roundtable: URGENT: Organizations to Oppose White and Hyde Censorship Proposals

roundtable: URGENT: Organizations to Oppose White and Hyde Censorship Proposals

URGENT: Organizations to Oppose White and Hyde Censorship Proposals

Ann Beeson (beeson@aclu.org)
Tue, 5 Dec 1995 19:54:15 -0500 

Date: Tue, 5 Dec 1995 19:54:15 -0500
Message-Id: <199512060054.TAA08695@pipe1.nyc.pipeline.com>
To: stop314@panix.com, roundtable@cni.org, fight-censorship+@andrew.cmu.edu,
Subject: URGENT:  Organizations to Oppose White and Hyde Censorship Proposals
From: beeson@aclu.org (Ann Beeson)


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, beeson@aclu.org, 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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