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Date: Tue, 5 Dec 1995
From: •••@••.••• (Ann Beeson)
To: Multiple recipients of list <•••@••.•••>
Subject: URGENT: Organizations to Oppose White and Hyde Censorship Proposals
X-To: •••@••.•••, •••@••.•••, •••@••.•••,
•••@••.•••
URGENT!
The ACLU and other civil liberties organizations will be delivering the
following letter to the House conferees tomorrow. If your organization is
opposed to **any** proposal to impose new government censorship regulations
on cyberspace, and you would like the sign the letter, please send a
message to Ann Beeson, ACLU, •••@••.•••, with your organization's name
and contact information. We need to hear from you by 9:30 a.m., Wednesday,
12/6/95, in order to include your organization on the letter.
We will post the final version of the letter, as delivered with signatures,
in our 12/6 issue of the ACLU Cyber-Liberties Update.
Thanks very much for fighting censorship in cyberspace.
AMERICAN CIVIL LIBERTIES UNION
-------------------------
December 6, 1995
Dear :
We understand that the House conferees on telecommunications
deregulation are scheduled to consider the fate of free speech and
prviacy in cyberspace.
The American Civil Liberties Union urges you reject all
proposals to impose new government censorship regulations on
cyberspace and online communications.
When the Senate passed telecommunications deregulation
legislation, it grafted onto the bill the Exon amendment that would
establish regulatory control over the content of speech in
cyberspace, criminalize making available so-called "indecent"
content to persons under 18, and impose other speech crimes on
cyberspace users. This provoked a storm of criticism from many
quarters. The Speaker, for example, called the Exon amendment
"clearly a violation of free speech and it's a violation of the
right of adults to communicate with each other." And
Representative Cox was concerned about the Senate passing a bill
that "empowers the FCC and the criminal justice system to develop
new means of government control over the content and delivery of
information over the Internet."
Ironically, the House conferees on the bill now confront the
Hyde and White proposals, each of which would also violate free
speech, violate the rights of adults to communicate with each
other, and establish new government control over what we say and
see in the online world. The Hyde proposal would even do so more
than the Exon amendment -- yet it is being seriously considered.
Although the ACLU has not yet taken a position on the overall
telecommunications bill, the damage to privacy and free speech from
both proposals is so severe we will oppose any bill that includes
the Hyde, Exon, Grassley or White proposals.
The Hyde proposal combines the worst features of the Senate's
Exon amendment with still other schemes to regulate content. While
the White proposal differs from Hyde language in some potentially
important ways, and is less onerous, it remains fundamentally
flawed. The White proposal too would violate the First Amendment
and privacy rights of adults to communicate freely in the online
environment. And it too would impose a complex regulatory scheme
over what people communicate in the Internet.
The Hyde proposal, even more than the Exon amendment, is
unconstitutional because it takes indecency, a type of speech
protected by the First Amendment, and tries to regulate it in a way
that violates what the Supreme Court has said must be the
touchstone for regulating protected speech. The Hyde proposal
fails to use the constitutionally required "least restrictive
means" to obtain its goals. It also fails to take into account the
particular characteristics of interactive media in the online
environment, rendering its attempt to prohibit obscenity
constitutionally infirm. See, e.g., Sable Communications v. FCC,
492 U.S. 115 (1989); Pacifica Foundation v. FCC, 438 U.S. 726
(1978).
The Hyde proposal, even more than the Exon amendment, is bad
public policy because it will effectively reduce voluntary
communications among consenting adults to those appropriate only
for children. Much of what consenting adults -- even married
consenting adults -- prize about some of their communications could
well be deemed by outsiders as "indecent" if addressed to a child.
Online bulletin boards and chat groups provide a social
network that brings together consenting adults with shared
interests in ways that were not previously possible, including the
possibility for communications on a many-to-many basis instead of
one-to-one. Because minors could gain access to these spaces, the
Hyde proposal would require adults to censor all these messages to
ensure that they are not prosecuted for "indecent" speech.
The Hyde proposal is also bad public policy because it
subjects all Americans to the most narrow of community standards
found in the most socially conservative of locations. Even those
who respect the social mores of such locations would not insist on
imposing those mores on the millions of Americans who have chosen
to live elsewhere.
The Hyde proposal is also bad public policy because it stunts
the growth of a promising, and potentially democratizing, new
communications medium -- thereby jeopardizing millions of new jobs
-- and would thwart the growth of the marketplace of ideas.
The White proposal is less onerous and intrusive than the Hyde
(or Exon or Grassley) proposals, but the White language would still
violate the free speech and privacy rights of those who communicate
online.
Like Hyde, the White proposal would effectively subject all
communications to the community standards of the most conservative
location with the same unfair results.
The White proposal criminalizes communicating to anyone under
18 any content that is deemed "harmful to minors." Such a standard
would be created at the federal level for the first time, so that
the White proposal creates an entirely new federal category of
speech crimes. The White proposal goes even further to prohibit
not merely direct communications but the online "display" of such
materials. The Supreme Court, which has never ruled on a harmful
to minors "display" statute, noted that such laws "raise
substantial constitutional questions." American Booksellers
Association v. Va., 484 U.S. 383, 394 (1988).
Like Hyde, this White proposal would still have a severe
adverse impact on communications between adults and would,
especially given the inadequacy of the defenses, inevitably coerce
content and access providers to infantalize their programming so
that they could be sure they were not displaying something deemed
harmful to minors.
The ACLU strongly believes that no new speech crimes are
justified, and that interests such as parental concerns are
adequately addressed without such governmental intervention. But
if such crimes were to be created, they should be narrowly crafted.
In the words of leaders and communications scholars from CATO,
Heritage, American Enterprise Institute, Progress & Freedom, The
Manhattan Institute, Citizens for a Sound Economy and Americans for
Tax Reform in their November 7th letter, such a law should "clearly
identify proscribed content; target and punish active wrongdoers,
not passive actors such as access and service providers; [and] when
in doubt, favor the market over governmental intervention . . ."
Unfortunately, even the White proposal (which is less sweeping that
Hyde, Exon or Grassley) does not in our view meet this test.
The White proposal includes speech crimes that are so
overreaching that the proposal has to include complex defenses to
limit their effect. Obviously, providing some defense (as in
White) is less harmful than providing no defense (like Hyde) to an
overreaching criminal prohibition. But surely criminal law should
be drafted so that it does not overreach in the first place.
Moreover, the defenses provided by White are too vaguely worded and
too limited to undo the harm of its criminal prohibitions.
Although corporations with large legal departments may fare
better, the small independent content access providers will be
effectively frozen out of the defenses, with the chilling effect on
their own speech for fear of offending the vague prohibitions. The
same is true for the individual user who communicates in chat rooms
and on bulletins. Thus, White (as well as Hyde and Exon) will harm
the very people who have made cyberspace the incredibly rich source
of information it is today.
Thus both Hyde and White proposals create the very danger that
these libertarian and conservative leaders warned against:
"Intrusive content regulation of cyber-speech will unduly chill
free expression and needlessly undermine the vitality of the
on-line/Internet market at the very time that the marketplace is
addressing the concerns that motivate supporters of the Exon
amendment."
Fundamentally, the ACLU urges you to recognize that there is
no real-world problem with online communications, or at least no
real problem warranting governmental intervention. To the extent
that people are concerned about what material is accessed on their
computer, the technology exists today (with more arriving monthly)
that enables parents, for example, to prevent their children from
accessing Internet sites with sexual content.
Online service and access providers are also eager to use
available mechanisms to curb access when requested by their
subscriber. Frequently all it takes is a phone call. Software
also exists today that enables parents to have their computer shut
down if their child gets an unacceptable question (like "Are your
parents home?," "What's your name?" or "Where do you live?").
Again, these free or inexpensive protections exist today and can be
used at the parent's option.
Telecommunications deregulation legislation should not create
a new regulatory scheme to control speech in cyberspace. The ACLU
urges the conferees on the telecommunications deregulation
legislation to reject the Hyde, Grassley, Exon and White proposals,
and any other provision that would restrict online communications
or create new speech crimes or otherwise invade the privacy of
Americans online.
Sincerely,
Laura W. Murphy
Director, Washington National Office
Donald Haines
Legislative Counsel
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Posted by Richard K. Moore <•••@••.•••>
Wexford, Ireland (USA citizen)
Editor: The Cyberjournal (@CPSR.ORG)
See the CyberLib at:
http://www.internet-eireann.ie/cyberlib
See Cyber-Rights library:
http://www.cpsr.org/cpsr/nii/cyber-rights/
You are encouraged to forward and cross-post messages and online materials
for non-commercial use, provided they are copied in their entirety, with
all headers, signatures, etc., intact.
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