Defending Reproductive Rights in Cyberspace

1. The ACLU’s Historic Role Defending Free Speech About Sexuality and Reproduction

“Anti-obscenity laws consistently have been used to suppress information about contraception,” Nadine Strossen, President of the Board of the ACLU, has noted. Foremost among those laws was America’s first federal ban on obscenity, known as the “Comstock Law.” Anthony Comstock, a leader of the Society for the Suppression of Vice, successfully lobbied to have this law enacted in 1873. It banned the mailing, importation, and transportation of:

• any obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other matter of indecent character; or
• any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made.

The United States government deputized Anthony Comstock, giving him the power to order thousands of arrests and prosecutions of those suspected of violating the ban. Violators were subject to steep fines and imprisonment. Twenty-four states enacted their own anti-obscenity statutes modeled upon the Comstock Law.

From its earliest days, the ACLU has been committed to defending those charged with violating federal, state, or local bans on allegedly “indecent” forms of expression. In the 1920s and subsequent decades, the ACLU stood up for the right of activists to speak and publish about human sexuality, reproduction, and contraception. Among those defended by the ACLU were Margaret Sanger, Mary Ware Dennett, and Marie Stopes, pioneers in the areas of sex education and birth control. The ACLU fought numerous battles in support of access to birth control information and devices, culminating in the landmark 1965 case, Griswold v. Connecticut, which struck down state bans on the prescription, sale, and use of contraceptives.

The ACLU also campaigned against the censorship of literature and art that touched upon sexual matters. The phrase “Banned in Boston” originated in the mid-1920s when the Boston Watch and Ward Society organized a crusade to ban books, magazines, plays, and speeches it considered indecent. The Society banned Theodore Dreiser’s An American Tragedy, Sinclair Lewis’s Elmer Gantry, and many other literary works, including Eugene O’Neill’s play, Strange Interlude, which mentioned abortion. Boston’s mayor prohibited a speech by birth control advocate Margaret Sanger. The ACLU fought back for the right to free expression. It launched a multifaceted campaign to end censorship in Boston and elsewhere. One of the campaign’s highlights was a skit featuring Margaret Sanger with a gag over her mouth while Harvard historian Arthur M. Schlesinger, Sr. read her suppressed speech to a public audience. ACLU attorneys went on to win a string of important victories over censors, including a highly significant 1933 decision allowing James Joyce’s Ulysses to be brought into the United States.

Successful legal challenges and changing public sentiments gradually weakened the hands of both government censors and private censors, such as those in the film industry. A turning point came in 1959-1960, when two federal courts ruled that the Comstock Law could not be used to stop publication of an unexpurgated version of Lady Chatterley’s Lover. Although the Comstock Law remained on the books and still provides the basis for laws against obscenity and child pornography, its provisions about contraception and abortion fell into disuse. In 1971, Congress deleted the provision about contraception. After decades of stifling free expression, the Comstock Law finally lost its power to silence speech about contraception and abortion — that is, until Congress recently decided to revive and extend it!

2. A Roadblock on the Information Superhighway

At the beginning of 1996, Congress passed the Telecommunications Reform Act restructuring the web of regulations governing the communications industry to reflect new technological realities. But Congress also included in the Telecommunications Act a provision called the “Communications Decency Act” (CDA). The CDA imposes two forms of onerous censorship:

• it criminalizes making “indecent” or “patently offensive” speech available to minors over the Internet and other online computer networks; and
• it extends the Comstock Law’s provisions about abortion to the Internet and other online computer networks. (The Comstock provision was added to the Telecommunications Act by longtime abortion foe, Rep. Henry Hyde.)

The CDA makes violators of the ban on “indecent” or “patently offensive” speech subject to a maximum fine of $250,000, up to two years imprisonment, or both for each offense. The statute makes violation of the abortion provision punishable by a maximum fine of $250,000 and/or up to five years in jail.

It is important to note that the CDA does not target obscenity or child pornography, which are already illegal. Instead, it takes aim at a much broader and ultimately indefinable category of speech. Although the CDA provides that what is “patently offensive” can be “measured by contemporary community standards,” this proposition is unworkable on the Internet, which is, in effect, a “global bulletin board.” On the Internet — as anywhere — material that some people may consider “indecent” or “patently offensive” will strike others as perfectly acceptable. “Local community standards” have no meaning in a medium with no geographical or temporal boundaries, one that reconnects users around the globe in the new “virtual community” of cyberspace. The CDA would transform the Internet, which promised to be a true open marketplace of ideas, into the most heavily censored form of communication. The Act would even bar Internet users from transmitting material that is legal to publish in print form. It would turn “netizens” into second-class citizens in the realm of free expression. Stunned by the discriminatory impact of the CDA, angry Internet users turned their home pages black, wore blue ribbons, and engaged in other forms of protest against the Act.

3. An Outcry From Those Silenced by the Communications Decency Act

The ACLU, representing itself and 19 other plaintiffs, immediately filed a lawsuit to challenge the Act. We argued that the CDA tramples upon the free speech rights guaranteed by the First Amendment and the due process rights guaranteed by the Fifth Amendment. Our co-plaintiffs include the Planned Parenthood Federation of America, Human Rights Watch, Stop Prisoner Rape, the National Writers Union, the Critical Path AIDS Project, the Safer Sex Web Page, Wildcat Press, and the Institute for Global Communications. Because of the type of information they were posting electronically, these plaintiffs were all potential violators of the CDA who felt inhibited by the new statute. As plaintiff John M. Troyer explained, “The very idea of the Safer Sex Page openly available on the Internet, or giving out information on condoms and other forms of birth control, could be considered `indecent’ or `patently offensive’ to some people.”

For the ACLU and the Planned Parenthood Federation of America, the CDA packed a double whammy: both organizations violated the law not only by posting material about access to abortion, but also by discussing other topics — such as human sexuality and contraception — that could be construed as falling within the ambit of the CDA. Many advocates of reproductive rights were justifiably worried about violating the CDA’s generalized ban on “indecent” speech even if they did not explicitly mention abortion.

Plaintiffs such as Planned Parenthood viewed the CDA as disastrous because it threatened to cut off a flow of information that could make a vital difference in people’s lives. That organization’s Internet site provides a wide range of information about sexuality, contraception, and abortion, including a toll-free telephone number that enables women to make an appointment at the nearest affiliate that provides abortion services. Planned Parenthood’s Interim Co-President, Jane M. Johnson, told the court: “We believe that the information we provide will literally save lives, prevent unintended pregnancies, and promote better health.”

Along with Planned Parenthood, a number of other plaintiffs specifically emphasize reaching minors with their information. The Internet site coordinator for the AIDS Education Global Information System said in her affidavit: “Preventing teenagers who are sexually active or are planning on being sexually active from gaining access to the potentially life-saving information AEGIS provides could cost lives.”

4. The Legal Challenge to the Communications Decency Act — ACLU v. Reno

Ira Glasser, the ACLU’s Executive Director, has said of the challenge to the CDA: “Nothing less than the future of free expression in the United States is at stake here.” The case was heard by three federal judges on a special panel convened in Philadelphia. The judges presided over five days of hearings, where they went on guided Web-surfing expeditions and heard testimony from fifteen witnesses for the plaintiffs and two witnesses for the government.

From witnesses and legal documents, the judges received a mini-history course on the evolution of the Internet. They learned how it grew from a computer network for those involved in defense research into one that is fast becoming universally accessible to the general public through schools, libraries, and even cyber-cafés. Approximately 40 million people worldwide now can and do use the Internet. By 1999, the number of Internet users is expected to grow to 200 million.

The ACLU argued that the CDA violates constitutional guarantees of free speech, privacy, and due process. Like countless other information providers, we ourselves felt the effects of the CDA when our online host raised the question of removing certain explicit information from our Web site to avoid being held liable under the new statute. We explained to the court that not only does the CDA restrict the First Amendment rights of minors and all those who communicate with them, but it essentially bans “indecent” or “patently offensive” speech entirely, limiting the adult online population to “only what is fit for children.” It also violates privacy rights because it criminalizes certain private e-mail correspondence between individuals. The CDA is an unconstitutionally vague and overbroad law, we charged, because it fails to define its terms precisely, to tell Internet users how to comply with it, and to distinguish which participants in the distribution of online speech can be held liable for non-compliance.

We told the court that the CDA bans much material that is unquestionably valuable rather than harmful to older minors. The judges heard testimony that one quarter of all new HIV infections in the United States are estimated to occur in young people between the ages of 13 and 20. Given the high number of youth at risk, it is unconscionable to cut off a flow of potentially life-saving information that can be obtained from the Internet by anonymous and confidential means that are particularly appealing to young people. The Supreme Court has ruled in numerous contexts that minors have First Amendment rights, including the right to information about reproduction and sexuality.

We made the point that children will not be left unprotected without the CDA. When Congress was considering the telecommunications bill, the Department of Justice sent a letter to Senator Patrick Leahy stating that the CDA was not necessary because the Department was successfully prosecuting online obscenity, child pornography, and child solicitation under existing laws and intended to continue zealously doing so. Moreover, parents can choose from a variety of software that will block the online transmission of sexually explicit material. Because 40 percent of online communications — and a large number of pornographic sites — originate outside the United States, no American law like the CDA could totally eliminate all “indecent” or “patently offensive” material on the Internet. Blocking software is far more effective in protecting children than censorship would be.

ACLU attorneys pointed out the irony at the core of the case: “Congress has, ironically and unjustifiably, chosen to impose a more restrictive and draconian censorship law than it has ever applied to any other medium, to a medium with vast potential to foster communication, promote democracy, and make the `marketplace of ideas’ a reality in the 21st century.”

5. A Decision to Safeguard Protected Speech — “the keystone, the bulwark, the very heart of our democracy”

Ruling on both ACLU v. Reno and American Library Association v. Department of Justice, a related challenge that was consolidated with our case, the three-judge panel granted a preliminary injunction to block enforcement of the “indecency” and “patently offensive” provisions of the CDA.

In three separate opinions, the judges explained their qualms about the Act. Calling the CDA “a well-intentioned law,” Judge Stewart Dalzell said that a law that “restrict[s] protected speech on the basis of its content is, nevertheless, state-sponsored censorship.” Chief Judge Dolores K. Sloviter zeroed in on the CDA’s potential to chill protected speech, characterizing it as “a criminal statute that hovers over each content provider, like the proverbial sword of Damocles.”

Judge Sloviter explained why the court should not simply trust the Department of Justice to enforce the CDA with restraint:

[The government] suggests that . . . we should, in effect, trust the Department of Justice to limit the CDA’s application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce’s Ulysses as obscene. . . . But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well.

Ultimately, the judges were persuaded by the ACLU’s argument that the CDA would stifle “a promising new medium that could empower citizens and promote democracy.” In the words of Judge Stewart Dalzell:

It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country — and indeed the world — has yet seen. The plaintiffs in these actions correctly describe the “democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.

Judge Dalzell, like his colleagues, reached the conclusion that, “Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.” The Internet and other online computer networks merit “the highest protection from governmental intrusion.”

The court’s ruling is one of historic importance. “It’s only a handful of times in a century that a court is called upon to decide what the rules will be in a new communications medium,” said Christopher Hansen, ACLU Senior Staff Attorney. “The decision in ACLU v. Reno reaffirms that, no matter what the medium, the message should be protected by the First Amendment.” The Department of Justice has taken a direct appeal to the United States Supreme Court. We are confident that the Supreme Court will uphold our victory.

6. No More “Gag Rules” on Speech About Abortion

The ACLU was also partially victorious in its challenge to the abortion provision of the CDA. Our initial brief in ACLU v. Reno asserted that the provision was unconstitutional. We argued that “[t]he Supreme Court has never found a government interest in suppressing speech related to abortion or contraception sufficient to uphold a restriction.” In response to our challenge and Sanger v. Reno, a lawsuit filed by other pro-choice organizations in the Eastern District of New York, the Department of Justice conceded in February 1996 that the restriction on abortion speech was unconstitutional and that it would neither defend nor enforce it. Because of this concession, the courts have not viewed information providers as being “in imminent danger of prosecution” and have therefore not granted a temporary restraining order or injunction against enforcement of the abortion provision.

The Department of Justice’s promise not to prosecute holds only for the Clinton Administration. Because the ban on abortion speech remains on the books, newly amended to apply to the Internet, the exercise of both free speech and abortion rights may well be chilled under future administrations. The ACLU, its co-plaintiffs, and the plaintiffs in Sanger v. Reno collectively asked the Department of Justice to enter into a consent judgment stipulating the abortion provision’s unconstitutionality, so that it could never be enforced by any administration. Inexplicably, the Department has refused to do so, and it also refuses to pledge itself to give information providers advance notice should it ever decide to prosecute under the abortion provision.

Once again, the government is essentially saying, “Trust us to do the right thing.” But as Judge Ronald L. Buckwalter said of the CDA as a whole, “What may be, figuratively speaking, one administration’s pen may be another’s sword.” The abortion provision should be wiped off the books, before it can stifle speech in the most advanced communications media this century has to offer. The ACLU has reserved the right to press forward at another time with its effort to enjoin the abortion provision of the CDA. As former New York Times columnist Anna Quindlen wrote, commenting on the regulatory “gag rule” that blocked free speech about abortion at federally funded family planning clinics between 1988 and 1993:

No more gag rules — that should be our goal. In clinics, in colleges, in lecture halls. Anywhere.