IP: EFF Announces Court Challenge

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

CONTACTS:
Lori Fena, Exec. Dir.
415/ 436-933
lori () eff org


Mike Godwin, Staff Counsel
510/ 548-3290    
mnemonic () eff org


Shari Steele, Staff Counsel
301/ 375-8856           
ssteele () eff org


                EFF TO CHALLENGE CENSORSHIP PROVISIONS 
                OF THE TELECOMMUNICATIONS BILL IN COURT




SAN FRANCISCO, Calif., Feb. 7, 1996 -- The Electronic Frontier Foundation 
(EFF) today joins the American Civil Liberties Union and several other 
plaintiffs in challenging the censorship provisions of the 1996 
Telecommunications Act. The challenge is based upon the belief that the 
Act contains overly broad and vague restrictions on constitutionally 
protected speech on the Internet. 


"I see no Constitutional authority at all for this kind of comprehensive 
legislation," said Mike Godwin, staff counsel at EFF. "Proponents of the 
legislation argue that it is necessary to combat poronography on the 
Internet, however the language in the bill goes far beyond this purpose."


The Act overwhelmingly passed both houses of Congress last week and is 
expected to be signed into law Thursday by President Clinton. EFF will be 
both plaintiff and counsel in the complaint to be filed in Pennsylvania 
immediately after the bill is signed. 


The complaint will be grounded primarily in what Godwin terms "three 
affronts to the First Amendment." The three basic arguments are as follows:


* Unconstitutional Expansion of Federal Authority. It is inappropriate 
for the Federal Communications Commission or any other federal agency to 
dictate standards for content in a medium where there is no independent 
Constitutional justification for federal regulation, as there has been in 
the broadcast arena and in certain narrow areas of voice telephone 
service. Like newspapers and bookstores, the Internet is fully protected 
by the First Amendment.


* Vagueness and Overbreadth. The terms the act relies on -- "indecency" 
and "patently offensive" -- have never been positively defined by the 
Supreme Court or the Congress, and so create uncertainty as to the scope of 
the restrictions, necessarily resulting in a "chilling effect" on 
protected speech. Moreover, these terms criminalize broad classes of 
speech that are understood to be protected by the First Amendment, 
including material that has serious scientific, literary, artistic, 
political, and cultural value.


* Failure to Use the "Least Restrictive Means" to Regulate Speech. Even 
if there were Constitutional authority for this legislation and even if 
its terms were neither overly broad nor vague, the censorship 
prescriptions built into this legislation cannot survive the Supreme 
Court's "least restrictive means" test. That is, if otherwise-legal 
government regulation of speech content does not minimize its restriction 
of lawful speech, it fails to qualify as the "least restrictive means" of 
implementing the government's goal. Our Bill or Rights requires that such 
regulations be struck down. In addition to these traditional First 
Amendment challenges, the lawsuit also challenges a provision that may 
infringe on speech concerning abortion when that speech takes place online.
        
In the case of the Internet, the censorship provisions of the 
Telecommunications Reform Act are not the least restrictive means, since 
filtering, rating and labeling technologies and services are already 
available. There already are software tools to help parents shield their 
children from inappropriate material and these tools are vastly more 
flexible and effective than this ill-considered legislation. Unlike the 
censorship provisions, these tools prevent harm to children before it 
happens.


EFF is committed to work to ensure that First Amendment freedoms that 
apply to traditional speech and publication are understood to apply to 
communications in the online world. The organization deplores the fact 
that taxpayer and industry time, money and energy will be consumed by 
this effort, but it is an effort that is essential to preserving the 
Constitutional rights of every American.


Electronic Frontier Foundation
The Electronic Frontier Foundation is a civil liberties organization 
founded to ensure that individual rights are not abridged in the online 
world. Headquartered in San Francisco, the organization seeks to educate 
the public, industry and government on the issues surrounding online 
communications and to shape policies that protect indicidual rights and 
promote individual responsibility. To learn more about the organization 
and today's issues, visit EFF at http://www.eff.org
 
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