Affidavit in ACLU, et al v. Reno
I, Candace Perkins Bowen, do hereby depose and swear:
1. I am the President of the Journalism Education Association (JEA), one of the largest national organizations of high school journalism teachers and publication advisors.
2. I submit this affidavit on behalf of JEA and its members.
3. JEA is incorporated in Minnesota and has its headquarters in Manhattan, Kansas. It has almost 1600 individual members who reside throughout the country.
4. JEA was formed in 1924 to serve journalism educators through opposing censorship of student expression, creating aids for curriculum and instruction, facilitating the involvement of minority students, promoting the use of technology, and emphasizing professionalism through certification, workshops, conventions, and publications.
5. Many JEA members are high school journalism teachers. JEA members increasingly use online communications as part of a course of instruction in high school journalism classes. JEA members instruct students in the classroom, for example, on use of online communications for news gathering and journalistic research. JEA members also routinely authorize students to conduct their own online research using school computers either in the classroom or on their own time in school computer labs.
6. One of the most useful aspects of journalistic research through online communications like the Internet is the ability to simultaneously search a large number of information databases that are provided online by a variety of different sources. It is possible, for example, to simultaneously search the entire World Wide Web for information related to a particular topic. Students of JEA members gain exposure to online communications about a wide variety of subjects during the course of the learning process.
7. Many JEA members are publication advisors for high school student newspapers. JEA members believe that student-run newspapers and other publications give high school students valuable experience in research, writing, editing, printing, and personal responsibility. Student newspapers provide an opportunity for students to exercise their right to free speech on issues of their own choosing, whether it be student accomplishments in academics or sports, disputes between students and the school administration, or issues such as the problem of teen pregnancy. JEA members who are publication advisors routinely authorize students to use school computers to conduct their own online research for student publications.
8. An increasing number of JEA members are advisors for online student publications, which are becoming more and more common due to increased student access at school to online communications systems. JEA members instruct students on online publishing techniques and authorize students to use school computers to publish their own online newspapers. Online student publications provide an opportunity for students to reach a wider audience and to share their experiences with students at other schools.
9. Because of the growing importance of online research and publishing for working journalists and for other occupations, JEA members believe that instruction about online research methods, and the chance for students to try online research and online publishing for themselves, is crucial to the education of their students.
10. When instructing their students in online research, JEA members have encountered material that could be deemed "indecent" or "patently offensive" under the statute. For example, one JEA member recently assisted a student with online research for an article on media treatment of women. The search led to online sites that contained very graphic information and pictures depicting violence against women.
11. JEA members are concerned that they will risk criminal prosecution or sanctions under Section (d)(2) of the statute if they "knowingly permit[] any telecommunications facility under [their] control to be used" to display to minors material that is "patently offensive." JEA members are concerned that they could be held liable under Section (d)(2) if they authorize students to conduct their own online research using school computers on their own time. While JEA members, in order to avoid possible criminal liability, could forbid their students from conducting their own online research on school computers, JEA members believe that this would violate their students' First Amendment rights to constitutionally protected speech.
12. JEA members who are student publication advisors are also concerned that they will risk criminal prosecution or sanctions under Section (d)(2) if they allow students to publish online material that is "patently offensive." In order to comply with the statute, JEA members could review and censor, if necessary, material in online student publications under their supervision that is "patently offensive." Because JEA members do not know what "patently offensive" means, they fear that they would censor constitutionally protected material in order to comply with the statute. JEA members who are student publication advisors do not know how to comply with the statute in this instance without also violating their students' First Amendment rights.
13. Section 223(f)(1) provides that "no cause of action may be brought in any court or administrative agency against any person on account of activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken a good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section." JEA members do not know if Section 223(f)(1) would protect them from liability for violation of First Amendment rights if they unnecessarily restricted access to important protected speech not covered by the Act.
14. JEA members are also concerned that they will risk criminal prosecution or sanctions under Section (d)(1)(B) if they "use any interactive computer service to display" to minors any material that is "patently offensive." JEA members are concerned that they may violate Section (d)(1)(B) if, during the course of classroom instruction about online research techniques, they display to minors material that is "patently offensive." JEA members understand that one possible course of action that could protect them from possible criminal prosecution or sanctions would be to screen out all online access to materials that might be considered "patently offensive." First, JEA does not know how to determine which material might be considered "indecent" or "patently offensive." Second, it would be technically infeasible for JEA members to attempt to screen "indecent" or "patently offensive" material while instructing students on how to conduct online research. Because of the nature of the search function on the World Wide Web and other online systems, it is difficult if not impossible to screen "indecent" or "patently offensive" material from appearing in the search results. For example, if a high school journalism teacher were instructing students on how to search for information on a story about war crimes in Bosnia, the search could reveal graphic testimony by rape victims that might be deemed "indecent" or "patently offensive" under the statute. Because the search function is based on a string of words, it is impossible to screen "indecent" or "patently offensive" pictures from the search results. In addition, any given search may reveal information sources not directly related to the topic being researched. For example, a general search on motorcycles could lead to an adult publication with "indecent" or "patently offensive" stories and photographs about women in the Harley motorcycle subculture.
15. JEA members fear prosecution or other enforcement under the statute for communicating, sending, displaying, or permitting computers under their control to send or display, "indecent" or "patently offensive" material in a manner available to persons under age 18.
16. Section 223(e)(5)(A) provides that "[i]t is a defense to a prosecution under subsection (a) or (d) that a person -- (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology." Some JEA members have used screening programs that block access to certain online sites containing sexually explicit material. They have discovered that use of these programs results in the blocking of many useful online sites containing material about subjects such as medieval life, poetry, education, soccer, and extremism. JEA members believe that mandatory use of such screening programs, in order to comply with the statute, would block students' access to much constitutionally protected material.
17. JEA members do not know whether any of the defenses listed in Section 223(e) would protect them from criminal prosecution.
Candace Perkins Bowen
Subscribed and sworn before me on this ___ day of February, 1996.
Notary Public