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IP: CIEC Trial Bulletin 5/12/96 - CDA Hearings Conclude,
From: Dave Farber <farber () central cis upenn edu>
Date: Sun, 12 May 1996 16:29:26 -0400
_______ _ _ ____ _ _ _ _ |__ __| (_) | | | _ \ | | | | | (_) | |_ __ _ __ _| | | |_) |_ _| | | ___| |_ _ _ __ | | '__| |/ _` | | | _ <| | | | | |/ _ \ __| | '_ \ | | | | | (_| | | | |_) | |_| | | | __/ |_| | | | | |_|_| |_|\__,_|_| |____/ \__,_|_|_|\___|\__|_|_| |_| Citizens Internet Empowerment Coalition Trial Update No. 9 Pre-Trial Update - April 13, 1996 5:30 pm ET ----------------------------------------------------------------- http://www.cdt.org/ciec/ ciec-info () cdt org ----------------------------------------------------------------- CIEC UPDATES intended for members of the Citizens Internet Empowerment Coalition. CIEC Updates are written and edited by the Center for Democracy and Technology (http://www.cdt.org). This document may be reposted as long as it remains in total. ------------------------------------------------------------------ ** 40,000 Netizens Vs. U.S. Department of Justice. ** * The Fight To Save Free Speech Online * Contents: o Hearings Conclude in CDA Challenge - Decision Expected Soon * A Newspaper Decency Act? o How To Unsubscribe from this list o More Information on CIEC and the Center for Democracy and Technology ---------------------------------------------------------------------- Quote of the Day: "You are asking us to re-write the statute, to put words in the statute that aren't there. We want you to tell us what words to put in" -- Judge Doloris Sloviter, to DOJ lead counsel Tony Coppolino during a series of questions on the government's interpretation of the term "indecency" HEARINGS CONCLUDE IN CDA CHALLENGE -- DECISION EXPECTED SOON Hearings in the historic legal battle over the future of freedom of speech on the Internet concluded Friday (5/10) with both sides presenting final oral arguments before a three judge panel in a Philadelphia Federal Court. A decision in the case is expected within the next month, after which either side can appeal directly to the Supreme Court. As expected, the Government lawyers argued that the court should read the Communications Decency Act's (CDA) prohibition of "indecent" and "patently offensive" materials online to apply only to hard-core, sexually explicit material. The Government asked the court to essentially create a new definition of the term "indecent", designed specifically for the Internet. While DOJ lead attorney Tony Coppolino stated that the government believes the term "indecent" in the CDA should have the same meaning as used by the FCC , and in the Pacifica and Sable cases, Coppolino also repeatedly argued that the term "indecent" under the CDA would not apply to serious works of fiction, art, or other materials with social value. This argument is inconsistent with every application of the "indecency" standard in past court cases and regulatory proceedings before the FCC. The Government summed up its case by arguing that the content regulations imposed by the CDA, combined with parental control technologies, are necessary in order to protect children from sexually explicit material on the Internet. The Government argued that technology alone will not protect children from sexually explicit material on the Internet. As DOJ lawyer Jason Baron stated, the law must "put the burden on content providers to do something" to prevent minors from accessing objectionable material online. CIEC lead counsel Bruce Ennis urged the court to overturn the Communications Decency Act on the grounds that the law is overly broad, unconstitutionally vague, and effectively restricts all speech on the Internet to that which is appropriate only for children. Ennis further argued that the CDA's defenses to prosecution are not available to the vast majority of speakers on the Net. While commercial content providers may be able to utilize credit card age verification schemes, non-commercial speakers, who comprise the majority of speakers on the Internet, have no way of complying with the statue. Ennis argued that the CDA is "substantially overboard", meaning that in most circumstances there is simply no way for Internet users to comply with the law. "Substantial over breadth", one of several standards the CIEC has asked the court to consider in evaluating the constitutionality of the CDA, requires that the court consider whether the law is overly broad in a "substantial number" of its applications. In this case, Ennis argued that the CDA can only be considered constitutional in one application: commercial content providers who charge for their services. In every other application, including posts to Usenet Newsgroups, IRC or other online chat forums, electronic mail sent to public mailing lists, and non-commercial web sites, the defenses to prosecution under the CDA are not available to Internet users. As a result, non-commercial speakers on the Internet only have one way to avoid potential liability under the CDA - self censorship. As expected, the Judges adjourned the Hearing without reaching a decision, but promised that a decision would be forthcoming. CDT will provide an update as soon as a decision is reached (check http://www.cdt.org/ciec/) for updates). A decision is expected before the end of May. RECENT FBI 'NON-INVESTIGATION' OF COMPUSERVE BECOMES A MAJOR ISSUE In what is perhaps the most interesting twist yet in this case, the recent newspaper reports that the FBI was considering an investigation of Compuserve for potential violations of the CDA were raised by CIEC lawyers and Judge Dalzell. The reports were sparked by calls from the conservative American Family Association, though the FBI and Justice Department have since clarified that no investigation is underway. During the presentation of Government attorney Jason Baron, Judge Dalzell asked numerous questions about a recent letter from Assistant Attorney General Keene to the Judge in a parallel CDA challenge in New York. In the letter, Keene states that labeling content, registering a URL with a "URL registry", and using content selection standards would be considered "substantial evidence" that a defendant has complied with the defenses under the CDA. The Government's position that labeling content would only be considered "substantial evidence" and not an outright defense to prosecution (as a literal reading of the CDA suggests) raises serious questions about the ability of any content provider to comply with the CDA, and adds further weight to the CIEC arguments that the CDA is overly broad and unconstitutionally restrictive. THE NEWSPAPER DECENCY ACT? In numerous, often pointed questions throughout the hearing, the Judges pressed the government on whether the Internet is, as the CIEC and ACLU cases argue, a unique communications technology distinct from traditional broadcast mass media. At one point Judge Dalzell, holding up a copy of the Philadelphia Inquirer, noted that the previous day's issue contained a graphic image of a man being shot on the front page above the fold. Dalzell said that his 10 year old son had seen this picture while looking for the scores from the previous day's Philadelphia Phillies game, Dalzell was concerned that the Image was not appropriate for a young child to view. Dalzell asked Coppolino if Congress were to pass a "Newspaper Decency Act" requiring that Newspapers publish graphic images below the fold (so that minors do not inadvertently see them) would the law be unconstitutional. When Coppolino agreed that the hypothetical Newspaper Decency Act would indeed be unconstitutional, Dalzell asked if Congress similarly has the power to control the Internet. Coppolino argued that the Internet is much more similar to broadcast mass media than print. Coppolino further argued that the Internet is a pervasive medium, and that because the Internet can deliver text, graphics, video and sound, and that because of this convergence the Internet is much closer to the broadcasting model than it is to the print medium. The question of the nature of the Internet and its similarity to the print or broadcast medium is a critical issue in this case. If the Judges find that the Internet is substantially different from broadcast mass media, they are more likely to rule that the broadcast-style content regulations imposed by the CDA are unconstitutional. Although Judge Dalzell revealed little about this position on this issue during the hearing, his hypothetical questions were none-the-less encouraging. WHAT IS INDECENT? While the judges asked pointed questions of both sides, the most piercing questions were reserved or DOJ lead attorney Tony Coppolino on the meaning of the term "indecent". Before Coppolino had finished the first sentence of his opening statement, he was interrupted by Judge Doloris Sloviter, who asked, "What is the Government's position about what the statute covers?". Sloviter was referring to the Government's position on the meaing of the terms "indecent" and "patently offensive", which is a critical question in the case. Coppolino responded that the government believes the terms refer to sexually explicit material which lacks any serious literary, artistic, social or scientific value. Judge Solviter responded by asking whether excerpts from the Broadway play "Angles in America" (which deals with AIDS), might be considered indecent in some jurisdictions. Coppolino responded that "it is possible that some material with value might be considered 'indecent'", and that "the application depends on the communication and its context". A skeptical Judge Stewart Dalzell wondered aloud whether the definition of the term would be left up to the 94 US attorneys throughout the United States, each with a potentially different interpretation, citing the example of the controversial photographer Robert Maplethorp, whose exhibit was celebrated in Philadelphia and subsequently picketed in Cincinnati Ohio several years ago. Dalzell noted that a Web site at the University of California Riverside has placed an explicit Maplethorp photograph online, and asked Coppolino what advice he would give the University if he were their lawyer. Coppolino responded that he would not necessarily advise the University of take the materials off-line, and suggested that they could further protect themselves from liability under the CDA by providing the ability for parents to block the site. Judge Sloviter appeared unconvinced with Coppolino's explanation, stating, "Isn't there a chill factor [here]? This is a criminal statute. People are entitled to know what they can be prosecuted for. If people have to keep running to their lawyers, isn't that a problem?" NEXT STEPS, POINTERS TO OTHER INFORMATION Due to the breadth of topics covered at Friday's hearing, only a small portion of the issues raised are covered in this trial bulletin. The full transcript form the hearing will be available at the CDT/CIEC web site in the next few days. Please continue to visit http://www.cdt.org/ciec. An announcement of the Courts decision will also be posted to this list and on the CIEC web site as soon as it is available. In addition to the text of the original CIEC complaint, transcripts of the first 5 days of hearings, and other background information, several new CIEC court filings, including our post trial brief, are available at the CIEC web site. ----------------------------------------------------------------------- (2) How to Unsubscribe From This List As CIEC members, you have been invited to join this list in order to receive news updates and other information relevant to the CIEC challenge to the Communications Decency Act. To subscribe, visit http://www.cdt.org/ciec and join the Coalition. If you ever want to remove yourself from this list, send email to ciec-members-request () cdt org with 'unsubscribe ciec-members' in the SUBJECT LINE (w/o the 'quotes'). Leave the body of your message blank. ----------------------------------------------------------------------- (3) For More Information For more information on the CIEC challenge, including the text of the complaint and other relevant materials: * World Wide Web -- http://www.cdt.org/ciec/ * General Information about CIEC -- ciec-info () cdt org * Copy of the Complaint -- ciec-docs () cdt org * Specific Questions Regarding the Coalition, incuding Press Inquiries -- ciec () cdt org * General information about the Center for Democracy and Technology -- info () cdt org -- end ciec-update.11 5/12/96
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- IP: CIEC Trial Bulletin 5/12/96 - CDA Hearings Conclude, Dave Farber (May 12)