Online Censorship in the States
In a sweeping victory for free speech rights in cyberspace, the Supreme Court struck down the Communications Decency Act in Reno v. ACLU in June 1997. The Court granted the highest level of First Amendment protection to the Internet, and cyber-activists are still dancing in the streets.
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But is cyberspace really safe from the censors?
Despite the Supreme Court's ruling, states are busy crafting censorship laws at home. At least thirteen states have passed legislation since 1995. This year, New Mexico has already passed a draconian censorship law, and bills are pending in 10 other states.The ACLU succeeded in striking down three of these state laws so far, but the larger task lies ahead: to secure free speech online in each and every state where this right is threatened.
Our state lawmakers need to understand the Internet -- not gag it.
This year the ACLU is fighting bills in the following states:
Assembly Bill 1793, sponsor Assembly Member Runner. Requires all public libraries that receive state funds to adopt a policy to prohibit minors from accessing harmful matter on Internet terminals at the library.
Assembly Bill 2568, sponsor Assembly Member Novak. Makes it a felony to disclose on "an adult obscenity or child pornography site the name, address, telephone number, or e-mail address of a person under 18."
Senate Bill 670, sponsor Senator Huelskamp. Requires the mandatory use of blocking software by all users on Internet terminals at state-funded public libraries, school districts, and state and local educational institutions, colleges and universities.
Senate Bill 230, sponsor Senator Karem. Requires the mandatory use of blocking software on Internet terminals at public schools.
Senate Bill 850, sponsor Senator Kenney. Requires the mandatory use of blocking software by all users on Internet terminals at public libraries.
Assembly Bill 5395, sponsor Assembly Member Mazzarelli. Criminalizes engaging in sexually explicit conversation with minors over the Internet.
Assembly Bill 6453, sponsor Assembly Member Klein. Requires all public libraries to establish a policy to restrict minors' Internet access to obscene materials.
House Bill 565, sponsor Rep. Terwilleger. Criminalizes the dissemination of material on the Internet that is "harmful to minors."
Senate Bill 2864, sponsor Senator Cicillino. Makes it a felony to transmit by computer "any notice, statement, advertisement, or minor's name, telephone number, [or] place of residence . . . for the purpose of engaging, facilitating, encouraging, offering, or soliciting unlawful sexual conduct and/or any felony or misdemeanor."
House Bill 3353, sponsor Rep. Burchett. Requires the mandatory use of blocking software by all users on Internet terminals at public schools and libraries. Holds Internet service providers strictly liable for the dissemination of "obscene material, child pornography, or pornographic materials harmful to youth."
House Bill 348, sponsor Rep. Marshall. Requires the mandatory use of blocking software by all users on Internet terminals at state-funded libraries. Imposes criminal penalties for communicating online material at libraries that is "harmful to minors."
Assembly Bill 132, enacted 7/97.
Sponsor: Rep. Bladwin.
Requires schools to adopt an Internet access policy regarding student access to sites with material that is harmful to minors.
House Bill 6883, enacted 6/95.
Sponsor: House Committe on Judiciary.
Creates criminal liability for sending an online message "with intent to harass, annoy or alarm another person."
Senate Bill 156, enacted 5/96.
Sponsor: Sen. Burt.
Amends existing child porn law to hold owners or operators of computer online services explicitly liable for permitting subscribers to violate the law.
House Bill 1630, enacted 4/96.
Sponsor: Rep. Don Parsons.
Criminalized the use of pseudonyms on the Net, and prohibits unauthorized links to web site with trade names or logos. Overturned, in ACLU v. Miller
House Bill 76, enacted 3/95.
Sponsor: Rep. Wall.
Prohibits online transmission of fighting words, obscene or vulgar speech to minors, and information related to terrorist acts and certain dangerous weapons.
House Bill 2223, enacted 5/95. Expands child pornography statute to include computer-generated images.
House Bill 575/Senate Bill 585, enacted 7/97 (as part of the compromise education bill). Directs the Commissioner of Education to recommend computer software products to schools in order to block Intgernet access to speech that is indecnet or intended to promote violence.
House Bill 0161, enacted 3/95. Expands child pornography statute to prohibit transmission by computer and posession of computer-generatged child pornographic images.
Senate Bill 127, enacted 3/98. Criminalizes the transmission of communications that depict "nudity, sexual intercourse or any other sexual conduct." The ACLU has vowed to file a legal challenge to the law before it becomes effective on 7/1/98.
Senate Bill 13, enacted 7/97. Creates an action for civil damages against persons who transmit unsolicited advertising over the Internet.
Senate Bill 210E, passed 7/96.
Sponsor: Sen. Sears; Rep. DeStito.
Criminalized the transmission of "indecent" materials to minors. Overturned, in ALA v. Pataki
House Bill 1048, enacted 4/95.
Sponsor: Rep. Perry.
Prohibits online transmission of material deemed "harmful to minors."
House Concurrent Resolution 1097, passed 5/96.
Sponsor: Rep. Paulk
Directs all state agencies, including educational institutions, to remove all illegal obscene materials from their computer systems.
House Bill 7, enacted 3/96.
Sponsor: Rep. Marshall.
Prohibits any government employee from using state-owned computer systems to send or access sexually explicit material. Overturned, in Urofsky v. Allen
Senate Bill 1067, enacted 5/95.
Sponsor: Sen. Calhoun
Expands existing statute to criminalize electronic transmissions of child pornography.
Like the CDA, these state bills raise serious free speech concerns. They all overlook the unique nature of the online medium, and many censor speech that is protected by the Constitution for adults and older minors.
Laws that try to keep adult materials away from minors end up reducing all online content to that which is suitable for children -- the Supreme Court delclared this outcome unconstitutional in Reno v. ACLU. Similarly, the use of blocking software at libraries prevents both adults and teenagers from getting access to valuable speech like sex education materials, abuse recovery discussions, and speech about lesbian and gay issues.
The draconian effect of state censorship bills doesn't stop at state borders. A message you post to the Internet today in New York City could travel the fifty states and the globe by tomorrow. You'd better be careful that the message isn't "indecent" in Oklahoma, "annoying" in Connecticut, or "vulgar" in Georgia.
These state laws pose a cumulative threat to online speech that may be even more powerful than the CDA, because every online user must comply with every state law -- or risk prosecution if their speech is accessed in a state that makes it illegal.
In addition to violating the First Amendment, many of these state censorship laws violate the Constitution's Commerce Clause because they criminalize online conversations that occur entirely outside the state's borders and burden interstate commerce. Earlier in this century, the Supreme Court struck down burdensome state laws that regulated the length of railway trains.
As the court recognized when striking down the NY censorship law in ALA v. Pataki, the Internet is much like the railroad system, because it is used to transport speech and information all over the country. The New York law, like similar state laws, violated the Commerce Clause because it would have required a Texan who posts a web page or message to abide by New York standards, even if no one from New York ever saw the page or read the post.
The court in ALA v. Pataki held that internet users must be protected from "inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether."
The ACLU's nationwide network of local affiliate offices is ready and willing to counter state attacks on your right to speak freely online.
ALA v. Pataki: In a precedent-setting opinion, the court struck down a New York State online "indecency" law because it violated the Commerce Clause of the Constitution, which prohibits states from regulating speech wholly outside their own borders and from imposing inconsistent state burdens on speakers.
ACLU v. Miller: This case struck down on free speech grounds a Georgia state law that made it a crime 1) to communicate anonymously or using a pseudonym on the Internet; 2) to create links to Web sites that use tradenames, trademarks, or logos.
Urofsky v. Allen: This case struck down a Virginia law that forbade state employees -- including university professors -- from using state-owned computers to access or transmit sexually explicit material.