Internet Case Presents Challenges for High Court, Lawyers

The institution that still presents quill pens to lawyers is ready to consider the propriety of restricting indecent materials on the Int...

The institution that still presents quill pens to lawyers is ready to consider the propriety of restricting indecent materials on the Internet.
The case, which will go before the Supreme Court on Wednesday, presents a tough challenge to lawyers on both sides: trying to explain cyberspace to justices unfamiliar with the place.

"The court is called upon to apply the First Amendment to a form of communication it, in effect, knows nothing about, or at least has no hands-on experience with," said David Sobel, a lawyer for the Electronic Privacy Information Center.

At issue is the constitutionality of the Communications Decency Act, the first attempt by Congress to regulate the freewheeling global computer network.

A three-judge court in Philadelphia blocked the law from taking effect shortly after it was enacted last year. The judges ruled the law would wrongly deny adults access to material that may be inappropriate for children.

The Supreme Court is expected to rule by July.

Interviews with current and former court employees, who insisted on anonymity, suggest that the Internet remains mainly a mystery for all nine justices. Lawyers arguing both sides of the case have tried to clear that hurdle by using their briefs as teaching tools.

They are also counting on input from the justices' clerks.

"There is a hope on both sides that the law clerks to the justices will play an unusually pivotal role in deciding this case," said Andrew J. Schwartzman, a lawyer representing the Citizens Internet Empowerment Coalition.

"The clerks ... are likely to be very comfortable with this technology, and we hope they will be sitting down with their justices and explaining some of those concepts."

Each justice has three or four law clerks -- young lawyers chosen from among top graduates of prestigious law schools -- who spend a year as research assistants.

While none of the justices is known to be a regular Internet user, computer technology is not new to them.

Justices John Paul Stevens and Clarence Thomas are veteran telecommuters, using word processors and facsimile machines to keep in touch with their chambers from home when the court is not in session.

But their computers are connected only to the court's stand-alone system. For security reasons, their machines are not linked to computers outside the court's stately workplace on Capitol Hill.

All justices except David H. Souter have computers in their offices.

And even though his office is not computerized, Souter has demonstrated an awareness of the technology. Last June the court struck down part of a federal law aimed at restricting children's access to indecent programming on some cable stations. Souter's opinion contained what is believed be the first Supreme Court citation of material from the Internet.

In that opinion, Souter fretted: "In my own ignorance I have to accept the real possibility that if we had to decide today just what the First Amendment should mean in cyberspace we would get it fundamentally wrong."

Now that the cyberspace issue is before the court, lawyers are scurrying to help the justices get it right.

A coalition led by the American Civil Liberties Union filed a friend-of-the-court brief in the form of a CD-ROM. It demonstrates what the Internet is about and includes links to cyberspace sites.

Court employees would not say whether any justices have looked at the "brief."

If so inclined, the justices can also rely on the lower court's opinion, which is, in part, an Internet primer.

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