so that it did not include mere vulgar expressions or non-"pornographic"sexual subject matter. Moreover, the government's proposed definitionalrevisions would not cure the CDA's basic First and Fifth Amendment defects: theAct would still be unconstitutional because it effectively bans protectedcommunications to adults as well as minors.
Second, other than relying on speakers themselves to screen and block, Dr.Olsen's plan would require the cooperation of many entities other than speakersthemselves -- entities that are not subject to liability under the CDA.(71) Heproposes that speakers could be relieved of the burden of screening for age ifNetscape re-configured its browser to block tagged material at the receivingend. But there is nothing in the Act to require Netscape to change its browser,or to give speakers assurance that client-end blocking would even comply withthe CDA.(72) Dr. Olsen also proposes that third-party verification systemscould relieve the speakers' burden of verifying age. But the only such systemsthat currently exist on the web require a credit card or some other form ofpayment, and provide adult access codes explicitly for the purpose of obtainingcommercial pornography(73) -- an option that is costly, and is certain toinhibit many users in search of nonpornographic communications such as free AIDSinformation or human rights reports.
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Similarly, in Erznoznik, 422 U.S. at 212-13, an ordinance prohibitingdrive-in movie theaters from exhibiting any films containing nudity was faciallyoverbroad even though a narrower statute, i.e., limited to material deemedobscene as to minors within the meaning ofGinsberg, 390 U.S. 629, might have passed muster. The plaintiff'sspeech was constitutionally protected, even as to minors. See 422 U.S. at213-14.(84) Yet there was no suggestion that he lacked standing to bring afacial overbreadth challenge. Indeed, such a result would be counterintuitiveand counterproductive: as the Erznoznik Court said, theunconstitutional "deterrent effect" of the ordinance was "bothreal and substantial," id. at 217, and this was true regardless ofwhether the individual challenging the ordinance had engaged in protected orunprotected speech.(85) See also, e.g., Houston v. Hill, 482 U.S. at458-67 (no suggestion that plaintiff gay rights activist had engaged inunprotected activity); Airport Commissioners v. Jews for Jesus, 482 U.S.569, 574-76 (1987) (overbroad ban on "First Amendment activities" atairport subject to challenge whether or not plaintiff's own speech mightproperly be prohibited; case-by-case adjudication to bring the law withinconstitutional bounds would be "intolerable" because of the "chillingeffect ... on protected speech in the meantime"); Schad v. Borough ofMt. Ephraim, 452 U.S. at 66 (unnecessary to decide what free speechprotection should be extended to nude dancing offered by appellants becausetheir claims were "rooted in the First Amendment, and they are entitled torely on the impact of the ordinance on the expressive activities of others aswell as their own"). As the Court explained in Board of Trustees v.Fox, 492 U.S. at 484, "while the overbreadth doctrine was born as anexpansion of the law of standing, it would produce absurd results to limit itsapplication strictly to that context."
The government cannot, despite its attempt, succeed in "narrowing"the coverage of the CDA to avoid its substantial overbreadth. First, as we havealready discussed, substituting "pornography" for "indecent"or "patently offensive" speech contradicts the CDA's clear purpose andlegislative history. See I, supra. Second, substituting the undefinedterm "pornography" does not by itself necessarily narrow (a) and (d),particularly where the government's explanation of what constitutes pornographyis circular: that is, sexually explicit material that, "in context,"is considered "patently offensive" according to some (undefined) "contemporarycommunity standard." Indeed, the government's own witnesses testified thatthey understood "indecent" or "patently offensive" toinclude such politically inspired vulgarisms as "Fuck the CDA";(86)and such relatively tame partial nudes as the Demi Moore photo on the cover ofVanity Fair, or leather-clad women posing for Playboy.(87)
The government's case, if anything, has highlighted rather than obscured theintolerable vagueness of the CDA. The responses offered by government witnessesSchmidt and Olsen to the Court's questions illustrated just how freewheeling thesubjective, discretionary judgments of police and prosecutors under the CDAwould be. Schmidt, for example, opined that an extremely explicit safer sexillustration of how to put a condom on an erect penis would not be subject toprosecution because its "context" was educational, not "purelyfor pleasure purposes."(90) He seemed to have the same view aboutdepictions of "couples copulating" in highly explicit erotic Indiansculptures, so long as they were presented in an "cultural" or "educational"context rather than on one of the commercial pornography sites that hesurveyed.(91) By contrast, a much less explicit partial nude on the cover ofVanity Fair magazine would be covered, according to this experiencedfederal law enforcement officer, because the "context" was notprimarily educational, but was "for fun, basically ... more for fun thananything else."(92)
Critical Path AIDS Project, the American Civil Liberties Union, Wildcat Press,the American Library Association, and other plaintiffs believe that theirsexually explicit online materials are valuable to both adults and minors. Their organizational beliefs affirmatively oppose censorship of any kind,including forced labeling. As Barry Steinhardt testified, because of the ACLU'sstrong belief in free speech, "we would object to being forced to rateourselves."(103) A labeling law would force the plaintiffs to censor theirown speech in direct violation of their viewpoints, and to present theirinformation and advocacy to the public in a stigmatizing and misleading mannerby lumping their socially valuable speech into a vague and overbroad categorythat includes pornography.(104)
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