New Cyber-Censorship Law Would Fracture Internet, Experts and Web Owners Testify

January 20, 1999 12:00 am

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PHILADELPHIA– At a three-day hearing opening this morning in federal district court, the American Civil Liberties Union is presenting testimony from website operators who provide information for artists, lesbian and gay men, and the disabled, who all fear that a new federal law will force them to shut down their websites.

These witnesses, as well as experts on Internet commerce and marketing, are scheduled to appear before Judge Lowell A. Reed in the ACLU’s challenge to a second Congressional attempt to censor online free speech. In June 1997, the Supreme Court unanimously struck down the nearly identical censorship provisions of the Communications Decency Act (CDA) in ACLU v. Reno.

ACLU v. Reno II, as the new case is called, was filed by the ACLU, the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) as co-counsel on behalf of 17 individuals and organizations.

The new law, signed by President Clinton as part of the massive omnibus budget bill last October, makes it a federal crime for commercial websites to communicate material considered “harmful to minors.” Penalties include fines of up to $50,000 for each day of violation, and up to six months in prison if convicted of a crime.

In an affidavit filed with the court, Mitchell Tepper of Sexual Health Network said that he feared prosecution under the law because his website provides graphic information on sexual pleasure for people with disabilities or illnesses.

Because the law contains no exception for material that has “educational” or “medical” value for minors, Tepper might have to censor his site for all visitors, including adults — in effect shutting it down altogether.

As the ACLU argued in legal papers, “There can be no serious dispute that when a law deprives adults of constitutionally protected speech, which by definition includes all of the speech at issue in this case, it is unconstitutional even if the purpose is to protect minors.”

Indeed, the ACLU argues, the government’s own witness, Damon Hecker (scheduled to appear in the courtroom later this week) stated at his deposition that he believed some of the pictures on the websites of ACLU plaintiffs ArtNet and Condomania could be considered, in some communities, to be “offensive to minors and without redeeming social value.”

The ACLU has the first half of the three days of trial to present its witnesses, as follows:

  • Expert Witness Donna Hoffman, Associate Professor of Management in the Marketing Division at the Owen Graduate School of Management, Vanderbilt University and the Co-Director of Project 2000, a scholarly research center at the Owen School.
  • Expert Witness Dan Farmer, head of computer security at EarthLink Networks, a large Internet Service Provider (ISP), who will provide expert testimony on the technological burdens of mandatory age verification on Internet content providers and users, and on the Internet as a whole.
  • Plaintiff Christopher Barr, Co-Chairman, Internet Content Coalition (representing major online media companies.
  • Plaintiff Thomas P. Reilly, founder and Chairman, PlanetOut Corporation, a website for the gay, lesbian, bi and transgender community.
  • Plaintiff Mitchell Tepper, a member of the ACLU and operator of
  • Plaintiff Ernest Johnson, Vice President, ArtNet Worldwide Corporation.
  • Lawrence Magid, syndicated columnist and author who writes about computers and the Internet.

ACLU attorneys in the case are Ann Beeson, Christopher Hansen and J.C. Salyer; Stefan Presser, Legal Director of the ACLU of Pennsylvania; David Sobel of EPIC, Shari Steele of EFF, and Catherine E. Palmer, Christopher R. Harris, Michele M. Pyle, Anna Lincoln, and Douglas A. Griffin, as volunteer attorneys from the law firm Latham & Watkins in New York City.

Complete information about the case, including the latest legal documents and transcripts from the Nov. 19 TRO hearing, are available on the ACLU website at

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