INTERNET FREE EXPRESSION ALLIANCE

American Civil Liberties Union

Re: Hearing on Internet Indecency

February 10, 1998

Members of the Senate Committee on Commerce, Science, and Transportation:

The American Civil Liberties Union (ACLU) is a nation-wide, non-partisan organization of more than 275,000 members dedicated to protecting the principles of freedom set forth in the Bill of Rights to the U.S. Constitution. For more than 75 years, the ACLU has sought to preserve and strengthen the First Amendment as a bulwark against all forms of governmental censorship. The ACLU is a founding member of the Internet Free Expression Alliance (IFEA) and submits this statement to the Committee, along with other members of IFEA, in connection with today's hearing on "Internet Indecency." We urge the Committee to oppose any new regulation of on-line free speech.

Less than one year ago, the Supreme Court struck down the Communications Decency Act, which would have made it a crime to communicate anything "indecent" on the Internet. The Court found that the CDA violated the First Amendment, saying that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

In its historic decision, the Supreme Court also recognized the tremendous speech-enhancing qualities of cyberspace, saying that "the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, and in the absence of evidence to the contrary, we presume government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it."

Today, free speech is under assault again by those who would attempt to regulate the content of speech and access of Internet users to sensitive or controversial information. We believe that any regulations aimed at curbing "indecency" could well cover any speech that is outside the mainstream or potentially offensive in violation of the Supreme Court's landmark decision in Reno v. ACLU.

While the ACLU believes that user based content selection tools may be employed by individuals in their homes, we believe that any government requirement that filtering or blocking tools be used in schools or public libraries violates the First Amendment. Likewise, conditioning disbursement of federal funds to schools on their installation of blocking software would run afoul the First Amendment. Instead, the ACLU has suggested that schools could establish content-neutral rules about when and how students access the Internet.

We are also convinced that Reno v. ACLU supports our conclusion that a federal statute that makes it a crime for an individual or commercial distributor to communicate "indecent" material violates the First Amendment. As the Supreme Court recognized, regulation of "indecent material" may sweep more broadly than necessary and thereby chill the expression of adults, and "indecency has not been defined to exclude works of serious literary, artistic, political or scientific value."

Moreover, the ACLU believes that existing laws already provide the tools necessary to prosecute and investigate the dissemination of constitutionally unprotected speech, like obscenity and child pornography.

The ACLU also urges the Committee to refrain from considering any schemes requiring that "speakers" on the Internet verify the age and identity of all potential recipients of "indecent" material. Such a requirement would destroy the ability of users to browse the Internet anonymously and could prevent users from seeking sensitive information on issues ranging from reproductive health, AIDS, crime victim support, as well as other valuable personal communications.

The ACLU recognizes the deeply felt concerns of many parents about the potential abuse of information on the Internet. The primary responsibility for determining what speech to access should remain with the individual Internet user; and parents should take primary responsibility for determining that to which their children should have access.

We appreciate your consideration of our position on this matter.

Sincerely,

Laura W. Murphy, Director
Gregory T. Nojeim, Legislative Counsel
Cassidy Seghal, Brennan Fellow