Barry Steinhardt asks three-judge panel "Is Cyberspace Free?"

April 1, 1996 12:00 am

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Barry Steinhardt asks three-judge panel “Is Cyberspace Free?”


PHILADELPHIA, PA — You can’t put a price on free speech in cyberspace, ACLU Associate Director Barry Steinhardt told a three-judge panel in the final day of plaintiff testimony in the group’s legal challenge to Internet censorship. And if you did, Steinhardt said, the ACLU probably could not afford it.

Technical and economic problems with implementing the censorship law may even cause the ACLU to shut down its website, Steinhardt testified. He cited cost estimates of $144,000 per month to register users on the ACLU website, based on its first month of activity in which at least 67,000 persons visited the site.

Steinhardt also described online features created by the ACLU that he expected would be subject to censure under the new law, including a quiz in which users are asked to guess the “seven dirty words” banned by the Federal Communications Commission on radio broadcasts. The feature includes the text of F.C.C. v. Pacifica, the Supreme Court decision containing those words.

“What we or others display on our Internet and America Online sites is precisely the language which the F.C.C.called indecent in censoring Pacifica Radio,” Steinhardt said. “But we cannot discuss important civil liberties issues that involve censorship without using the words that are being censored.”

Steinhardt was the last witness of the day in the consolidated cases of ACLU v. Reno and American Library Association v. U.S. Department of Justice, challenging provisions of the law that criminalize making available to minors “indecent” or “patently offensive” speech.

“Today’s testimony helped to illustrate that there is no practical way for content providers, including the ACLU, to screen out so-called indecency without preventing adults from accessing valuable, constitutionally protected material,” said Chris Hansen, lead counsel for the ACLU.

Also testifyng on behalf of the ACLU was Howard Rheingold, author and expert on cyberspace communities, who told the judges of his concern about the difficulty of defining a “community standard” for a worldwide network. The “contemporary community standards” he applies in his own home, Rheingold told the judges, may be different from that of his neighbor down the street.

Also testifying for the ACLU was plaintiff Stephen Donaldson, president of Stop Prisoner Rape. Donaldson said that he feared the “street language” and graphic depictions of prison rape presenting on his web site would subject him to prosecution and fines.

As on the first two days of testimony, lawyers from the U.S. Department of Justice cross-examined witnesses whose direct testimony was submitted by affidavit, according to procedures laid out by the judges. The judges also questioned the witnesses from the bench, and ACLU and ALA coalition lawyers were given an opportunity to redirect, i.e., question their clients in response to the government’s cross-examination.

Witnesses for the ACLU and ALA coalitions appeared in the following order:

1. Bill Burrington, assistant general counsel and director of public policy, America Online.
2. Stephen Donaldson, president, Stop Prisoner Rape.
3. Andrew Anker, president and CEO, HotWired.
4. Howard Rheingold, author and expert on cyberspace communities.
5. Barry Steinhardt, Associate Director, American Civil Liberties Union

The next two days of testimony are set for Friday, April 12 and Monday, April 15, when government lawyers will begin to present their case. A list of government witnesses will be announced on April 3 and 4.

Lawyers for the ACLU and ALA will have an opportunity to present witnesses rebutting the government’s testimony on April 26. In addition, the court today scheduled final arguments by plaintiff and defense attorneys for Monday, June 3. The judges will issue a ruling in the days or weeks following. Under expedited provisions, any appeal on rulings regarding the new censorship law will be made directly to the U.S. Supreme Court.

Lawyers for the ACLU appearing before the judges are Christoper Hansen, lead counsel, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of Pennsylvania.

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