A JOINT LETTER AGAINST ONLINE CENSORSHIP
November 8, 1995
The Honorable Thomas J. Bliley Jr.
Chairman, Committee on Commerce
United States House of Representatives
Washington, DC 20515
The Honorable Larry Pressler
Re: Parental Empowerment and Free Expression in Cyberspace
Dear Chairmen Bliley and Pressler:
We write on behalf of a diverse coalition of non-profit civil liberties, education, library, cultural, arts, labor and other civic organizations, and commercial producers and distributors of entertainment, information, journalism, and art, to express our strong belief that the Communications Decency Act (CDA) (also known as the "Exon Amendment"), sections 401 to 408 of S. 652, is unconstitutional, unworkable and unwise. We also strongly believe that language added to HR 1555, (section 403) amending the federal criminal code (the "Hyde Amendment") is similarly unacceptable, because it creates new Exon-like speech crimes, including restricting constitutionally protected speech, mandating vicarious liability for on-line service providers and endorsing the violation of privacy rights of individuals.
We urge you to delete from any final telecommunications legislation any provisions imposing a federal regulatory scheme on online content, holding on-line service providers liable for the messages of their customers, censoring online communications in violation of the First Amendment, or encouraging the violation of the privacy online users. The CDA and Hyde Amendment contain an approach and philosophy that almost every member of the House of Representatives has already expressly rejected in their 420-4 vote in favor of the Online Family Empowerment provisions offered as an amendment to HR 1555 (section 104) by Representatives Cox (R-CA) and Wyden (D-OR).
The CDA would impose unenforceable and intrusive government regulation on a newly developing forum for speech and commerce. While failing to accomplish its intended goal of protecting children, it would impose unwisely governmental mandates on content and effectively establish federal standards for parenting in an online world. Similarly, the Hyde Amendment would force on-line service providers to act as censors of constitutionally protected speech and invade the privacy of their users. By creating unconstitutional standards, passage of both the CDA and the Hyde Amendment merely would assure a decade of expensive litigation and the uncertainty that inevitably accompanies such lawsuits.
As the Conference Committee begins to consider the question of content control in the online environment, it must not permit unconstitutional provisions to remain in the bill. The Confereesþ challenge is to avoid interfering with private sector development of effective blocking and screening technologies that empower online users to make personal decisions about content, to preserve the fundamental freedoms of the First Amendment, and to protect each individual's right to keep private communications private.
The undersigned organizations believe that the following principles must be adhered to in any provision that affects the emerging online environment:
The First Amendment Rights of All Americans Must be Preserved.
Any effort to establish federal control over constitutionally protected speech must be opposed outright. There are alternative ways to protect access by children to certain material without infringing on the free speech rights of adults. The Supreme Court has repeatedly ruled that Congress may not impose a blanket ban on constitutionally protected speech. Any general restriction on constitutionally protected content must not only serve a compelling government interest but also must be implemented by the least restrictive means available.
Policies Must Empower Users -- Including Parents -- to Make Personal Decisions About Content.While most Americans agree that certain material is unsuitable for children, there certainly is no consensus about precisely what that material might be. The right to decide what children should see and hear is uniquely personal to the family -- government should have no role in dictating such personal and private matters. Instead, policies should encourage and empower individual parents to make decisions about the kinds of content to which their children should have access.
There Should be No Incentive for Government or Private Industry to Infringe on Privacy Rights by Reading Private E-Mail.Neither online service providers nor federal regulators should be in the business of perusing private e-mail for potentially objectionable content. The privacy rights in e-mail that Congress recognized in its passage of the Electronic Communications Privacy Act should not be undercut through censorship legislation.
The Online World Must Operate Free From Intrusive and Unenforceable Government Content Regulation.Online service providers and other sectors of the communications industry already are taking the initiative to develop technologies to permit users to make choices about the content to which they have access. Governmentally imposed standards and mandates are no substitute for the creativity of the marketplace. Users are demanding technology that will preserve the free flow of information, while simultaneously allowing them to make personal decisions about the content to which they or their children have access.
ConclusionThe undersigned organizations believe that Congress can formulate policies consistent with its deregulatory approach and consistent with the Constitution. We stand ready to work with all members of the Conference Committee to ensure that the above principles are satisfied.
This article was provided by People for the American Way.