ACLU and Others Challenge Internet Censorship Bill Signed by President Clinton
Justice Department was correct in warning that the law unconstitutionally censors valuable online speech.
In papers filed this morning in federal District Court in Philadelphia, the groups are seeking an injunction against the new law, which is scheduled to go into effect 30 days from the date it was signed.
Demonstrating the range of speech affected, the list of plaintiffs includes the Internet Content Coalition, a member group including Time Inc., Warner Bros., C/NET and The New York Times Online; OBGYN.Net, a women's health website; Philadelphia Gay News; Salon Magazine; and the ACLU on behalf of its members including poet Lawrence Ferlinghetti and ACLU President Nadine Strossen. (The complete plaintiff list can be found here).
In February 1996, during "round one" of this litigation, the ACLU, EFF and EPIC filed a challenge to the ill-fated Communications Decency Act. A three-judge panel in the same federal district court struck down the law in June, a ruling that was upheld by a unanimous Supreme Court one year later in Reno v. ACLU.
This second round challenges the new so-called "Child Online Protection Act" makes it a federal crime to "knowingly" communicate "for commercial purposes" material considered "harmful to minors." Penalties include fines of up to $50,000 for each day of violation, and up to six months in prison if convicted of a crime. The government also has the option to bring a civil suit against individuals under a lower standard of proof, with the same financial penalty of up to $50,000 per violation.
Despite lawmakers' claims that the new bill is "narrowly tailored" to apply only to minors, ACLU Staff Attorney Ann Beeson said that the constitutional flaws in this law are identical to the flaws that led the Supreme Court to strike down the CDA.
"Whether you call it the 'Communications Decency Act' or the 'Congress Doesn't Understand the Internet Act,' it is still unconstitutional and it still reduces the Internet to what is fit for a six-year-old," said Beeson, a member of the original ACLU v. Reno legal team.
Although proponents claim that the law applies only to commercial websites, nonetheless, the groups said in legal papers, the law "bans a wide range of protected expression that is provided for free on the Web by organizations and entities who also happen to be communicating on the Web 'for commercial purposes.'"
The 17 plaintiffs represented in ACLU v. Reno II are:
- The American Civil Liberties Union (on behalf of all its members including Nadine Strossen, Lawrence Ferlinghetti, Patricia Nell Warren and David Bunnell)
- A Different Light Bookstore
- The American Booksellers Foundation for Free Expression
- The Blackstripe
- Electronic Frontier Foundation (on behalf of all its members including Bill Boushka, Jon Noring, Open Enterprises Cooperative and Rufus Griscom)
- Electronic Privacy Information Center
- Free Speech Media, LLC
- Internet Content Coalition (whose members include CBS New Media, Time Inc., The New York Times Electronic Media Company, C/Net, Warner Bros. Online, MSNBC, Playboy Enterprises, Sony Online and ZDNet)
- Philadelphia Gay News
- PlanetOut Corporation
- Powell's Bookstore
- Salon Magazine
In a seven-page analysis of the bill sent to Congress on October 5, the Justice Department said that the bill had "serious constitutional problems" and would likely draw resources away from more important law enforcement efforts such as tracking down hard-core child pornographers and child predators.
Also, the Justice Department noted, the new law is ineffective because minors would still be able to access news groups or Internet relay chat channels, as well as any website generated from outside of the United States.
"It is our fervent hope," said Barry Steinhardt, President of the Electronic Frontier Foundation, "that Attorney General Reno will concede that the new law is unconstitutional so we can avoid prolonged litigation."
"The First Amendment still stands," he added. "A law that the Justice Department found unconstitutional last week did not suddenly become constitutional this week."
David Sobel, EPIC's Legal Counsel, said that making children the excuse for ill-conceived censorship schemes is poor public policy.
"Congress has demonstrated that, when it comes to the Internet, it's prepared to score easy political points at the expense of constitutional rights."
"I'm confident that the courts will again faithfully apply the Constitution to this new medium," he added. "Let's find ways to protect both kids and the First Amendment."
The three groups continue to jointly sponsor the Blue Ribbon Campaign for Online Freedom of Expression -- first launched in 1996 to mobilize the Internet community against the CDA -- to provide Netizens a platform for voicing their concerns over continuing governmental attempts to censor the Internet. Visitors to the Campaign site can fax Attorney General Janet Reno a "don't enforce the new law" message and join the campaign by exhibiting the Blue Ribbon logo on their own Web sites. More information is available at http://www.eff.org/br.
Attorneys in the case are Ann Beeson, Chris Hansen and J.C. Salyer of the ACLU, Shari Steele of EFF and David Sobel of EPIC. The law firm of Latham and Watkins is assisting the ACLU in the case.
|More information on the case can be found at:|
|A list of plaintiffs:|
|The Justice Department letter to Congress:|