At Closing Arguments, ACLU Calls on Court to Protect Free Speech in Cyberspace

May 10, 1996 12:00 am

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PHILADELPHIA– A three-judge panel heard closing arguments today regarding a law that would criminalize free speech in cyberspace. Plaintiffs and defendants each had approximately two hours to make their case and answer questions from the judges.

Much of the government’s argument today hinged on a proposal requiring Internet users to identify so-called indecent or patently offensive words or images with an electronic”tag.” But by the end of the day, government lawyers conceded — under pointed questioning from the judges — that it would be impossible to implement this scheme given the technology currently available.

That concession alone, the ACLU said, could justify granting plaintiff’s motion for a preliminary injunction against the censorship provisions of the Communications Decency Act, which criminalizes making available to minors “indecent” or “patently offensive” speech online.

“It’s about time that the government conceded what the cyberspace community has known all along — that this is an unworkable law,” said Christopher Hansen, who presented oral arguments for the ACLU. “And even if it were feasible, it is constitutionally unthinkable to give the government the power to restrict valuable speech, or to compel people to pejoratively label their speech.”

Government lawyers also acknowledged today that the law criminalizes speech of value — e.g., artistic, literary or medical information — not just “pornography” or other prurient words or images that aren’t covered under existing obscenity laws. In fact, as Hansen pointed out to the Court, Congress made sure that the Communications Decency Act applied specifically to libraries and educational institutions, and rejected several opportunities to make any exceptions for valuable speech.

Such an omission might have been a “legislative craftsmanship problem,” suggested Anthony Coppolino, one of the lawyers appearing for the Department of Justice. But that argument was met with skepticism from the judges.

“The government is basically saying trust me’ when it comes to determining what kind of online words and images will be considered indecent’ or patently offensive,'” said Marjorie Heins, a lawyer on the ACLU v. Reno team. “But they were not able to offer a coherent explanation as to what those terms mean.”

The risk involved to individuals in making such a determination is especially grave when criminal penalties are involved, the ACLU emphasized. The CDA provides for penalties of up to two years in jail and $250,000 in fines.

Addressing this issue, Judge Stewart Dalzell asked the government how it would view an individual such as ACLU plaintiff Kiyoshi Kuromiya, who has vowed to maintain his website no matter what. Kuromiya has testified that his website, the Critical Path AIDS Project, provides “lifesaving” information on safer sex practices — some of it necessary sexually explicit — aimed at reaching teens around the world.

Justice Department lawyer Jason Baron responded that if Mr. Kuromiya didn’t want to comply, “he can take the consequences.”

Overall, the ACLU said, plaintiffs succeeded in making three essential points to the court:

  • The Communications Decency Act is a criminal statute with criminal penalties.
  • The law is aimed specifically at speech that is constitutionally protected.
  • The government’s tagging scheme would force every American to censor him/herself to avoid risk of criminal prosecution.

Plaintiffs also reminded the Court that the censorship law applies not only to websites, but to newsgroups, chat rooms, mail exploders, and other fora that constitute a vital part of the Internet. The ACLU has asserted in its brief — and the government largely conceded today — that various schemes for self-censorship would be unworkable in these environments as well.

At the conclusion of today’s proceedings, Chief Judge Dolores K. Sloviter said that the Court would issue a ruling “in due course.” Under expedited provisions, any appeal on rulings regarding the new censorship law will be made directly to the U.S. Supreme Court. ACLU v. Reno was filed the day the Communications Decency Act was signed into law. A second case, brought by the American Library Association, was consolidated with ACLU v. Reno on February 26, 1996.

Lawyers for the ACLU appearing before the judges are Christopher Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of Pennsylvania. Attorney Bruce J. Ennis presented oral arguments today on behalf of the ALA/CIEC coalition.

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