Government Witness: "Censor First, Ask Questions Later;" Plaintiffs Waive Rebuttal of Government Testimony; Oral Arguments Moved Up to Friday, May 10th

April 15, 1996 12:00 am

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Government Witness: “Censor First, Ask Questions Later;” Plaintiffs Waive Rebuttal of Government Testimony; Oral Arguments Moved Up to Friday, May 10th


PHILADELPHIA–Testifying on the last day of trial in ACLU v. Reno, government witness Dan Olsen told a three-judge panel that the best way to comply with the censorship law would be to block all possibly “indecent” words and images, until “questionable” material could be reviewed and labeled for adult consumption. That process could take weeks or months, he told the court.

Using this triage approach, as Olsen described it, Internet content providers would have to virtually shut down their sites until they could complete the task of self-censoring using his “-L18” system. The proposed system requires content creators to determine whether their words or images are “indecent” or “patently offensive,” and if so attach an electronic “-L18” label.

Olsen, a professor of computer science at Brigham Young University, returned to the court today conclude his testimony in the last day of a trial that could well determine the future of free speech in cyberspace. The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge provisions of the Communications Decency Act that criminalize making available to minors “indecent” or “patently offensive” speech.

“When the government forces you to censor your expression of words or images or face jail time, that’s a pretty clear violation of the First Amendment,” said Christopher Hansen, who conducted cross-examination of the witness for the ACLU.

Chief Judge Dolores K. Sloviter questioned Olsen closely on the effect the censorship scheme would have on Internet sites containing “a great deal of material not offensive to anybody,” that would have to be blocked for review. “Can you think of any time in history when we have blocked access to material in advance?” Judge Sloviter asked.

The judges also wondered how the labeling scheme would apply to speech in other Internet forums such as e-mail or chat rooms. Posing a hypothetical question, Judge Stewart Dalzell asked Olsen whether an 18-year-old discussing the censorship law in a chat room with minors would have to “label” a phrase such as “Fuck the CDA” before transmitting his words. Yes, Olsen replied, if he wanted to be protected from prosecution.

In his testimony on Friday and today, Olsen acknowledged that PICS (Platform for Internet Content Selection), an alternate system described by plaintiff witnesses, would allow parents to control their children’s Internet viewing without requiring broad censorship.

According to MIT expert Dr. Albert Vezza, who testified Friday on behalf of plaintiffs, expected industry-wide acceptance of the PICS standard will enable any number of third-party organizations such as the PTA, the Christian Coalition or the Boy Scouts of America to rate content for parents and other Internet users. As early as this summer, he said, Microsoft Corporation plans to issue software embedded with the PICS protocol, and other corporations are expected to follow suit.

In addition, plaintiff lawyers pointed out, unlike Olsen’s “-L18” system, PICS would allow users to block all “untagged” Internet content from the receiving end, instead of requiring the providers to censor their material. This feature is especially important because overseas Internet providers are not subject to U.S. laws.

By contrast, said ACLU lawyer Chris Hansen, user empowerment software like PICS can block a site regardless of its origin. “The government’s proposal — and the law itself — does not take into account the global nature of the medium,” Hansen said. “If the censorship law is upheld, minors will still be able to access any foreign site without restriction.”

The key to the PICS system, and to keeping the Internet a free medium for users of all ages, Hansen added, is parental empowerment. “While there will always be objectionable material in any communications forum, the responsibility — and the tools — for guiding children’s interaction should remain with the parents.”

At the conclusion of today’s trial phase, plaintiff’s lawyers informed the court that they would waive the option to rebut the government’s testimony. After a short scheduling conference, oral arguments were moved up to Friday, May 10, instead of June 3, and the April 26 rebuttal day was canceled.

Under procedures for oral arguments, each side will have two hours to make its case and answer questions from the judges. Plaintiffs and defendants are required to submit briefs and proposed findings of fact and conclusions of law to the judges by April 29.

After a ruling by the three-judge panel, under expedited provisions, any appeal would be made directly to the U.S. Supreme Court.

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.

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