ACLU v. Reno II: Appeals Court to Hear Arguments in Second Battle Over Federal Internet Censorship Law

November 2, 1999 12:00 am

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NEW YORK — In oral arguments this Thursday before a federal appeals court in Philadelphia, the American Civil Liberties Union will once again square off against government lawyers determined to defend Congress’s second unconstitutional criminal ban on Internet free speech.

The case moves to the appeals court level nearly one year after the “Child Online Protection Act” was passed by Congress on Oct. 21, 1998. Ruling last February, District Court Judge Lowell A. Reed found that the ACLU was likely to succeed on its claim that the law “imposes a burden on speech that is protected for adults.”

The Act makes it a federal crime to use the World Wide Web to communicate “for commercial purposes” material considered “harmful to minors,” with penalties of up to $150,000 for each day of violation and up to six months in prison.

“The constitutional flaws in this law are identical to the flaws that led the Supreme Court to strike down Congress’s earlier attempt at Internet censorship,” said Ann Beeson, an ACLU national staff attorney who will be arguing the case on behalf of 17 groups and individuals.

“Despite the government’s claims that the new law is aimed at only commercial pornography, we think the appeals court will agree with Judge Reed’s finding that the law restricts a broad range of speech that is valuable for adults,” Beeson added, noting that speech at issue includes sexual advice columns, discussion boards on gynecology, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, among others.

In its latest brief before the court, the ACLU, along with co-counsel Electronic Privacy Information Center and Electronic Frontier Foundation, makes the following arguments:

  • The law requires website owners to install a registration system that would force adults to disclose their identity in order to access protected speech — such as, a site that offers sexuality information for people with disabilities, illness, or other health-related problems.
  • Experience has shown that socially valuable commercial websites cannot survive a registration requirement because it would deter adults from accessing protected online speech;
  • Because the law purports to protect only material that would have “serious literary, artistic, political or scientific value for minors,” adults have a legitimate fear of being prosecuted for speech that has serious social value for adults but not minors;
  • As the government’s own Justice Department warned, the law is ineffective because it does not protect children from “harmful to minors” material on foreign web sites, non-commercial websites or through chat rooms and other non-Web based speech online.
  • Voluntary use of blocking software is a “less restrictive means” of fulfilling the law’s intent; government can also vigorously enforce existing criminal laws against obscenity and child pornography.

A ruling by the Third Circuit could be appealed by either side to the U.S. Supreme Court. However, while the Supreme Court was required by a special legal provision to accept an appeal in ACLU v. Reno I, the ACLU’s first challenge, no such requirement was written into the current Internet law. Any appeal to the Justices would therefore be accepted solely at the High Court’s discretion.

Two related ACLU challenges to state “harmful-to-minors” laws in New Mexico and Michigan — both successful in the lower courts — are currently pending before separate appeals courts. The ACLU argued the New Mexico case before the Tenth Circuit Court of Appeals on Sept. 21, and a briefing schedule has not yet been set by the Sixth Circuit for the Michigan case.

The case is ACLU v. Reno II, No. 99-1324. Thursday’s hearing, set for 2:00 p.m., will take place before a three-judge panel of the Third Circuit Court of Appeals, comprised of Judge Theodore Alexander McKee, Judge Leonard I. Garth, and Judge Richard Lowell Nygaard. Each side will be allotted 25 minutes for argument (without witnesses or testimony), and the government can use a portion of its argument time for rebuttal. The judges will likely ask questions during and directly following the argument period.

The 17 plaintiffs represented in ACLU v. Reno II are: American Civil Liberties Union (on behalf of all its members including Nadine Strossen, Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell Tepper and David Bunnell); A Different Light Bookstore; American Booksellers Foundation for Free Expression; ArtNet; The Blackstripe; Condomania; 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; OBGYN.NET; Philadelphia Gay News; PlanetOut Corporation; Powell’s Bookstore; RIOTGRRL; Salon Magazine; and

Two friend-of-the-court briefs were filed by the U.S. Chamber of Commerce and the Internet Education Foundation and by a coalition of 19 organizations including the American Society of Newspaper Editors, the National Association of College Stores, the Recording Industry Association of America and the Society for Professional Journalists

ACLU attorneys in the case are Ann Beeson and Christopher Hansen of the national office and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Catherine Palmer, Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin and Kate Bolger are volunteer attorneys from the law firm Latham & Watkins in New York City; David Sobel of EPIC and Shari Steele of EFF are co-counsel.

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