Date: Fri, 17 May 1996 13:39:12 -0400 (EDT) From: ptownson@massis.lcs.mit.edu (Patrick A. Townson) Subject: Internet/ACLU Litigation Update Here are some recent updates in the ongoing litigation regards the Communications Decency Act. Three reports received during this past week are attached. PAT Date: Fri, 17 May 1996 00:04:26 -0400 From: Monty Solomon Subject: ACLU v. RENO: TRIAL UPDATE Reply-To: monty@roscom.COM Excerpt from 05-08-96 ACLU Newsfeed *ACLU v. RENO: TRIAL UPDATE* *Closing Arguments Scheduled for Friday* *In Landmark Challenge to Internet Censorship Law* Wednesday, May 8, 1996 Wrapping up five days of courtroom testimony before a three-judge panel in federal district court in Philadelphia, the ACLU will present closing arguments this Friday, May 10, in the trial that will determine the future of free speech in cyberspace. Plaintiffs and defendants will have two hours each to make their case and answer questions from the judges. The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge provisions of the Communications Decency Act that criminalize making available to minors "indecent" or "patently offensive" speech. During the five scheduled days of trial, which took place during March and April, the court heard from 15 witnesses for the plaintiffs, who testified about the technological and sociological nature of the Internet and how the censorship law would effectively ban most "indecent" speech in cyberspace. Lawyers for the Department of Justice presented two witnesses in support of its case. "The government's case, if anything, has highlighted further the intolerable vagueness of the Communications Decency Act," said Christopher Hansen, who will present oral arguments for the ACLU on Friday. "The government witnesses' responses to the Court's questions illustrated just how freewheeling the subjective, discretionary judgments of government prosecutors would be under the CDA." Under questioning from the judges, both of the government witnesses testified that they understood "indecent" or "patently offensive" to include such politically inspired expressions as "F--- the CDA," and such relatively tame partial nudes as the Demi Moore photo on the cover of Vanity Fair. Plaintiff and defendant lawyers will appear before the court beginning at 9:30 a.m. on Friday morning. The ACLU and ALA coalitions will divide the two hours: Christopher Hansen of the ACLU will appear before the judges first, and Bruce Ennis for the ALA coalition will appear next. Much of the presentation is expected to be taken up with responding to questions from the judges. At the discretion of the court, and depending on the amount of time used in arguments, plaintiffs may be given an opportunity for rebuttal following the government's oral arguments. The Brief: In its post-trial brief filed last week, the ACLU called the Communications Decency Act "the most restrictive speech ban in any medium," and said that it would "radically restrict and restructure cyberspace." The ACLU's brief contends that the government, in an attempt to defend the law, is recasting the ban on "indecent" and "patently offensive" speech as a ban on "pornography." In doing so, the ACLU argued, the government is trying to narrow the CDA to a statute that might be more constitutionally defensible. But, the ACLU brief said, online pornography is already subject to criminal prosecution under existing obscenity law, and the "indecency" and "patently offensive" terms do not contain exceptions for material with "serious value and without prurient appeal." The ACLU also asserts in its brief that the government has not met its burden of showing that the CDA is the least restrictive means available of protecting minors, and that it has a "compelling state interest" in criminalizing all "indecent" or "patently offensive" Internet communications that might be accessed by minors. Despite the heavy burden of proof necessary where free speech is infringed, the government presented no evidence at the hearing as to why it had a "compelling interest" in protecting minors from so-called indecency online. In contrast, ACLU plaintiffs presented substantial evidence that the categories of "indecent" and "patently offensive" speech include a vast quantity of material that is valuable to minors, especially older minors. ACLU plaintiffs Critical Path AIDS Project, Wildcat Press and Stop Prisoner Rape and ALA witness Robert Croneberger of the Carnegie Library all testified about the value to minors of their online information on safer sex, gay and lesbian issues, prison rape, and other frank discussions relating to sex. In fact, the government's only witness to address this point, Special Agent Howard Schmidt, testified that he believed his own son, by the time he is 17, "will have a sufficient basis of input from [me] and from his life experiences that he would not be harmed even if he were exposed to even exploitative sexually explicit material online." The government's argument that the CDA satisfies the "least restrictive means" test is also unpersuasive, the ACLU brief said. The defense that online speakers can keep minors from viewing their communications by using a verified credit card or access code ignores the massive economic costs involved. It would also be technologically impossible, as the government's witness Dan Olsen conceded, to identify and screen out minors in many areas of cyberspace, such as Usenet newsgroups. Olsen's own proposal for self-labeling or "tagging" so-called indecent material is equally burdensome and unworkable, the ACLU brief asserted. Using his "-L18" system, Olsen testified that the best way to comply with the new censorship law would be to block all possibly "indecent" words and images until "questionable" material could be reviewed and tagged for adult consumption. This process could take weeks or months, he told the court. "Dr. Olsen's proposal betrays an insensitivity to free speech that is simply staggering," said Marjorie Heins of the ACLU, who also appeared before the court in ACLU v. Reno. Forced labeling also violates the First Amendment, Heins said, because it compels speakers to say things they don't want to say, and inhibits the listener's right to access constitutionally protected material anonymously. In contrast, parental control mechanisms such as SurfWatch, Net Nanny and Cyberpatrol are already commercially available, and others are being developed, that would be more effective than any of the government's proposals. These user-based technologies enable parents to block whatever content they feel is inappropriate -- whether it be sexual, violent or religious in nature. Olsen's tagging scheme, on the other hand, because it relies on self-censorship, would not block material originating from foreign sites not subject to the CDA, and may not be feasible on the large commercial online services such as America Online, Compuserve and Prodigy. "Ultimately," said the ACLU's Hansen, "we hope the Court will recognize that the Internet is a uniquely democratic medium of expression that allows all of us -- rich or poor, powerful or weak -- to speak widely and to read widely. This statute has the potential to quash a medium with a vast potential to foster communication, promote democracy and make the marketplace of ideas' a reality in the 21st century." The judges are expected to issue a ruling on the Plaintiff's preliminary injunction motion this spring or summer. Under expedited provisions, any appeal on rulings regarding the new censorship law will be made directly to the U.S. Supreme Court. Lawyers for the ACLU appearing before the judges are Christopher Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of Pennsylvania. NOTE: Text of the ACLU's closing brief in ACLU v. Reno can be downloaded at the ACLU web page (http://www.aclu.org) or at ACLU's Constitution Hall on America Online (keyword ACLU). ----------------------- Excerpt from 05-13-96 ACLU Newsfeed *ACLU V. Reno: Trial Update* At Closing Arguments, ACLU Calls on Court To Protect Free Speech In Cyberspace PHILADELPHIA -- A three-judge panel heard closing arguments today regarding a law that would criminalize free speech in cyberspace. Plaintiffs and defendants each had approximately two hours to make their case and answer questions from the judges. Much of the government's argument today hinged on a proposal requiring Internet users to identify so-called indecent or patently offensive words or images with an electronic "tag." But by the end of the day, government lawyers conceded -- under pointed questioning from the judges -- that it would be impossible to implement this scheme given the technology currently available. That concession alone, the ACLU said, could justify granting plaintiff's motion for a preliminary injunction against the censorship provisions of the Communications Decency Act, which criminalizes making available to minors "indecent" or "patently offensive" speech online. "It's about time that the government conceded what the cyberspace community has known all along -- that this is an unworkable law," said Christopher Hansen, who presented oral arguments for the ACLU. "And even if it were feasible, it is constitutionally unthinkable to give the government the power to restrict valuable speech, or to compel people to pejoratively label their speech." Government lawyers also acknowledged today that the law criminalizes speech of value -- e.g., artistic, literary or medical information -- not just "pornography" or other prurient words or images that aren't covered under existing obscenity laws. In fact, as Hansen pointed out to the Court, Congress made sure that the Communications Decency Act applied specifically to libraries and educational institutions, and rejected several opportunities to make any exceptions for valuable speech. Such an omission might have been a "legislative craftsmanship problem," suggested Anthony Coppolino, one of the lawyers appearing for the Department of Justice. But that argument was met with skepticism from the judges. "The government is basically saying trust me' when it comes to determining what kind of online words and images will be considered indecent' or patently offensive,'" said Marjorie Heins, a lawyer on the ACLU v. Reno team. "But they were not able to offer a coherent explanation as to what those terms mean." The risk involved to individuals in making such a determination is especially grave when criminal penalties are involved, the ACLU emphasized. The CDA provides for penalties of up to two years in jail and $250,000 in fines. Addressing this issue, Judge Stewart Dalzell asked the government how it would view an individual such as ACLU plaintiff Kiyoshi Kuromiya, who has vowed to maintain his website no matter what. Kuromiya has testified that his website, the Critical Path AIDS Project, provides "lifesaving" information on safer sex practices -- some of it necessary sexually explicit -- aimed at reaching teens around the world. Justice Department lawyer Jason Baron responded that if Mr. Kuromiya didn't want to comply, "he can take the consequences." Overall, the ACLU said, plaintiffs succeeded in making three essential points to the court: -- The Communications Decency Act is a criminal statute with criminal penalties. -- The law is aimed specifically at speech that is constitutionally protected. -- The government's tagging scheme would force every American to censor him/herself to avoid risk of criminal prosecution. Plaintiffs also reminded the Court that the censorship law applies not only to websites, but to newsgroups, chat rooms, mail exploders, and other fora that constitute a vital part of the Internet. The ACLU has asserted in its brief -- and the government largely conceded today -- that various schemes for self-censorship would be unworkable in these environments as well. At the conclusion of today's proceedings, Chief Judge Dolores K. Sloviter said that the Court would issue a ruling "in due course." Under expedited provisions, any appeal on rulings regarding the new censorship law will be made directly to the U.S. Supreme Court. ACLU v. Reno was filed the day the Communications Decency Act was signed into law. A second case, brought by the American Library Association, was consolidated with ACLU v. Reno on February 26, 1996. Lawyers for the ACLU appearing before the judges are Christopher Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of Pennsylvania. Attorney Bruce J. Ennis presented oral arguments today on behalf of the ALA/CIEC coalition. Date: Mon, 13 May 1996 08:38:32 -0400 From: Dave Farber Subject: IP: ACLU v. Reno: "the best bench we could hope for" by Craig A. Johnson American Reporter Correspondent Washington, D.C. 'AS GOOD A BENCH AS WE CAN HOPE FOR' by Craig A. Johnson American Reporter Correspondent PHILADELPHIA -- The buzz was loud and the message clear as a panel of judges in the ACLU v. Reno case heard closing arguments in Philadelphia and then adjourned to consider the first of two major constitutional challenges to the Communications Decency Act (CDA) that critics say threatens free speech on the world-wide Internet. The second case, Shea v. Reno, is set for final arguments on June 3 in Federal court in Manhattan. Both cases are being heard by three- judge panels and are likely to be consolidated if they reach the Supreme Court under an expedited review process outlined in the law. Both cases were filed immediately after President Clinton signed the huge telecommunications reform act, which contains the CDA, on February 8. The ACLU case was the first to end. As government lawyers headed off into the foggy Philadelphia afternoon, the words of Judge Stewart Dalzell in Federal court here yesterday still rang in the minds of courtroom observers: In order to preserve the Internet "as the most democratic medium that the human mind has come up with yet, a chilling effect is something we have to consider" as the panel rules on the CDA. "How can we, as a matter of judicial responsibility, sustain against a chill," Judge Dolores K. Sloviter, chief judge of the Fourth Circuit Court of Appeals asked government counsel, in the absence of technology which "would not block appropriate [First Amendment protected] material for adults? "Why doesn't the government concede that a preliminary injunction would be appropriate," she queried, her exasperation evident. The central question of how to "find out whether one is an adult" was left unanswered throughout the whole case, Sloviter asserted. She charged that the government was asking the panel "to sustain the statute based on the defenses," which are not validated by current technical realities. "Until it exists," Judge Sloviter exclaimed, "it isn't working. Until it works, we don't know how it will work." Judge Dalzell agreed, stating, "The evidence is quite clear that ... that there is no technical way to screen for age based on available technology" which non-commercial providers can avail themselves of. These were the most compelling signs yet that the panel may be leaning favorably toward the plaintiffs' request for an injunction. "This is as good a bench as we can hope for in this situation," ACLU lead attorney Christopher Hansen told reporters after adjournment. The day's arguments covered the entire waterfront of issues from the facial challenges to the constitutionality of the Communications Decency Act (CDA) to an animated debate on "defenses" and "safe harbors" to the disclosure of the recent FBI's "review" of Compuserve at the behest of the right-wing American Family Association (AFA). Hansen and American Library Association/Citizens' Internet Empowerment Coalition (ALA/CIEC) counsel Bruce J. Ennis hammered home point after point until finally, it seemed, the government's entire house of cards had collapsed onto its lap. The plaintiffs' attorneys effectively eradicated whatever defenses existed with respect to both the "indecency" standard's ability to pass Constitutional muster on its face, as well as the Act's attempt to tack a broadcast standard originally mandated by the Federal Communications Commission (FCC) onto the Internet. Hansen forcefully got across the facial argument that the statute is an "attempt to prevent adults from having information that they are constitutionally entitled to." "All speech," he declared, "would be brought down to a level acceptable to minors." Hansen stressed again and again that the act would "prohibit speech that has serious value," notwithstanding the government's contentions to the contrary. In his closing remarks, Hansen inveighed further against the criminalization of speech that would result from the law. "Libraries and institutions of higher learning" would be thrown into a witch-hunt atmosphere, he charged. Speaking to reporters after adjournment, Hansen amplified on this, saying that the CDA was being used by right-wing groups such as Enough is Enough to "go after libraries and colleges, which are not what we normally think of as great smut-peddlers." Religious Right activists recently tried to ban books online at the University of California - Riverside, a campus located in one of the most conservative regions of the state. Hansen also decried the government's argument that, with technological development, "it is possible to label speech as decent or indecent." The "notion that Government would impose on all of us, before we speak" a criteria as to whether our speech was decent or indecent, he declared, raises a "serious Constitutional problem," he said. ALA/CIEC counsel Ennis argued in closing that "there is nothing in the pipeline" that will technically work to identify adults in online newsgroups, chat rooms, and listservs or mail exploders. Second, he said, the government admitted that tagging is not effective, and even if it were, it still would not constitute a "safe harbor." Furthermore, "it would violate the doctrine against compelled speech," which states that "attaching a pejorative label to one's own speech" is something that someone "should never be required to do." There is no reason to assume, that Congress had any intent to require self-labelling, he maintained. In fact, Congress specifically rejected self-labelling with respect to broadcast speakers. The Internet, Hansen urged throughout yesterday's argument, was a specific medium, which could not tolerate having rules applied to it which were crafted in the past for other media. Rather, it is a "democratizing, many-to-many" medium. One of its real effects, he said is that it "is making us all speakers and listeners." The panel of judges seemed to concur that the CDA was based on broadcast laws. Judge Dalzell stated that Congress had "reached into" past judicial decisions applying to broadcast media and "begat the Communications Decency Act." But, if access to "indecent" content is found not to be "pervasive," which is the primary characteristic of broadcast media, then how could they sustain this statute in light of the unique characteristics of the Internet, Judge Dalzell queried? This is particularly relevant for chat rooms, news groups, and list servers or mail exploders. Plaintiffs' council Ennis argued that "tagging and registering cannot possibly protect minors" in these fora unless there is ample parental supervision and control. If that is present, Ennis said, then we "don't need the law." Judge Sloviter took the questioning one step further, declaring that to require governmental actions which may militate against the wishes of parents was "a serious Constitutional question." She asked: "What is the Government's interest in shielding 15-year olds from material that they want to see and the parents don't care" whether they see? Sloviter went on to grill Government counsel on the intent of Congress to "help the parents." How, she asked, could this be done if the Court "found that the evidence does not support the proposition that there is a significant probability of inadvertently chancing ..." upon the material without "a lot of clicks or a warning?" "What would remain of the government's compelling interest," she asked. The questions largely went unanswered by government lawyers, though US Atty. Jason R. Baron said that "Congress could draw a bright line" which would would in fact criminalize some speech with redeeming value. The Government, he said, may prevent a 14-year old's right to read Henry Miller's Tropic of Cancer online. Similarly, excerpts from a Broadway play on AIDS may fall within the statute's boundaries. This did not sit well with the judges as they repeatedly emphasized that the Congressional Conference Committee statement that material "with no intent to offend" should not be swept under the law. At one point, in a direct parallel with the questions at issue in Shea v. Reno, Judge Dalzell, observing that recent issues of the Philadelphia Inquirer and the New York Times had pictures and articles that many people would find "patently offensive," asked government counsel if he would advocate a "newspaper decency act." Dalzell explained to a befuddled counsel that Congress clearly did not have the power to write a "newspaper decency act." "What is it about the Internet media that makes it a completely different ball game," he asked. No persuasive answer was uttered by government counsel. The judges returned several times to the government's contention that effective technology for screening, tagging, and blocking would soon be available. Sloviter was unconvinced. "After five days of testimony," she said, "all we got was hypotheticals." The tagging scheme introduced by one of the government's witnesses, Sloviter suggested, "was the product of [his] creative imagination," and "thought up ... after the government hired him as a witness." In the end the decisive issues were raised in sharp relief by all three judges. If the intent of Congress was to help parents prevent their children from viewing objectionable content, and the technology that is available cannot do that, what good is a CDA? If available technology cannot find a solution for authenticating adults and children, then doesn't the rationale for the CDA collapse? And, if the CDA, with its labelling scheme of "indecency" is overbroad and covers speech which has value, then isn't it unconstitutional on its face? Despite all the roundabout arguments and twists and turns, the government never effectively answered any of these threshold questions. (Craig Johnson is a telecommunications analyst in Washington.) * * * The American Reporter "The Internet Daily Newspaper" Copyright 1996 Joe Shea, The American Reporter All Rights Reserved The American Reporter is published daily at 1812 Ivar Ave., No. 5, Hollywood, CA 90028 Tel. (213)467-0616, by members of the Society of Professional Journalists (SPJ) Internet discussion list. It has no affiliation with the SPJ. Articles may be submitted by email to joeshea@netcom.com. Subscriptions: Reader: $10.00 per month ($100 per year) and $.01 per word to republish stories, or Professional: $125.00 per week for the re-use of all American Reporter stories. We are reporter-owned. URL: http://www.newshare.com/Reporter/today.html Archives: http://www.newshare.com/Reporter/archives/ For more info on AR: http://oz.net/~susanh/arbook.html ------------------------ [TELECOM Digest Editor's Note: So which way is this whole thing going to go? I'll refrain from adding any editorial content of my own this time around since most of you know my feelings anyway. PAT]