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Citizens Internet Empowerment Coalition Trial Update No. 9
Pre-Trial Update - April 13, 1996 5:30 pm ET
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http://www.cdt.org/ciec/
ciec-info@cdt.org
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CIEC UPDATES intended for members of the Citizens Internet
Empowerment Coalition. CIEC Updates are written and edited by the
Center for Democracy and Technology (http://www.cdt.org). This
document may be reposted as long as it remains in total.
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** 40,000 Netizens Vs. U.S. Department of Justice. **
* The Fight To Save Free Speech Online *
Contents:
o Hearings Conclude in CDA Challenge - Decision Expected Soon
* A Newspaper Decency Act?
o How To Unsubscribe from this list
o More Information on CIEC and the Center for Democracy and Technology
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Quote of the Day: "You are asking us to re-write the statute, to put
words in the statute that aren't there. We want you
to tell us what words to put in"
-- Judge Doloris Sloviter, to DOJ lead counsel Tony Coppolino during a
series of
questions on the government's interpretation of the term "indecency"
HEARINGS CONCLUDE IN CDA CHALLENGE -- DECISION EXPECTED SOON
Hearings in the historic legal battle over the future of freedom of speech
on the Internet concluded Friday (5/10) with both sides presenting final
oral arguments before a three judge panel in a Philadelphia Federal Court.
A decision in the case is expected within the next month, after which
either side can appeal directly to the Supreme Court.
As expected, the Government lawyers argued that the court should read the
Communications Decency Act's (CDA) prohibition of "indecent" and "patently
offensive" materials online to apply only to hard-core, sexually explicit
material.
The Government asked the court to essentially create a new definition of
the term "indecent", designed specifically for the Internet. While DOJ
lead attorney Tony Coppolino stated that the government believes the term
"indecent" in the CDA should have the same meaning as used by the FCC ,
and in the Pacifica and Sable cases, Coppolino also repeatedly argued that
the term "indecent" under the CDA would not apply to serious works of
fiction, art, or other materials with social value. This argument is
inconsistent with every application of the "indecency" standard in past
court cases and regulatory proceedings before the FCC.
The Government summed up its case by arguing that the content regulations
imposed by the CDA, combined with parental control technologies, are
necessary in order to protect children from sexually explicit material on
the Internet. The Government argued that technology alone will not protect
children from sexually explicit material on the Internet. As DOJ lawyer
Jason Baron stated, the law must "put the burden on content providers to do
something" to prevent minors from accessing objectionable material online.
CIEC lead counsel Bruce Ennis urged the court to overturn the
Communications Decency Act on the grounds that the law is overly broad,
unconstitutionally vague, and effectively restricts all speech on the
Internet to that which is appropriate only for children. Ennis further
argued that the CDA's defenses to prosecution are not available to the vast
majority of speakers on the Net. While commercial content providers may be
able to utilize credit card age verification schemes, non-commercial
speakers, who comprise the majority of speakers on the Internet, have no
way of complying with the statue.
Ennis argued that the CDA is "substantially overboard", meaning that in
most circumstances there is simply no way for Internet users to comply with
the law. "Substantial over breadth", one of several standards the CIEC
has asked the court to consider in evaluating the constitutionality of the
CDA, requires that the court consider whether the law is overly broad in a
"substantial number" of its applications. In this case, Ennis argued that
the CDA can only be considered constitutional in one application:
commercial content providers who charge for their services. In every other
application, including posts to Usenet Newsgroups, IRC or other online chat
forums, electronic mail sent to public mailing lists, and non-commercial
web sites, the defenses to prosecution under the CDA are not available to
Internet users. As a result, non-commercial speakers on the Internet only
have one way to avoid potential liability under the CDA - self censorship.
As expected, the Judges adjourned the Hearing without reaching a decision,
but promised that a decision would be forthcoming. CDT will provide an
update as soon as a decision is reached (check http://www.cdt.org/ciec/)
for updates). A decision is expected before the end of May.
RECENT FBI 'NON-INVESTIGATION' OF COMPUSERVE BECOMES A MAJOR ISSUE
In what is perhaps the most interesting twist yet in this case, the recent
newspaper reports that the FBI was considering an investigation of
Compuserve for potential violations of the CDA were raised by CIEC lawyers
and Judge Dalzell. The reports were sparked by calls from the conservative
American Family Association, though the FBI and Justice Department have
since clarified that no investigation is underway.
During the presentation of Government attorney Jason Baron, Judge Dalzell
asked numerous questions about a recent letter from Assistant Attorney
General Keene to the Judge in a parallel CDA challenge in New York. In the
letter, Keene states that labeling content, registering a URL with a "URL
registry", and using content selection standards would be considered
"substantial evidence" that a defendant has complied with the defenses
under the CDA.
The Government's position that labeling content would only be considered
"substantial evidence" and not an outright defense to prosecution (as a
literal reading of the CDA suggests) raises serious questions about the
ability of any content provider to comply with the CDA, and adds further
weight to the CIEC arguments that the CDA is overly broad and
unconstitutionally restrictive.
THE NEWSPAPER DECENCY ACT?
In numerous, often pointed questions throughout the hearing, the Judges
pressed the government on whether the Internet is, as the CIEC and ACLU
cases argue, a unique communications technology distinct from traditional
broadcast mass media.
At one point Judge Dalzell, holding up a copy of the Philadelphia Inquirer,
noted that the previous day's issue contained a graphic image of a man
being shot on the front page above the fold. Dalzell said that his 10 year
old son had seen this picture while looking for the scores from the
previous day's Philadelphia Phillies game, Dalzell was concerned that the
Image was not appropriate for a young child to view. Dalzell asked
Coppolino if Congress were to pass a "Newspaper Decency Act" requiring that
Newspapers publish graphic images below the fold (so that minors do not
inadvertently see them) would the law be unconstitutional.
When Coppolino agreed that the hypothetical Newspaper Decency Act would
indeed be unconstitutional, Dalzell asked if Congress similarly has the
power to control the Internet. Coppolino argued that the Internet is much
more similar to broadcast mass media than print. Coppolino further argued
that the Internet is a pervasive medium, and that because the Internet can
deliver text, graphics, video and sound, and that because of this
convergence the Internet is much closer to the broadcasting model than it
is to the print medium.
The question of the nature of the Internet and its similarity to the print
or broadcast medium is a critical issue in this case. If the Judges find
that the Internet is substantially different from broadcast mass media,
they are more likely to rule that the broadcast-style content regulations
imposed by the CDA are unconstitutional. Although Judge Dalzell revealed
little about this position on this issue during the hearing, his
hypothetical questions were none-the-less encouraging.
WHAT IS INDECENT?
While the judges asked pointed questions of both sides, the most piercing
questions were reserved or DOJ lead attorney Tony Coppolino on the meaning
of the term "indecent".
Before Coppolino had finished the first sentence of his opening statement,
he was interrupted by Judge Doloris Sloviter, who asked, "What is the
Government's position about what the statute covers?". Sloviter was
referring to the Government's position on the meaing of the terms
"indecent" and "patently offensive", which is a critical question in the
case.
Coppolino responded that the government believes the terms refer to
sexually explicit material which lacks any serious literary, artistic,
social or scientific value. Judge Solviter responded by asking whether
excerpts from the Broadway play "Angles in America" (which deals with
AIDS), might be considered indecent in some jurisdictions. Coppolino
responded that "it is possible that some material with value might be
considered 'indecent'", and that "the application depends on the
communication and its context".
A skeptical Judge Stewart Dalzell wondered aloud whether the definition of
the term would be left up to the 94 US attorneys throughout the United
States, each with a potentially different interpretation, citing the
example of the controversial photographer Robert Maplethorp, whose exhibit
was celebrated in Philadelphia and subsequently picketed in Cincinnati Ohio
several years ago. Dalzell noted that a Web site at the University of
California Riverside has placed an explicit Maplethorp photograph online,
and asked Coppolino what advice he would give the University if he were
their lawyer.
Coppolino responded that he would not necessarily advise the University of
take the materials off-line, and suggested that they could further protect
themselves from liability under the CDA by providing the ability for
parents to block the site. Judge Sloviter appeared unconvinced with
Coppolino's explanation, stating, "Isn't there a chill factor [here]? This
is a criminal statute. People are entitled to know what they can be
prosecuted for. If people have to keep running to their lawyers, isn't
that a problem?"
NEXT STEPS, POINTERS TO OTHER INFORMATION
Due to the breadth of topics covered at Friday's hearing, only a small
portion of the issues raised are covered in this trial bulletin. The full
transcript form the hearing will be available at the CDT/CIEC web site in
the next few days. Please continue to visit http://www.cdt.org/ciec. An
announcement of the Courts decision will also be posted to this list and on
the CIEC web site as soon as it is available.
In addition to the text of the original CIEC complaint, transcripts of the
first 5 days of hearings, and other background information, several new
CIEC court filings, including our post trial brief, are available at the
CIEC web site.
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(2) How to Unsubscribe From This List
As CIEC members, you have been invited to join this list in order to
receive news updates and other information relevant to the CIEC challenge
to the Communications Decency Act. To subscribe, visit
http://www.cdt.org/ciec and join the Coalition.
If you ever want to remove yourself from this list, send email to
ciec-members-request@cdt.org
with 'unsubscribe ciec-members' in the SUBJECT LINE (w/o the 'quotes').
Leave the body of your message blank.
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(3) For More Information
For more information on the CIEC challenge, including the text of the
complaint and other relevant materials:
* World Wide Web -- http://www.cdt.org/ciec/
* General Information about CIEC -- ciec-info@cdt.org
* Copy of the Complaint -- ciec-docs@cdt.org
* Specific Questions Regarding the
Coalition, incuding Press Inquiries -- ciec@cdt.org
* General information about the
Center for Democracy and Technology -- info@cdt.org
-- end ciec-update.11 5/12/96