INTERNET FREE EXPRESSION ALLIANCE
Joint Statement for the Record on
Legislative Proposals to Protect Children from Inappropriate
Materials on the Internet
Submitted to the
Subcommittee on Telecommunications, Trade and Consumer Protection
Committee on Commerce
United States House of Representatives
September 11, 1998
The undersigned organizations respectfully submit this statement to express our concerns about legislation pending before the Committee that could adversely affect freedom of expression on the Internet.
We are united in our belief that the Internet is a powerful and positive forum for free expression. It is a venue where "any person can become a town crier with a voice that resonates farther than it could from any soapbox," as the U.S. Supreme Court has observed. Internet users, online publishers, library and academic groups and free speech and journalistic organizations share a common interest in opposing the adoption of laws, techniques or standards that could limit the vibrance and openness of the Internet as a communications medium.
Last year, the Supreme Court unanimously ruled that the Communications Decency Act of 1996, which made it a crime to transmit "indecent" materials on the Internet, violated the First Amendment. Several of the pending bills ignore the central holding of the Court; expression on the Internet is entitled to the highest degree of First Amendment protection. The "Safe Schools Internet Act" (H.R. 3177) would require that all public libraries and schools that receive federal funds for Internet access install blocking software to restrict minors' access to "inappropriate" material. The "Child Online Protection Act" (H.R. 3783) would punish commercial online distributors of material deemed "harmful to minors" with up to six months in jail and a $50,000 fine. Three pending bills (H.R. 774, H.R. 1180 and H.R. 1964) would require Internet access providers to offer customers "screening" software designed to block access to material that might be "unsuitable" or "inappropriate" for children.
We share the concern of the sponsors of these measures that the Internet remain a safe and rewarding medium for young people. However, we strongly believe that these bills embrace approaches -- filtering and criminalization -- that are both constitutionally suspect and ultimately ineffective in providing our children with positive online experiences. As such, we urge the Committee to consider better approaches to this issue, ones that would encourage the development of "Internet drivers' education" programs of the kind being successfully employed in communities throughout the nation. These programs may effectively supplement policies that limit Internet use to educational and curricular purposes. Individual school districts that find them useful currently are free to adopt such educational use policies, even without specific legislation. We note that the "E-Rate Policy and Child Protection Act" (H.R. 3442) would require schools and libraries to adopt policies "with respect to access to material that is inappropriate for children." While the adoption of Internet use policies clearly is a desirable goal, we question whether a federal mandate is the most appropriate means of ensuring that locally designed and community-based Internet education programs become a reality.
Filtering and Screening Requirements
We urge you to consider alternative, educational approaches because we believe that parents and teachers -- not the federal government -- should provide our children with guidance about accessing information on the Internet. Clumsy and ineffective blocking programs are "quick fix" solutions to parental concerns that provide a false sense of security that minors will be protected from all material that parents may find inappropriate. At the same time, filtering software restricts access to valuable, constitutionally protected online speech about topics ranging from safe sex, AIDS, gay and lesbian issues, news articles, and women's rights. Religious groups such as the Society of Friends and the Glide United Methodist Church have been blocked by these imperfect censorship tools, as have policy groups like the American Family Association. This type of arbitrary censorship, when mandated by government in public schools and libraries, is a blatant violation of the First Amendment.
We also question the suggestion that Internet access providers should be required by law to make screening software available to their customers. Given the documented defects and shortcomings of these products, the federal government should not be endorsing them, let alone requiring Internet providers to make them available to subscribers. Filtering and screening programs inherently reflect the judgments, values and biases of their manufacturers. While service providers may certainly choose to make such products available in response to whatever customer demand might exist, we submit that such decisions are best left to the private sector without governmental interference or mandate.
"Child Online Protection Act"
H.R. 3783 should be rejected because it contains many of the unconstitutional provisions of the Communications Decency Act that were unanimously overturned by the Supreme Court in Reno v. ACLU. Like the CDA, the bill would have the effect of criminalizing protected speech among adults. Whatever governmental interest may exist to protect children from harmful materials, that interest does not justify the broad suppression of adult speech. While the bill is ostensibly aimed at "commercial" web sites, that term is so broad that it covers anything from an on-line book seller like Amazon.com to a non-profit website that sells books or T-shirts.
The age verification affirmative defense of the bill -- which precisely duplicates the CDA's defense -- ignores the finding in Reno v. ACLU that there simply is no way to verify age on the Internet. As the Supreme Court noted, the vast majority of websites are not financially or technically capable of requiring a credit card or other form of identification to verify the age of users. The government may not mandate the application of a legal standard to the Internet -- whether it be "indecency" or speech that is "harmful to minors" -- that requires speakers to distinguish between adults and minors when such a distinction cannot be made.
Finally, the "Child Online Protection Act" will not be effective in keeping from minors material that might be inappropriate for them. No criminal provision will be more effective than efforts to educate parents and minors about Internet safety and how to properly use online resources. Moreover, the Internet is a global medium. Despite all the enforcement efforts that might be made, a national censorship law cannot protect children from online content they will always be able to access from foreign sources.
For the foregoing reasons we urge the Committee to oppose any measure that would dilute the potential of this powerful medium. We hope you will agree with our view that community-based educational approaches, as opposed to federally-mandated filtering requirements and new criminal laws, are the best ways to address the issue of how our children use the Internet.
American Booksellers Foundation for Free Expression
Christopher Finan, President
American Civil Liberties Union
Laura W. Murphy, Washington Office Director
American Library Association
Carol C. Henderson, Director, Washington Office
Judith F. Krug, Director, Office for Intellectual Freedom
Association of American Publishers
Allan R. Adler, Vice President for Legal and Governmental Affairs
Computer Professionals for Social Responsibility
Aki Namioka, President
Electronic Frontier Foundation
Barry Steinhardt, President
Electronic Privacy Information Center
David L. Sobel, General Counsel
Feminists for Free Expression
Joan Kennedy Taylor, Vice President
First Amendment Project
Elizabeth Pritzker, Executive Director & Legal Counsel
Freedom to Read Foundation
Candace D. Morgan, President
Gay & Lesbian Alliance Against Defamation
Joan M. Garry, Executive Director
Institute for Global Communications
Marci Lockwood, Executive Director
Internet Content Coalition
Christopher Barr & Dan Farber, Co-chairs
Journalism Education Association
H. L. Hall, President
National Campaign for Freedom of Expression
David Greene, Program Director
National Coalition Against Censorship
Joan Bertin, Executive Director
Audrie Krause, Executive Director
Oregon Coalition for Free Expression
Jenny Crawford, Executive Director
Bennett Haselton, Co-ordinator
PEN American Center
Diana Ayton-Shenker, Director, Freedom-to-Write
People For the American Way
Carole Shields, President
Periodical and Book Association of America
Lee Feltman, General Counsel
Publishers Marketing Association
Lloyd J. Jassin, Legal Counsel
Society of Professional Journalists
Fred Brown, President
Steve Geimann, Immediate Past President
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