Letter to Senate Committee Urging Opposition to Two Bills
March 11, 1998
Members of the Senate Committee on Commerce,
Science and Transportation
508 Dirksen Senate Office Bldg.
Washington, DC 20510-6125
Re: Constitutional Objections to S. 1619 and S. 1482
We are writing on behalf of the American Civil Liberties Union and the Electronic Frontier Foundation. Less than one year ago, the Supreme Court unanimously ruled that the Communications Decency Act of 1996 (CDA), which made it a crime to communicate indecent materials on the Internet, violated the First Amendment. Reno v. ACLU, 117 S. Ct. 2329 (1997). Today the ACLU urges you to vote 'NO' on two bills -- S. 1619 and S. 1482 -- that fly in the face of the Supreme Court's ruling and will restrict protected speech on the Internet.
The Internet School Filtering Act, S. 1619, requires that all public libraries and schools which receive federal funds for Internet access use blocking programs to restrict Internet access to material that is "inappropriate for minors." We believe this condition to be both unconstitutional and contrary to good public policy.
Blocking software restricts access to valuable, protected online speech about topics ranging from safe sex, AIDS, gay and lesbian issues, news articles, and women's rights. Even religious groups such as the Society of Friends (Quaker religion) and the Glide United Methodist Church have been blocking by these imperfect censorship tools. This type of arbitrary censorship is a blatant violation of the First Amendment. Reno v. ACLU.
The government may not condition federal funding on unconstitutional requirements. By forcing libraries and schools to use blocking software, S. 1619 unconstitutionally conditions federal funding on censoring protected speech. See FCC v. League of Women Voters of California, 468 U.S. 364 (1984).
Blocking programs require the exercise of subjective human judgment by program manufacturers -- not parents, librarians or teachers -- to decide what speech is acceptable and what should be restricted. Almost all blocking software providers refuse to disclose their lists of blocked sites, thereby depriving the consumer from making informed decisions.
Clumsy and ineffective blocking programs are a band-aid solution to parental concerns. Blocking software provides a false sense of security that minors will be protected from all material that parents may find inappropriate.
The purpose of federal funds for Internet access at libraries and schools is to enable all individuals to enjoy the tremendous speech-enhancing qualities of cyberspace. By censoring public access, the Act dilutes what the Supreme Court affirmed as "the most participatory form of mass speech yet developed." Reno v. ACLU.
S. 1482, sponsored by Senator Coats, would punish commercial online distributors of material deemed "harmful to minors" with up to six months in jail and a $50,000 fine.
While there is a governmental interest in protecting children from harmful materials, that interest does not justify the broad suppression of adult speech. Reno v. ACLU. The Supreme Court has unequivocally held that the "government may not "reduc[e] the adult population ... to ... only what is fit for children." Denver Area Ed. Telecommunications Consortium v. FCC. 135 L.Ed.2d 888 (1996).
The definition of "distributor" under S. 1482 could include the virtual bookstore amazon.com or a promotional site for a Hollywood movie, as well as individual sites with advertisements for products such as Netscape. Any business merely displaying material without first requiring a credit card or other proof of age could be found liable under the statute, even if no actual sale is involved.
The Court in Reno v. ACLU found that the credit card or other age verification requirement imposes a severe financial and logistical burden on speaker who have a constitutional right to disseminate such material, including commercial distributors. While a distributor such as Time Inc. may be able to absorb the financial burden of such a requirement, an independent online "e-zine" such as Salon may be forced to shut down.
Speech that is harmful to minors is unquestionably protected by the Constitution when communicated among adults. The Coats Amendment also fails to make any distinction between material that may be harmful to a six-year-old but valuable for a 16-year-old, such as safer-sex information.
For the foregoing reasons we urge you to vote against passage out of the Committee of S. 1619 and S. 1482.
Laura W. Murphy, Director
ACLU Washington Office
Gregory T. Nojeim
A. Cassidy Sehgal
William J. Brennan Fellow
Barry Steinhardt, President
Electronic Frontier Foundation