FINAL VERSION
Delivered by Hand
December 5, 1995
Dear House Conferee:
The undersigned civil liberties and public interest groups, regional
Internet service providers, and commercial producers of entertainment,
information and journalism, urge you to reject *all* proposals to impose
new government censorship regulations on cyberspace and online
communications.
We endorse the position taken by the American Civil Liberties Union in the
attached letter and urge you to reject the Hyde, Exon, Grassley and White
proposals -- and any other proposals -- to impose a censorship regime on
communications in the online environment.
American Booksellers Foundation for Free Expression
American Communication Association
Art and Technology Society
Association of Alternative Newsweeklies
Boston Coalition for Freedom of Expression
Coalition for Academic Freedom of Expression, Carnegie Mellon University
Council of Literary Magazines and Presses
Datalytics, Inc.
Digital Queers
Electronic Privacy Information Center
Feminists for Free Expression
Filz and Associates, Inc.
HotWired Magazine
Human Rights Watch
Justice on Campus Project
Internet Users Consortium
LitNet (The Literary Network)
Lumberyard BBS Community Network
MIT Student Association for Freedom of Expression
Media Democracy in Action Consortium (MeDIA Consortium)
National Campaign for Freedom of Expression
National Coalition Against Censorship
National Writers Union
NorthWest Feminist Anti-Censorship Taskforce
Oregon Coast Rural Information Service Cooperative
Pacific Online Access
Public Access Networks Corp. (Panix)
The Society for Human Sexuality, University of Washington
Wired Magazine
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AMERICAN CIVIL LIBERTIES UNION
Subject: Cyberspace Censorship and the Hyde and White Proposals to the
House Conferees on Telecommunications Deregulation, S. 652 and H.R. 1555
Dear House Conferee:
We understand that the House conferees on telecommunications deregulation
(S. 652 and the amendments made by H.R. 1555) are scheduled to consider the
fate of free speech and privacy in cyberspace.
The American Civil Liberties Union urges you to reject all proposals to
impose new government censorship regulations on cyberspace and online
communications.
>From the Exon Amendment to Now
When the Senate passed its telecommunications deregulation legislation, it
grafted onto the bill an amendment by Senator Exon 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. We enclose a highly respected report from the CATO
Institute as an example.
The Speaker himself was widely praised for saying that the Exon amendment
was "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 proposals
presented by Representatives Hyde and White, 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 do so even more than does the Exon
amendment -- yet Hyde it is being seriously considered.
In addition, Senator Grassley has circulated a proposal that, like
Hyde,takes many of the worst features of the Exon amendment, removes
various defenses (which in Exon were vague and limited), and makes the
Department of Justice (instead of the FCC) in effect the regulatory agency
for speech in cyberspace.
Although the ACLU has not yet taken a position on the overall
telecommunications bill, the damage to privacy and free speech from all of
these proposals is so severe we will oppose any final bill that includes
the Hyde, Exon, Grassley or even White proposals.
The Hyde Proposal
Representative Hyde has circulated a proposal that would combine the worst
features of the Senate's Exon amendment with still other schemes to impose
a complex regulatory system on cyberspace information content and
transmission.
The Hyde proposal 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).
Moreover, the Hyde proposal is bad public policy because it will in effect
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 limiting of locations. Even those who have chosen to adopt 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 White Proposal
While the White proposal differs from the 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 on what people communicate in the
Internet.
The White proposal criminalizes the 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 the mere online "display" of such
materials. The
Supreme Court, which has never finally ruled on a harmful to minors
"display" statute, noted that such laws "raise substantial constitutional
questions." American Booksellers Association v. Virginia, 484 U.S. 383,
394 (1988).
Like Hyde, the White proposal would effectively subject all communications
to the community standards of the most socially limited location with the
same unfair results.
Like Hyde, this White proposal would still have a severe adverse impact on
communications between adults and would inevitably coerce content and
access providers to infantalize their programming so that they could be
sure they would not go to prison for "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 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 is less harmful than providing no defense to an
overreaching criminal prohibition (the situation with Hyde). 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 and access providers will be effectively frozen
out of the defenses, with a profound chilling effect on their own speech
for fear of offending the vague prohibitions and being sent to prison. 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."
No Justification for New Federal Laws
Many people worry that their computers will somehow begin projecting
offensive (and unbidden) images at them. They do not understand that the
nature of online communications requires that the user seek out material by
use of descriptors and identifiers. To the extent that people are concerned
about what material is sought out on their computer, the technology exists
today (with more arriving monthly) that, for example, enables parents 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. There is simply no need for new federal criminal law
to address these concerns, especially when such a law would also interfere
with the freedom of adults to communicate with each other.
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, create new speech crimes or otherwise
invade
the privacy of Americans online.
We enclose an additional courtesy copy of this letter.
Sincerely,
Laura W. Murphy
Director
Washington National Office
Donald Haines
Legislative Counsel
Enclosures:
New Age Comstockery: Exon vs. the Internet, Robert Corn-Revere, CATO
Institute Policy Analysis No. 232 (June 28, 1995)
Courtesy copy of this letter
