US Interest -- ACLU Memorandum in the CMU case

[David Farber <farber () central cis upenn edu>]

I hope you all excuse the size of this posting. I believe
this mkaes a number of points that is broader than just the
CMU case. djf




MEMORANDUM


TO:  FACULTY SENATE, CARNEGIE MELLON UNIVERSITY
     STUDENT COUNCIL, CARNEGIE MELLON UNIVERSITY


FROM:  VIC WALCZAK, EXECUTIVE DIRECTOR, GREATER PITTSBURGH CHAPTER
       MARJORIE HEINS, DIRECTOR, ARTS CENSORSHIP PROJECT


RE:  LEGAL ANALYSIS OF CMU'S POTENTIAL LIABILITY FOR MAINTAINING
     SEXUALLY EXPLICIT BULLETIN BOARDS THAT CONTAIN OBSCENE
     MATERIAL.


DATE: NOVEMBER 10, 1994




        The Americal Civil Liberties Union ("ACLU") [1] has prepared
this legal memorandum at the request of numerous CMU faculty and
student.


        Carnegie Mellon University administrators have attempted to
justify their decision to censor sexually explicit news groups on the
Internet by claiming that a failure to do so leaves them susceptible
to criminal prosecution for violationg Pennsylvania's obscenity
law. [2]  The ACLU's review of relevant constitutional and statutory
law leads us to conclude that the University's fears are unfounded.
In sum, the assertion that CMU is legally constrained to censor
sexually explicit news groups that may contain obscene material is a
red herring.


        The vast majority of expression is protected by the First
Amendment to the United States Constitution, and its corollary under
the Pennsylvania Constitution, Article I, 7.  Art, entertainment,
literature and information (graphics and text in contemporary
discussion) enjoy constitutional protection. [3]  An exception to
constitutionally protected speech is obscenity. [4]  The requisite
analysis is known as the _Miller_ test. [5]


        Most sexually explicit imagery is constitutionally protected.
The United States Supreme Court has recognized that sex is "a great
and mysterious motive force in human life, and has indisputably been a
subject of absorbing interest to mankind through the ages." [6]
Obscenity legally cannot be equated with sexually explicit imagery,
nudity or eroticism.  Only sexually explicit material satisfying the
narrow three-part _Miller_ test can be censored or criminalized.


        Given the narrow definition of obscenity, it is important to
recognize what material is not, and legally cannot be, deemed obscene.
Material that provokes "normal, healthy sexual desires" is not obscene
and, therefore, is constitutionally protected. [7]  Prurience, within
the meaning of _miller_, excludes material that "taken as a whole, dos
no more than arouse `good, old fashioned, healthy' interest in sex."
[8]  Material that may be indecent [9] or offensive [10] is also not
obscene.  As the Court has noted, "[d]issemination of ideas -- no
matter how offensive to good taste -- on a ... university campus may
not be shut off in the name alone of `conventions of decency.'" [11]
Finally, any material with serious literary, artistic, scientific or
political value cannot be obscene.


        Recognizing that only a very small proportion of all
expression is unprotected by the Constitution, the University
nevertheless seems to believe that it could be prosecuted for
violating the obscenity statute by permitting some access to a
bulletin board that might later be adjudged to have disseminated
obscene material.  The University is wrong as a matter of both
constitutional and statutory law.


        Pennsylvania's obscenity law expressly exempts "any library of
any school, college or university..." from its reach. [12]  The
Legislature recognized that universities and libraries have special
protections as providers of access to knowledge and that academic
freedom and free expression should not be chilled by the specter of
criminal or civil prosecution under the obscenity law.


        While some of the University's connections to the Internet may
not be housed in the library building, it is fully entitled to
protection offered by the exemption.  By providing wide access to the
Internet, the University is, in effect, functioning as an electronic
librarian.  As technology changes the ways in which we store and
access information, the digital library of the next century will bear
far greater resemblance to the Internet than to today's brick and
mortar constructs.


        Moreover, successful prosecution of any obscenity case
requires the government to prove specific intent, i.e., "scienter,"
(knowledge of what a particular work contained). [13]  Pennsylvania
obscenity law expressly limits liability to material which is
"reasonably susceptible of examination by the defendant." [14]  Given
the millions of continual postings on the Internet, each and every one
of them is not "reasonably susceptible of examination," and CMU could
not be adjudged to have the necessary scienter as to any material that
might later be found obscene.  Certainly, information on safe sex, no
matter how graphic, would fit within the protection.


        What if, however, this analysis is wrong and it is determined
ultimately that the statutory exemption for libraries is inapplicable
to the Internet and that CMU is otherwise subject to prosecution for
not removing the sexually explicit groupings?


        The University is nevertheless shielded from successful
prosecution by principles of constitutional due process. [15]  When it
is unclear whether a criminal statute applies in a given situation,
due process requires that court's construe the law "in favor of life
and libery." [16]  Application of a penal statute is unconstitutional
unless the law is "sufficiently explicit to inform those who are
subject to it, what conduct on their part will render them liable to
its penalties." [17]  The Pennsylvania Legislature has codified,
through rules of statutory interpretation, this due process
requirement of fair notice. [18]


        No academy of higher education in Pennsylvania has ever been
prosecuted for failing to censor material that might potentially be
adjudged obscene on the Internet.  To the ACLU's knowledge, no such
prosecution has occurred anywhere in the country.  When the
Pennsylvania Legislature adopted the current obscenity law in 1977, it
did not, and could not, have contemplated its application to the
Internet.  The Internet did not exist.  Absent clear legislative
intent and prior prosecutions, the due process principle of fair
notice affords the Univerisity a large and virtually impregnable
shield against any obscenity conviction. [19]


        Even when the relevant law catches up with contemporary
problems posed by new technology, First Amendment jurisprudence
suggests that broad immunity will be given to Bboard conduits or
distributors, such as CMU.  Bboards are akin to a public forum.  They
may well be the first truly democratic free speech form whereby anyone
with a terminal can be heard.  Plainly, a public forum proprietor's
duties to facilitate censorship-free speech cannot easily coexist with
potential liability for the content of that speech.  Even without an
explicit grant of statutory immunity, proprietors of a public forum,
like other distributors of or conduits for speech, cannot be held
liable for program content.  The University can no more be liable for
the content of every Internet communication than it could for the
content of every book in its libraries.


        The Supreme Court has consistently affirmed this fundamental
principle. [20]  The ACLU has been able to identify only one analogous
published decision involving computer bulletin boards. [21]  In that
case, the federal district court held that a computerized data library
that acted as a conduit could not be held liable for including
defamatory material. [22]  The court's application of First Amendment
principles is instructive:


        CompuServe's CIS product is in essence an electronic,
for-profit library that carries a vast number of publications and
collects usage and membership fees from its subscribers in return for
access to the publications.  * * * While CompuServe may decline to
carry a given publication altogether, in reality, once it does decide
to carry a publication, it will have little or no editorial control
over the publication's contents.  This is especially so when
CompuServe carries the publication as part of a forum that is managed
by a company unrelated to CompuServe.  * * * CompuServe has no more
editorial control over such a publication than does a public library,
book store, or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially
defamatory statements than it would be for any other distributor to do
so.  "First Amendment guarantees have long been recognized as
protecting distributors of publications .... Obviously, the national
distributor of hundreds of periodicals has no duty to monitor each
issue of every periodical it distributes.  Such a rule would be an
impermissible burden on the First Amendment." [23]


The court's characterization of CompuServe as a library not only
heightens First Amendment protection for CMU, but also lends further
credence to the applicability of Pennsylvania's statutory exemption to
obscenity for libraries.


        The University's attempt to justify the censorship similarly
cannot be countenanced on the theory that minors must be protected.
First of all, minors need not be shielded from all sexually explicit
material.  Rather, the courts have applied a modified _Miller_ test to
determine what is "obscene" as to minors:  the material must appeal
predominantly to minors' "shameful or morbid" (not healthy) interest
in sex, and must lack any serious literary or other value. [24]
Although some material on the Internet might meet this standard, the
University would not be criminally liable if a seventeen-year-old
freshman happened to access it, for the reasons set forth above, i.e.,
lack of scienter, the statutory library exemption, and the rule that
the distributor in the University's position could not be expected to
monitor content.


        Given that most of the people accessing CMU's database are
adults, the University should not "reduce the adult population ... to
reading only what is fit for children." [25]  Just as Pennsylvania law
does not obliigate the University library and bookstore, or for that
matter literature classes, to purge all sexuallty explicit material
because there may be minors on campus or minors may access the
imagery, CMU should not do so with the Internet. [26]


        In conclusion, CMU cannot credibly argue that it is liable to
criminal prosecution for maintaining sexually explicit material on
computers.  The Administration's groundless legal argument should not
influence the discussion of CMU's proposed action.  The discussion
should, properly, focus on whether CMU ought, as a matter of policy,
to censor its students' access to ideas and information.


        Of all places, universities should neither tolerate nor engage
in censorship of any views, no matter how offensive or distasteful.
As the Supreme Court has stated, universities are "peculiarly the
marketplace of ideas," where the values of academic and artistic
freedom are paramount. [27] "The essentiality of freedom in the
community of American universities is almost
self-evident. ... Teachers and students must always remain free to
inquire, to study and to evaluate, to gain new maturity and
understanding, otherwise our civilization will stagnate and die." [28]


        The ACLU hpoes that this legal analysis is helpful to your
discussion.  If you have any questions, we would welcome the
opportunity to answer them.






                               ENDNOTES




1.  The ACLU is a national, non-partisan, non-profit organization
dedicated exclusively to the preservation and promotion of civil
liberties.  The organization nubers 300,000 members, approximately
10,000 of whom reside in Pennsylvania.  Many ACLU members serve on
CMU's faculty.  The ACLU has appeared in hundreds of cases before the
United States Supreme Court in both representational and amicus curiae
capacities.  The ACLU is presently involved in countless civil
liberties cases throughout the United States.


2.  18 PA.C.S.A %5903.


3.  _Erznoznick v. City of Jacksonville_, 422 U.S. 205 (1975);
_Jenkins v. Georgia_, 418 U.S. 153 (1974); _Kingsley Corp. v. Regents
of Univ. of N.Y._, 360 U.S. 684 (1959); _Joseph Burstyn,
Inc. v. Wilson_, 343 U.S. 495 (1952).


4.  _Miller v. California_, 413 U.S. 15 (1973).


5.  In order for a work to be judged "obscene," there must be proof of
all three of the following factors:


        1.  The average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to the
prurient interest;
        2.  Measured by contemporary community standards, the work
depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
        3.  The work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.




_Miller v. California_, 413 U.S. 15, 25 (1973).  Pennsylvania's
obscenity statue tracks, as it must, the _Miller_ test.  18 Pa.C.S.A
%5903.


6.  _Roth v. United States_, 354 U.S. 476, 487 (1957).


7.  _Brockett v. Spokane_, 472 U.S. 491, 496-98 (1985).


8.  _Ibid_.


9.  _Sable Communications v. FCC_, 492 U.S. 115, 125 (1989).
"Indecency" is a term develped in the context of FCC regulation of
broadcast radio and television, and has no legal application to
computer communications.  Indeed, in _Sable_, the Supreme Court held
that an attempt by Congress to ban "indecency" from telephone
communications violated the First Amendment.


10.  "[T]he fact that society may find speech offensive is not a
sufficient reason for suppressing it.  Indeed, if it is the speaker's
opinion that gives offense, that consequence is a reason for according
it constitutional protection.  * * * If There is a bedrock principle
underlying the First Amendment, it is that the Government may not
prohibit the expression of an idea simply because society find the
idea itself offensive or disagreeable."


_Simon & Schuster v. New York Crime Victims Bd._, ___ U.S. at ___, 112
S. Ct. 501, 508 (1991) (citations omitted):


11.  _Papish v. Board of Curators of the Univ. of Missouri_, 410
U.S. 667, 670 (1973).


12.  The exemption, in its entirety, reads as follows:


Nothing in this section shall apply to any recognized historical
society or museum accorded charitable status by the Federal
Government, any county, city borough, township or town library, any
public library, any library of any school, college or university or
any archive or library under the supervision and control of the
Commonwealth or a political subdivision.  18 Pa.C.S.A. %5903 (j).


13.  _Smith v. California_, 361 U.S. 147 (1959).


14.  18 Pa.C.S.A %5903 (b) (definition of "Knowing").


15.  U.S. Const. Amend. XIV, %1, Pa. Const. Art. I, %9.


16.  _Commonwealth v. Glover_, 156 A.2d 114, 116 (1959) (citation
omitted).  _See also_, _Rose v. Locke_, 423 U.S. 48, 49 (1975) ("It is
settled that the fair warning requirement embodied in the Due Process
Clause prohibits the States from holding an individual criminally
responsible for conduct which he could not reasonably understand to be
proscribed.").


17.  _Commonwealth v. Heinbaugh_, 354 A.2d 244, 246 (Pa. 1976),
_citing Connally v. General Construction Co._, 269 U.S. 385 (1926).


18.  The rule of strict construction is codified at 18 Pa.C.S.A %105
(statutes "shall be construed according to the fair import of their
terms.").  One of the purposes of this rule is to protect the accused
from dubious prosecutions.  _See e.g._, _Commonwealth v. Hill_, 391
A.2d 1303 (1978).  In addition, the rule of lenity establishes that
even "when the language is susceptible of differing constructions it
shall be interpreted to further the general purposes stated in this
title and the special purposes of the particular provision involved."
18 Pa.C.S.A %105.  Among those "general purposes" is "to safeguard
conduct that is without fault from condemnation as criminal."  18
Pa.C.S.A. %104 (2).


19.  The ACLU has used this due process principle successfully to
defend pregnant mothers, alleged to have pre-natally transmitted drugs
to their fetuses through the umbilical cord, from prosecutions under
long-standing controlled substance delivery and chld endangerment
laws.  The highest court in every state to consider the matter has
dismissed such prosecutions precisely because application of the
statutes was unclear and unprecedented and, therefore, the proposed
application violated due process.  In February, 1994, the Pennsylvania
Superior Court dismissed such a prosecution, concluding that "it is
not reasonable nor appropriate for us to read the three statutes here
involved in a way which would, for the first time in this
jurisdiction, give recognition to theories of criminal liability not
heretofore judicially or statutorily acknowledged."  _Commonwealth
v. Kemp_, No. 114 Pittsburgh 1993, slip op. at 6 (Pa. Super. February
22, 1994).


20.  _Farmers Educational & Cooperative Union v. WDAY, Inc._, 360
U.S. 525, 533-35 (1959) (Broadcasters required to carry candidate
statements cannot be liable for the content of those statements);
_Smith v. California_, 361 U.S. 147, 152-54 (1959) (book retailers and
distributors cannot be held liable for content of books absent
scienter; otherwise, self-censorship would impede "distribution of all
books, both obscene and not obscene.")  _See also_, _Auvil v. CBS 60
Minutes_, 800 F. Supp. 928, 931-32 (E.D. Wash. 1991) (no broadcaster
"conduit" liability in abscence of fault); and _Lewis v. Time_, 83
F.R.D 455, 463-464 (E.D. Cal. 1979) (distributor not liable for merely
disseminating article).


21.  _Cubby, Inc. v. CompuServe, Inc._, 776 F. Supp. 135 (S.D.N.Y
1991).


22.  _Ibid_.


23.  _Ibid_. at 140.


24.  _Erznoznick_, 422 U.S. at 212 n. 10; _Ginsburg v. New York_, 391
U.S. 971 (1968); _American Booksellers Association v. Webb_, 919 F.2d
1493, 1503 (11th Cir. 1990); _American booksellers Association
v. Virginia_, 822 F.2d 125, 127 n. 2 (4th Cir. 1989); 18
Pa.C.S.A. %5903 (c)-(e).


25.  _Butler v. Michigan_, 352 U.S. 380, 383 (1956).  In _Butler_, the
Court rejected the State's claim that it may "quarantin[e] the general
reading public against books not too rugged fror gown men and women in
order to shield juvenile innocence."  The Court characterized the
State's argument as follows:  "Surely, this is to burn the house to
roast the pig."  _Id._


26.  The ACLU does not address what, if any restrictions the
University might arrange for access by high school or younger age
students.


27.  _Keyishian v. Board of Regents_, 385 U.S. 589, 603 (1967)


28.  _Sweezy v. New Hampshire_, 354 U.S. 234, 250 (1957).