Ira Magaziner is best known as the chief structural engineer of the Clinton administration’s biggest boo-boo, its first-term attempt to pass comprehensive health-care reform. Though he stayed on at the White House after that debacle, Magaziner hasn’t been much heard from since, and his actual responsibilities have been something of a mystery. Well, Magaziner has been found–making policy for the Internet. Webheads, already angry at Clinton for the Communications Decency Act, might regard Magaziner’s latest assignment as insult added to injury. But in fact, the story of the Clinton administration and the Internet–and especially of how the White House came to support the unconstitutional, unpopular law known as the CDA–is more complicated and interesting than that.
Magaziner has spent the last eight months in charge of an interagency task force that is trying to figure out how to expand international opportunities for online business. I hold in my hands, a few days in advance of its release, the task force’s draft report. It contains one remarkable passage. Along with their worries about intellectual-property protections, tariffs, and technical standards, Magaziner and company write that they are concerned that “many countries, including the United States, are considering or have adopted laws to restrict access to certain types of content through the Internet. … These multiple interests may result in barriers for US providers attempting to enter certain national markets.” The report proposes a statement of U.S. policy on content restrictions: “Promote the use of industry … self-regulation and rating systems, and technical solutions to empower parents and other users to resolve contentious access issues (e.g. children’s access, pornography and violence).” (The latest version removes the word “pornography” from this sequence.)
This white paper is notable for two reasons: The first is that the chief author, who is known (fairly or otherwise) for his fondness for heavy regulation, seems to be leaning in a more libertarian direction. Congratulations, Ira. But the more significant point is that the report completely contradicts what has heretofore been the Clinton administration’s position on the Communications Decency Act, which was signed by the president in February. The CDA, as most people reading this probably know, attempts to regulate content through criminal penalties for those who violate standards of decency (standards drawn so broadly that they might prohibit, for instance, David Sedaris’ “Diary” from last week) with “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary standards, sexual or excretory activities or organs.”
The Clinton administration’s support of the CDA–which it is now defending before the Supreme Court–has been a bit of a mystery. It turns out to have been a bit of an accident. Last year, when the CDA was first proposed by James Exon, the Democratic senator from Nebraska, the Clinton Justice Department frowned. In May 1995, then-acting Assistant Attorney General Kent Markus wrote to Sen. Patrick Leahy that among other problems, the proposal was an attempt to “impose criminal sanctions on the transmission of constitutionally protected speech.” Inside the White House, according to Clinton sources, Vice President Al Gore and members of his staff, who have general responsibility for Internet-related issues, tried to steer the administration away from supporting the act.
As the bill headed toward overwhelming passage in the Senate, however, political reality began to assert itself. With an election coming up, the last thing the Clintonites wanted was to get on the wrong side of a potentially explosive issue dealing with children and pornography. “No way are you going to get yourself in a position where the president isn’t willing to go as far as a Democratic senator in restricting child pornography on the Internet,” one senior administration official explained. Child pornography and obscenity are illegal anyway, but that was a fine point the administration wasn’t willing to risk elucidating on the verge of a campaign.
So, part of the explanation is cowardice in the face of potential demagoguery. Another part is that the CDA was folded into the telecommunications bill, an acre of legislation that reorganizes one-seventh of the nation’s economy. It was a bill in which the administration had many interests–the v-chip, competition among local telephone companies, and so on. The White House could not afford to antagonize Exon by opposing his pet provision. Those inside the administration who were troubled by the constitutional implications of the CDA rationalized their cop out by saying that the law was sure to be overturned anyway–as indeed it was, in a 3-0 decision that gave three Philadelphia judges a welcome opportunity to sound like Oliver Wendell Holmes.
Clintonites say the decision to appeal that ruling is essentially pro forma; the solicitor general rarely chooses not to not defend the constitutionality of a law the president has signed. The CDA was almost one of those rare occasions. In its Court of Appeals brief, the Justice Department stipulated that the so-called Comstock provision in the law, which restricts the dissemination of information about abortion, was unconstitutional and would not be enforced. Gore, in particular, wanted to avoid an appeal by finding a way to settle with the various plaintiffs in the suit. According to Clinton-campaign scholar Dick Morris, “the administration’s decision to take the bill to the Supreme Court was over Gore’s objections.” Morris says he had two discussions with Gore about whether there might be an alternative way to stop children from gaining access to inappropriate material on the Internet. “We couldn’t really find a technical way of doing it,” Morris says. Others in the White House believe it was Morris himself who prevailed against Gore and got the administration behind the act.
In any case, political logic prevailed. Officially, the decision was made by Clinton’s first solicitor general, Drew Days III. He had his own reasons for pursuing the case. In the early days of the administration, Days made a legally sound but politically disastrous decision to appeal the child-pornography conviction of a graduate student for having videotapes that showed teen-age models with their clothes on. The Supreme Court agreed with the brief Days filed in that case, Knox vs. U.S., but the Senate voted 100-0 to condemn his intervention, and Clinton promptly disavowed his own solicitor general in public. Days, who previously was thought to have a good shot at a seat on the Supreme Court, fell off the Clinton short-list. Soon after deciding to appeal the CDA, he returned to Yale Law School.
Days’ successor, Walter Dellinger, will argue the case before the court in March. Friends seem certain that the former constitutional-law professor at Duke personally opposes the CDA. But Dellinger, who is still acting solicitor general pending official nomination and confirmation by the Senate, wasn’t about to risk premature termination of his career. He wouldn’t comment. But privately, he may believe what many in the administration offer in defense of their indefensible position: that a resounding Supreme Court decision against them will do more to advance the cause of free expression than would leaving the Court of Appeals opinion unchallenged.
If that is the administration’s strategy, it is foolhardy. The Supreme Court might not cooperate in rejecting the administration’s public position and embracing its secret desire. Furthermore, it’s preposterous that a president re-elected on rhetoric about building a bridge to the 21st century hasn’t bothered to work out a minimally consistent position on the Internet. The basic problem, as I’ve argued before, is Clinton’s lack of respect for civil liberties, exacerbated in this instance by a lack of understanding beyond the vice president’s office of what is at stake in the development of the Internet. But a simple solution might be at hand. It can be expressed in four words I thought I’d never utter: Listen to Ira Magaziner.