ACLU Asks Court to Affirm Landmark Decision Barring Internet Censorship

October 31, 1996 12:00 am

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WASHINGTON–The American Civil Liberties Union today filed a motion asking the Supreme Court to affirm a lower court decision rejecting as unconstitutional government censorship of the Internet.

The ACLU’s brief, filed today in answer to the government’s appeal of the district court ruling, asks the High Court to issue a “summary affirmance” — a finding that the lower court’s decision was constitutionally correct and therefore does not merit further examination.

“We filed for summary affirmance because we believe the decision is so clearly correct that such action is warranted,” said Steven R. Shapiro, Legal Director of the ACLU.

“We recognize, however, that summary affirmance is rare when the constitutionality of a federal statute is called into question,” Shapiro continued. “And if the Supreme Court grants review, we are prepared to vigorously defend the lower court decision.”

The so-called Communications Decency Act makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is “indecent’ or “patently offensive” on computer networks if the speech can be viewed by a minor. The ACLU argued — and a three-judge panel agreed — that because there is no way to shield minors alone from online “indecency,” the CDA amounts to a criminal ban on constitutionally protected communication among adults.

“The stakes in this case are undeniably high,” said Christopher Hansen, the ACLU lawyer who argued the case before the three-judge court in Philadelphia. “Whatever the Supreme Court decides will determine the government’s ability to regulate a technology that will undoubtedly serve as the basis for global communication into the 21st century.”

A second brief, filed today by Reno v. ACLU co-plaintiffs American Library Association et al., makes similar constitutional arguments in favor of upholding the lower court’s decision. However, while acknowledging that a request for summary affirmance would be appropriate, the brief states that the ALA will not oppose a full review by the Court.

“Whatever the Court decides, we will continue to work together with our colleagues to ensure the best possible outcome for free speech principles,” said the ACLU’s Hansen.

In the brief filed today, the ACLU presents two main arguments for upholding the trial court’s decision:

I. Given the court’s extensive and largely undisputed findings regarding the nature of cyberspace, the decision is “plainly correct.”

The decision issued in June by the three-judge court contained over 400 separate “findings of fact” (now the official record of the case before the Court ) about the nature of communication and content in the cyberspace medium. Notably, the ACLU’s brief points out, 334 of the 409 separate fact- findings adopted by the trial court were derived from stipulations (mutual agreements as to facts) submitted by the plaintiffs and defendants. Thus the majority of the facts necessary to the court’s ruling were not disputed by the government.

Among the court’s findings:

  • the CDA “will almost certainly fail to accomplish the government’s interest in shielding children from pornography on the Internet,” in part because “nearly half of Internet communications originate outside the United States.”
  • the government failed to meet its burden of establishing a compelling interest in blocking all minors’ access to all online communications.
  • the record demonstrates numerous alternative means of accomplishing the government’s purpose more effectively and less restrictively than an outright criminal ban, through parental use of blocking software and the development of other technology that allows for voluntary screening.

II. The government fails to raise any legitimate argument against summary affirmance.

In an attempt to convince the Court to review Reno v. ACLU, the government presents an entirely new argument in its jurisdictional statement, not raised in the trial court: that the CDA would apply only to those who “knowingly” transmit “indecent” communications to a minor.

But since any online user “knows” that minors have access to the vast public areas of cyberspace, the ACLU brief argues, all Internet users would risk prosecution simply by speaking in certain areas such as a news group or chat room.

In addition, the ACLU brief states, both plaintiff and defendant’s arguments in the lower court assumed that the CDA applied to all online communications that “might” be viewed by a minor (in contrast to sexually oriented messages intentionally sent to minors). Based on that assumption, the government asserted that the use of a credit card or other means to verify the age of online users would protect legitimate speakers from prosecution. The district court rejected this “safe harbor” defense as economically and technologically impracticable.

“The government’s disappointment with the trial court’s decision does not permit it to reinterpret the statute on appeal and introduce a new argument,” said Ann Beeson, a member of the Reno v. ACLU legal team. “If Congress meant for the CDA to apply only to persons who intentionally send ‘indecent’ communications to children, then it is ludicrous for the government to suggest a ‘safe harbor’ defense for those speakers.”

The CDA includes criminal penalties for coercion and enticement of minors online which the ACLU does not challenge, Beeson added.


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