MARGARET WARNER: And joining us is the NewsHour’s regular court watcher, Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times." Stuart, first of all, do you agree with what many observers at the court are saying, that this ruling, however it comes down, could be one of the landmark rulings of this term?

STUART TAYLOR, The American Lawyer: Yes, with a little hedge, certainly because of the vast importance of this new medium. And this is potentially the most important First Amendment case to come before the Supreme Court in I’d say more than 25 years just making new rules for a brand new situation. Whether the court will bring down the kind of ringing declaration that people recognize as a landmark opinion, whether they will produce a splintered thing where you have to sort of get out a chart to figure out how many votes are for which proposition remains to be seen. They may also want to move rather cautiously because you could tell in the argument today this isn’t just a matter of where we’ll take the older precedents and apply them to a new situation. They groping with the technology and with economic situations that are hard to understand, hard for them to understand, hard for a lot of people to understand, and are moving very fast. And I don’t think they want to sort of lay down some rules. They want to look like they were based on a factually inaccurate premise two years from now.

MARGARET WARNER: So we just heard the basic argument between these two partisans, but tell us about the arguments in court today; that is, taking the government first. Which of the arguments that we just heard did the government lawyers try to emphasize in arguing to uphold this law?

STUART TAYLOR: It was a very well argued case on both sides, and they covered a lot of ground. Deputy Solicitor General Seth Waxman, arguing for the government, began by saying the Internet is a revolutionary advance in information technology and part of the point was this is an opportunity. He also said it’s a revolutionary advance in just plain, patently offensive sexually explicit materials to children in the privacy of their homes. And you said it’s like giving a free pass to every adult book store and movie theater in the country to kids if we allow them unrestricted access to this technology. He also dismissed as overblown all of the concerns that, as Jerry Berman put it before, the Internet, as we know it, would be destroyed by this law, and that adults won’t be able to enjoy their own free speech on the Internet if we uphold this law for the purpose of protecting children. He got into a lot of complicated factual disagreements as to whether people would have adequate ways to make sure that children didn’t see what they wanted to put online, for example.

MARGARET WARNER: Was he asked how that could be done, in other words, how you could restrict this material technologically to minors, without restricting it to adults?

STUART TAYLOR: The very first questions from Justice Sandra Day O’Connor was about "something called CGI," and she was referring to something in the breach called a CGI script which I believe is a controlled something interface. And it has to do with Web sites on the World Wide Web which something you can do there but you can’t do in say Internet chat rooms and list serves and other areas. In a Web site if you can ask somebody questions and ask them, say give me a credit card number, give me an ID number, an adult ID number, the idea is the government is arguing this is a defense. That way they can keep kids out. And, in fact, the statute says that if you get an adult ID number or you get a credit card number from whoever wants to come and read what you’re putting out there, that’s a defense. You don’t have to–even if a kid happens to get hold of them. The other side, however, argued that it’s either technologically or economically impossible for most people, especially non-profit groups, that want to post stuff on the Internet, whether it’s racy photographs from an art museum, or whether it’s AIDS awareness stuff with sexual education material, for them to actually use these CGI scripts. So, yeah, there was a lot of–a lot of kind of groping around the technological complexity and a lot of disagreement about that.

MARGARET WARNER: And what other–just from what the justices asked the government’s lawyer, Mr. Waxman, what other challenges did they really put to him?

STUART TAYLOR: The ones who came at him the hardest were I’d say Justices Steven Breyer and Justices David Souter and Justice Ruth Bader Ginsburg. They gave a couple of hypotheticals. Breyer said what about a bunch of kids in an Internet discussion who start talking about their real or imagined sex lives? High school kids have been known to do that he said. They do it on the telephone. Are they committing a federal crime if they do it on the Internet? Obviously, he thought that would be–that was troublesome. Waxman confirmed that they could, in fact, be committing a federal crime if they do it on the Internet. His suggestion is, well, we wouldn’t prosecute people like that. Souter said, what about a parent who is looking over his kid’s shoulder, letting his child access materials that are deemed indecent by some prosecutor on the Internet, let’s say it’s art or something, is the parent going to go to prison too, asked Justice Souter, and Justice Ginsburg stressed that the lower court which struck down the law had found as a fact that it is economically not feasible for most Internet sites to make sure kids aren’t watching. And so they got those kinds of challenges, but some of the other justices, Chief Justice Rehnquist and Scalia, seemed more supportive of the government.

MARGARET WARNER: All right. Let’s go now to the coalition’s lawyer. What arguments was he most emphasizing, and where was he challenged the most?

STUART TAYLOR: Bruce Ennis, who represents the American Library Association and its 50-group coalition roughly, right out of the box says there are four reasons to strike this down. And the one he emphasized the most is it essentially bans adult speech of a broad variety of indecent but constitutionally protected from the Internet because of the practical and economic infeasibility of making sure that only adults come to your Web site or come to your chat room or your list serve or whatever. He also said they won’t be effective because of all this stuff coming from overseas, that you can do it better by having parents do it at home, and the major online services provide such software to control it at home, and that it’s so vague that people don’t know what’s legal and what’s illegal.

MARGARET WARNER: And how was he challenged?

STUART TAYLOR: He was challenged most by I’d say Rehnquist and–by Chief Justice Rehnquist and Justice Scalia. And Scalia’s biggest point was, you know, this is all changing so fast, lots of what you’re arguing to us depends on what’s available now in terms of technology, of what was available two years ago when the record was created. I throw my computer away every five years, said Scalia, and maybe what you’re saying is a big problem now wouldn’t be a problem later. And his point was this is a whole new terrain. We’ve never had a case like this. He seemed to think that cut in the direction of saying maybe we should uphold it and see if it works out okay. Some other people seem to think that the newness of that cuts in precisely the opposite direction. Bruce Ennis, for example, argued that the revolutionary sort of democracy, speech-enhancing quality of this is that everybody in the world can talk to everybody else in the world through this. You don’t have to own a radio station or something.

MARGARET WARNER: All right. Well, thanks, Stuart. We have to leave it there.

STUART TAYLOR: Thank you.

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