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LGBT Filtering Victory!Yesterday we won a great settlement of a lawsuit against two Tennessee school districts. Before, public schools in Nashville and Knoxville had blocked access to all Web sites that presented positive information about lesbian, gay, bisexual and transgender people. Yet they allowed access to Web sites urging individuals to attempt to change their sexual orientation or gender identity (a practice the American Psychological Association recently denounced). Blocking access to just one side of a debate is called viewpoint discrimination – the government cannot favor one side of the debate over another – and it violates the Constitution. Yesterday a federal court approved a settlement binding the schools to never again block access to the favorable sites and agreeing that, if the schools violate the settlement, the court will take up the lawsuit again. Students and faculty were understandably upset by Nashville and Knoxville's discriminatory practice, which they protested to school officials for many months before finally resorting to contacting the ACLU of Tennessee. When the ACLU and the Tennessee affiliate investigated, it quickly became apparent that about 80 percent of Tennessee school districts were using the same Internet filtering software as Nashville and Knoxville, strongly suggesting that all of these schools were blocking access to the LGBT-supportive websites. After Nashville and Knoxville ignored written requests from the ACLU that they change their policy, we sued the school districts on behalf of a courageous group of students and a school librarian who decided to take a public stand. One of those students, Bryanna Shelton, shared her thoughts when the case was first filed in this video. The school districts hastily backed down and stopped blocking the educational Web sites. And in a very heartening move, all of the other school districts using the same filtering software appear to have changed their blocking practices as well. Some of the press coverage of the settlement quotes a school official as saying that "the lawsuit is dismissed with prejudice meaning it can never be brought again. It's over." That's not the case. The court's order specifically provides that, if the schools violate the agreement and start blocking the websites again without adequate justification, the court will take up the case again. The settlement also obligates the school districts to inform the ACLU of Tennessee if it starting blocking the websites. The ACLU intends to make sure that the schools do not resume their unconstitutional filtering practice.
Everywhere You Want to Be, and Everywhere You Once Were(Originally posted on Daily Kos.) We recently submitted a brief (PDF) to the 3rd Circuit Court of Appeals in a case about the legal limits of the government using people's cell phones to monitor their whereabouts, a.k.a. "cell phone tracking." The case is about what requirements must be met in order for the governmentto obtain a record of someone's past movements from the telephone company. The government argues (PDF) that it is entitled to this information whenever it shows the information is "relevant and material to an ongoing criminal investigation." The ACLU and our coalition partners the Electronic Frontier Foundation, the Center for Democracy & Technology and the ACLU of Pennsylvania argue that judges should be free to require the government to show probable cause, which we believe is required by the Fourth Amendment. If you're like most people, you're probably not aware that your cell phone can be used to track your movements. It can. If your phone is fairly new, the odds are it has a GPS chip inside. The same technology that allows car navigation systems to know where your car is can be used to track your movements through your cell phone. But even if your phone doesn't have a GPS chip, it still has to connect to the cell phone network somehow. It transmits to the nearest cell network tower and, because the location of those towers is known, it's possible to approximate the location of you and your phone. If you carry your phone with you, then you can be tracked. Your phone can be used to map your movements in real time as you move around. Depending on how long your phone company retains location information, it may also be possible for the government to obtain records from your phone company showing where you've been over the past weeks, months, and possibly even years. The ACLU believes that people have a reasonable expectation of privacy in their movements, and that the Fourth Amendment requires the government to get a warrant before obtaining this sort of tracking information. Unfortunately, the government disagrees. In court papers filed by the Obama Justice Department, the government argued that "there is no reasonable expectation of privacy in such information, and, accordingly, no Fourth Amendment-protected privacy interest." The government made a similar argument (PDF) back when President Bush was in charge, albeit more bluntly: "One who does not wish to disclose his movements to the government need not use a cellular telephone." The ACLU is fighting hard to ensure that carrying a cell phone doesn't mean sacrificing your privacy. In addition to this brief, we have also filed a lawsuit asking a federal court to require the Justice Department to disclose records revealing the full extent of its warrantless cell phone tracking. With over 260 million people owning cell phones (or similar devices), this is a privacy issue that affects us all.
Don't Restrict Adults to Protect Kids(Originally posted on The Agonist.) There are few cases addressing whether libraries may block patrons’ access to portions of the Internet. An ACLU of Washington case that will be before the Washington State Supreme Court this spring raises this issue, and is a case to watch. We recently filed our brief in the case, and just received word that the Court will hear argument on June 23. At stake is whether libraries are free to use Internet filtering software to block adults’ access to constitutionally protected speech. The defendant, a consortium of 23 public libraries, has a policy of blocking access to all speech it considers inappropriate for children. One of our clients, the gun rights group the Second Amendment Foundation, joined the lawsuit because the libraries went so far as to block all websites about firearms, including one of the advocacy organization’s own websites. In the name of protecting kids, the library has blocked access to a great deal of speech that is indisputably protected by both the Washington and federal constitutions. Other clients in the case are adult patrons of the libraries whose efforts to do research online have been frustrated by the libraries’ filter. For example, Sarah Bradburn was prevented from accessing websites about youth tobacco usage that she needed to complete a school assignment. What our clients want the library to do is to honor requests by adult patrons to turn off the filter to allow sessions of uncensored reading and research. This case is not about whether libraries have to allow children to access all of the Internet. It is also not about whether libraries can have filtering be the default at computer terminals. Nor is this a case about materials that are obscene—no one is challenging the libraries’ right to prohibit access to this content, which is already against the law. The only question in this case is whether patrons can request that the filter be temporarily turned off so they can access protected speech. Our argument is straightforward: it is impermissible for libraries to reduce adults to reading only what is appropriate for children. A half century ago, the United States Supreme Court held in Butler v. Michigan that government may not “reduce the adult population . . . to reading only what is fit for children.” On that ground, the Court invalidated a conviction under a Michigan law that criminalized the distribution of literature that could have “a potentially deleterious influence upon youth.” The Washington State Supreme Court has been asked to rule on the basis of the Washington State Constitution, but we think the same principle applies. Libraries are supposed to facilitate patrons’ own efforts to broaden their horizons, not limit patrons to approved topics. Libraries must disable the filter at the request of adults to allow them to access protected speech.
Court Silences Political Speech…For NowWe just lost — for the moment, at least — an important court case about the right to protest. In 2005, Leslie Weise and Alex Young were removed from one of President Bush’s speeches. The speech was open to the public and funded by taxpayers. The lawsuit charges that they were ejected because they arrived in a car with a bumper sticker that said, “no more blood for oil.” The ACLU filed suit on their behalf, arguing that Leslie and Alex were kicked out solely because they disagreed with the President. We reasoned that, if the First Amendment stands for anything, it’s that the government cannot punish people because of their political views. This is the sort of case that we do not expect to lose. It seems obvious that when the President gives a speech on the taxpayer’s dime and invites everyone to come, he can’t then weed out people he doesn’t like because of what they believe. The district court in Colorado did not find it so obvious. The court wrote that Leslie and Alex’s “complaint is essentially that they were not permitted to participate in the President’s speech. President Bush had the right, at his own speech, to ensure that only his message was conveyed.” The court dismissed Leslie and Alex’s case. We believe this decision is wrong. Leslie and Alex did not want to speak at the President’s event. They weren’t trying to stand up on the stage with him. They just wanted to listen to his message. What the court seems to be suggesting is that when the President speaks, the audience is part of his message. The President has the right to surround himself by adoring supporters, and to exclude all of those who may not agree with him. Why the President might wish to do this is clear: so that when the nightly news broadcasts images of the event, he is surrounded by supporters, not those who vigorously question his policy choices. This can’t be the law. If this is the law, then those who attend Presidential speeches are not audience members in the traditional sense, but are more like extras on a movie set. They are cast there to play a particular role, namely to support the President. This is a far cry from the notion of open, public debate as we’ve always understood it. It is likely that Leslie and Alex will appeal this decision.
Court Strikes Down Internet Censorship LawWe just received word today that the Third Circuit struck down a federal Internet censorship law as unconstitutional. The law, called the Child Online Protection Act, imposed civil and criminal penalties on those who place "harmful to minors" material on the Web. Under this law, no adult, no matter how mature or responsible, would have been allowed to see material that is deemed unfit for a child. The law would have forced vast swaths of constitutionally protected speech off of the Web. Today's victory is a huge win that comes as a result of 10 years of litigation by a dedicated group of ACLU clients. All of our clients—from award-winning, established publications such as Salon to individuals such as Heather Corinna, who works largely on her own to provide valuable sexual health information geared toward teenagers—put up with a great deal of hassle and inconvenience and stress. By standing up for their own right to engage in free speech on the Web, they helped protect the rights of all Americans. They deserve our thanks. Whether today's opinion is the last to address COPA is up to the government and, ultimately, to the Supreme Court. The government has some time to decide whether it wants to ask the Court to review this case. Hopefully it will conclude that 10 years of litigation is enough.
Can You Find Me Now?Today the ACLU sued the Justice Department to force it to reveal its policies for tracking the location of cell phones. As anyone who watches Law & Order: SVU knows, all cell phones double as tracking devices.They send cell phone networks information that provides a pretty accurate idea of where they are physically located. This means that if you go for a walk around town with a cell phone in your pocket, it is possible for your cell phone provider to trace your route. At least today, your cell phone provider does not have a business reason to keep such close track of you. But the government has plenty of reasons to want to do so. The question is under what circumstances the government is going to be able to access such information. The ACLU’s position is that people have a reasonable expectation that their movements will not be tracked, especially when they are in private places such as homes, and that the government should have to get a warrant from a court to obtain cell phone location information. The government disagrees. News reports and court decisions (PDF) indicate that the Justice Department has been asking courts to authorize it to get this information without producing evidence sufficient to get a warrant, and sometimes without any court involvement at all. Sometimes the government wins, sometimes it does not. But the few cases that garner press attention or result in court opinions are likely to be a small subset of the number of times the government engages in such tracking. The purpose of the lawsuit the ACLU filed today is to get the Justice Department to reveal its policies for when it tracks the location of people’s cell phones. The public has the right to know how widespread such monitoring is, so that they can fairly evaluate the privacy risks of carrying a cell phone.
Take Three: Appellate Court Hears Challenge to Internet Censorship . . . AgainA sense of déjà vu pervaded the courtroom in Philadelphia yesterday as the ACLU presented its challenge to the Child Online Protection Act . . . again. This is not the first or the second, but the third time the ACLU has been before the Third Circuit Court of Appeals, arguing that COPA, a federal Internet censorship law, suppresses vast quantities of constitutionally protected speech without doing much of anything to keep kids safe from inappropriate materials. COPA requires websites to place "harmful to minors" material out of the view of children. This well-intentioned law suffers from many flaws, not the least of which is that there is no currently available technology that enables websites to distinguish adults from children. It is unclear what it means for something to be "harmful to minors." One person's valuable artistic expression is another's worthless pornographic image. Worst of all, COPA fails to protect children, because the law places no restrictions on overseas websites. The best way to think of COPA is as an in-kind donation to foreign Web sites that provide "harmful to minors" content. A few years ago, the Supreme Court indicated that it would strike down COPA if Internet filtering software is an effective way to keep kids from seeing material harmful to them. Last year, the trial court held that filtering software blocks 95% of inappropriate materials. The appeals court can only overturn that conclusion if it was clearly erroneous - an argument the government did not raise. Instead, the government's primary contention that COPA is necessary is that about half of parents use Internet filtering software on their kids' computers. The government's implicit assumption seems to be that parents who choose not to filter their childrens' Internet use are so irresponsible that the federal government needs to step in. The ACLU countered that some parents' decision not to use Internet filters is a valid exercise of parental judgment, not evidence of reckless parenting. The government also attempted to frame the case as about protecting kids from the evils of pornography. It submitted to the court a sizeable collection of images it determined were "harmful to minors", leading the government's attorney to quip that reviewing the case file was "a plum job for a clerk." The court pointed to the trial court's finding that websites addressing current events and sexual health information reasonably feared prosecution under the law. The court also asked the government whether COPA's failure to address overseas sites wasn't a serious flaw. The government stated that Congress could take a "belt and suspenders" approach to protecting kids, first tackling domestic websites and perhaps later addressing foreign Websites. Playing off of this phrase, the ACLU made the point that if filters work well, COPA is unnecessary - as ACLU Senior Staff Attorney Chris Hansen put it, "If the belt works at least as well as the suspenders, then you can't send people to jail for not wearing the suspenders." Now all there is to do is wait for the court to rule yet again.
Fighting for a Free Press in Puerto Rico
This morning we argued a case about the freedom of the press before a panel of very engaged 1st Circuit judges in Puerto Rico.We represent a number of journalists who were kicked, punched and pepper sprayed by FBI agents. The FBI agents had been executing a search of an apartment in a condominium complex. As the search wound down and agents exited the condominium building, the reporters approached them for comment. The FBI agents responded by beating the journalists and spraying them with pepper spray.
We argue this violates the journalists' First Amendment right to gather the news and their Fourth Amendment right to be free of excessive force. The district court judge ruled against our clients even before there was any opportunity to gather evidence to support our side of the case. We appealed to the 1st Circuit. The 1st Circuit judges were very lively and had a lot of questions for both sides. They were especially interested in whether the fact that our clients were journalists, rather than members of the general public, changed the analysis. We argued that it was especially unreasonable to use force against journalists because there was no reason to think they were approaching the FBI agents for any reason other than to carry out their jobs. The judges did seem very concerned about the fact that the district court judge cut off the case before there was an opportunity to present more evidence to the court. For instance, we never had the chance to interview any of the FBI agents to learn more about the FBI's policies regarding treatment of the media in Puerto Rico. Hopefully the circuit will allow the case to move forward. For now, all we can do is wait to see what the 1st circuit decides.
Keep Kids Safe with Software, Not Censorship
Yesterday we filed a brief in 3rd Circuit Court of Appeals , asking it uphold a federal court decision that the Child Online Protection Act is unconstitutional . COPA makes it unlawful to put "harmful to minors" material on the Web. At last year's trial in Philadelphia, we asserted that the law is unconstitutional, because it restricts access to a vast amount of speech that adults are constitutionally entitled to receive. The court agreed and forbade the government from enforcing it.
The government appealed the court's decision last month, and we filed yesterday's brief to respond to that appeal. In our brief, we describe how COPA suppresses a wide range of speech - from sexual health information to artistic drawings - while doing little to keep kids safe online. Because the law does not apply to foreign Web sites, even the worst hard-core pornography will remain available. COPA can't keep pace with the filtering software that does a much better job at protecting kids from harmful content. (This side-by-side PDF comparison of software filters v. COPA shows how inadequately the law protects children.) Hopefully the appeals court will agree.
Fight for Online Free Speech Continues - Again
As expected, the government is appealing the ACLU's March 2007 victory in the Child Online Protection Act (COPA) case. COPA is an Internet censorship law that makes it a crime to place content deemed "harmful to minors" on the Web unless the content is behind a credit card or age verification screen. Our victory capped off more than eight years of litigation, including two trips to the Supreme Court. The ACLU won at every stage.
But clearly, it's far from over. We just received the government's opening brief to the 3rd Circuit Court of Appeals, and even the government admits that it's got its work cut out for it. It will attempt to argue — again — that COPA's censoring guidelines are the least speech-restrictive way to keep kids safe from pornography. In other words, the government will argue that this federal law will do a better job keeping smut from your kids than parental guidance and use of Internet filtering software. The government will also argue that the district court misunderstood the scope of COPA. In the brief, the government argues that what COPA calls "harmful to minors," should be interpreted as harmful only to older minors, and that what COPA considers "commercial purposes" meant the law was narrowly targeted at commercial pornography web sites. The problem is, the text of COPA contains no such limitations. As the district court concluded, COPA does not distinguish between kindergarteners and teenagers, and the term "commercial" can include any Web site that supports itself through advertising. The government also disagrees with the district court's view of the facts presented during the trial. In general, factual determinations are uniquely the job of district courts, which view all witness testimony and are therefore well-positioned to assess credibility. In contrast, appellate courts don't see the testimony, and are therefore limited in their ability to second guess district courts. We'll address these arguments in 30 days with our brief in opposition. Stay tuned!
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