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US Interest -- ACLU Memorandum in the CMU case
From: David Farber <farber () central cis upenn edu>
Date: Sun, 13 Nov 1994 07:26:56 -0500
I hope you all excuse the size of this posting. I believe this mkaes a number of points that is broader than just the CMU case. djf MEMORANDUM TO: FACULTY SENATE, CARNEGIE MELLON UNIVERSITY STUDENT COUNCIL, CARNEGIE MELLON UNIVERSITY FROM: VIC WALCZAK, EXECUTIVE DIRECTOR, GREATER PITTSBURGH CHAPTER MARJORIE HEINS, DIRECTOR, ARTS CENSORSHIP PROJECT RE: LEGAL ANALYSIS OF CMU'S POTENTIAL LIABILITY FOR MAINTAINING SEXUALLY EXPLICIT BULLETIN BOARDS THAT CONTAIN OBSCENE MATERIAL. DATE: NOVEMBER 10, 1994 The Americal Civil Liberties Union ("ACLU") [1] has prepared this legal memorandum at the request of numerous CMU faculty and student. Carnegie Mellon University administrators have attempted to justify their decision to censor sexually explicit news groups on the Internet by claiming that a failure to do so leaves them susceptible to criminal prosecution for violationg Pennsylvania's obscenity law. [2] The ACLU's review of relevant constitutional and statutory law leads us to conclude that the University's fears are unfounded. In sum, the assertion that CMU is legally constrained to censor sexually explicit news groups that may contain obscene material is a red herring. The vast majority of expression is protected by the First Amendment to the United States Constitution, and its corollary under the Pennsylvania Constitution, Article I, 7. Art, entertainment, literature and information (graphics and text in contemporary discussion) enjoy constitutional protection. [3] An exception to constitutionally protected speech is obscenity. [4] The requisite analysis is known as the _Miller_ test. [5] Most sexually explicit imagery is constitutionally protected. The United States Supreme Court has recognized that sex is "a great and mysterious motive force in human life, and has indisputably been a subject of absorbing interest to mankind through the ages." [6] Obscenity legally cannot be equated with sexually explicit imagery, nudity or eroticism. Only sexually explicit material satisfying the narrow three-part _Miller_ test can be censored or criminalized. Given the narrow definition of obscenity, it is important to recognize what material is not, and legally cannot be, deemed obscene. Material that provokes "normal, healthy sexual desires" is not obscene and, therefore, is constitutionally protected. [7] Prurience, within the meaning of _miller_, excludes material that "taken as a whole, dos no more than arouse `good, old fashioned, healthy' interest in sex." [8] Material that may be indecent [9] or offensive [10] is also not obscene. As the Court has noted, "[d]issemination of ideas -- no matter how offensive to good taste -- on a ... university campus may not be shut off in the name alone of `conventions of decency.'" [11] Finally, any material with serious literary, artistic, scientific or political value cannot be obscene. Recognizing that only a very small proportion of all expression is unprotected by the Constitution, the University nevertheless seems to believe that it could be prosecuted for violating the obscenity statute by permitting some access to a bulletin board that might later be adjudged to have disseminated obscene material. The University is wrong as a matter of both constitutional and statutory law. Pennsylvania's obscenity law expressly exempts "any library of any school, college or university..." from its reach. [12] The Legislature recognized that universities and libraries have special protections as providers of access to knowledge and that academic freedom and free expression should not be chilled by the specter of criminal or civil prosecution under the obscenity law. While some of the University's connections to the Internet may not be housed in the library building, it is fully entitled to protection offered by the exemption. By providing wide access to the Internet, the University is, in effect, functioning as an electronic librarian. As technology changes the ways in which we store and access information, the digital library of the next century will bear far greater resemblance to the Internet than to today's brick and mortar constructs. Moreover, successful prosecution of any obscenity case requires the government to prove specific intent, i.e., "scienter," (knowledge of what a particular work contained). [13] Pennsylvania obscenity law expressly limits liability to material which is "reasonably susceptible of examination by the defendant." [14] Given the millions of continual postings on the Internet, each and every one of them is not "reasonably susceptible of examination," and CMU could not be adjudged to have the necessary scienter as to any material that might later be found obscene. Certainly, information on safe sex, no matter how graphic, would fit within the protection. What if, however, this analysis is wrong and it is determined ultimately that the statutory exemption for libraries is inapplicable to the Internet and that CMU is otherwise subject to prosecution for not removing the sexually explicit groupings? The University is nevertheless shielded from successful prosecution by principles of constitutional due process. [15] When it is unclear whether a criminal statute applies in a given situation, due process requires that court's construe the law "in favor of life and libery." [16] Application of a penal statute is unconstitutional unless the law is "sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties." [17] The Pennsylvania Legislature has codified, through rules of statutory interpretation, this due process requirement of fair notice. [18] No academy of higher education in Pennsylvania has ever been prosecuted for failing to censor material that might potentially be adjudged obscene on the Internet. To the ACLU's knowledge, no such prosecution has occurred anywhere in the country. When the Pennsylvania Legislature adopted the current obscenity law in 1977, it did not, and could not, have contemplated its application to the Internet. The Internet did not exist. Absent clear legislative intent and prior prosecutions, the due process principle of fair notice affords the Univerisity a large and virtually impregnable shield against any obscenity conviction. [19] Even when the relevant law catches up with contemporary problems posed by new technology, First Amendment jurisprudence suggests that broad immunity will be given to Bboard conduits or distributors, such as CMU. Bboards are akin to a public forum. They may well be the first truly democratic free speech form whereby anyone with a terminal can be heard. Plainly, a public forum proprietor's duties to facilitate censorship-free speech cannot easily coexist with potential liability for the content of that speech. Even without an explicit grant of statutory immunity, proprietors of a public forum, like other distributors of or conduits for speech, cannot be held liable for program content. The University can no more be liable for the content of every Internet communication than it could for the content of every book in its libraries. The Supreme Court has consistently affirmed this fundamental principle. [20] The ACLU has been able to identify only one analogous published decision involving computer bulletin boards. [21] In that case, the federal district court held that a computerized data library that acted as a conduit could not be held liable for including defamatory material. [22] The court's application of First Amendment principles is instructive: CompuServe's CIS product is in essence an electronic, for-profit library that carries a vast number of publications and collects usage and membership fees from its subscribers in return for access to the publications. * * * While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over the publication's contents. This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe. * * * CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so. "First Amendment guarantees have long been recognized as protecting distributors of publications .... Obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of every periodical it distributes. Such a rule would be an impermissible burden on the First Amendment." [23] The court's characterization of CompuServe as a library not only heightens First Amendment protection for CMU, but also lends further credence to the applicability of Pennsylvania's statutory exemption to obscenity for libraries. The University's attempt to justify the censorship similarly cannot be countenanced on the theory that minors must be protected. First of all, minors need not be shielded from all sexually explicit material. Rather, the courts have applied a modified _Miller_ test to determine what is "obscene" as to minors: the material must appeal predominantly to minors' "shameful or morbid" (not healthy) interest in sex, and must lack any serious literary or other value. [24] Although some material on the Internet might meet this standard, the University would not be criminally liable if a seventeen-year-old freshman happened to access it, for the reasons set forth above, i.e., lack of scienter, the statutory library exemption, and the rule that the distributor in the University's position could not be expected to monitor content. Given that most of the people accessing CMU's database are adults, the University should not "reduce the adult population ... to reading only what is fit for children." [25] Just as Pennsylvania law does not obliigate the University library and bookstore, or for that matter literature classes, to purge all sexuallty explicit material because there may be minors on campus or minors may access the imagery, CMU should not do so with the Internet. [26] In conclusion, CMU cannot credibly argue that it is liable to criminal prosecution for maintaining sexually explicit material on computers. The Administration's groundless legal argument should not influence the discussion of CMU's proposed action. The discussion should, properly, focus on whether CMU ought, as a matter of policy, to censor its students' access to ideas and information. Of all places, universities should neither tolerate nor engage in censorship of any views, no matter how offensive or distasteful. As the Supreme Court has stated, universities are "peculiarly the marketplace of ideas," where the values of academic and artistic freedom are paramount. [27] "The essentiality of freedom in the community of American universities is almost self-evident. ... Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die." [28] The ACLU hpoes that this legal analysis is helpful to your discussion. If you have any questions, we would welcome the opportunity to answer them. ENDNOTES 1. The ACLU is a national, non-partisan, non-profit organization dedicated exclusively to the preservation and promotion of civil liberties. The organization nubers 300,000 members, approximately 10,000 of whom reside in Pennsylvania. Many ACLU members serve on CMU's faculty. The ACLU has appeared in hundreds of cases before the United States Supreme Court in both representational and amicus curiae capacities. The ACLU is presently involved in countless civil liberties cases throughout the United States. 2. 18 PA.C.S.A %5903. 3. _Erznoznick v. City of Jacksonville_, 422 U.S. 205 (1975); _Jenkins v. Georgia_, 418 U.S. 153 (1974); _Kingsley Corp. v. Regents of Univ. of N.Y._, 360 U.S. 684 (1959); _Joseph Burstyn, Inc. v. Wilson_, 343 U.S. 495 (1952). 4. _Miller v. California_, 413 U.S. 15 (1973). 5. In order for a work to be judged "obscene," there must be proof of all three of the following factors: 1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2. Measured by contemporary community standards, the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. _Miller v. California_, 413 U.S. 15, 25 (1973). Pennsylvania's obscenity statue tracks, as it must, the _Miller_ test. 18 Pa.C.S.A %5903. 6. _Roth v. United States_, 354 U.S. 476, 487 (1957). 7. _Brockett v. Spokane_, 472 U.S. 491, 496-98 (1985). 8. _Ibid_. 9. _Sable Communications v. FCC_, 492 U.S. 115, 125 (1989). "Indecency" is a term develped in the context of FCC regulation of broadcast radio and television, and has no legal application to computer communications. Indeed, in _Sable_, the Supreme Court held that an attempt by Congress to ban "indecency" from telephone communications violated the First Amendment. 10. "[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. * * * If There is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society find the idea itself offensive or disagreeable." _Simon & Schuster v. New York Crime Victims Bd._, ___ U.S. at ___, 112 S. Ct. 501, 508 (1991) (citations omitted): 11. _Papish v. Board of Curators of the Univ. of Missouri_, 410 U.S. 667, 670 (1973). 12. The exemption, in its entirety, reads as follows: Nothing in this section shall apply to any recognized historical society or museum accorded charitable status by the Federal Government, any county, city borough, township or town library, any public library, any library of any school, college or university or any archive or library under the supervision and control of the Commonwealth or a political subdivision. 18 Pa.C.S.A. %5903 (j). 13. _Smith v. California_, 361 U.S. 147 (1959). 14. 18 Pa.C.S.A %5903 (b) (definition of "Knowing"). 15. U.S. Const. Amend. XIV, %1, Pa. Const. Art. I, %9. 16. _Commonwealth v. Glover_, 156 A.2d 114, 116 (1959) (citation omitted). _See also_, _Rose v. Locke_, 423 U.S. 48, 49 (1975) ("It is settled that the fair warning requirement embodied in the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed."). 17. _Commonwealth v. Heinbaugh_, 354 A.2d 244, 246 (Pa. 1976), _citing Connally v. General Construction Co._, 269 U.S. 385 (1926). 18. The rule of strict construction is codified at 18 Pa.C.S.A %105 (statutes "shall be construed according to the fair import of their terms."). One of the purposes of this rule is to protect the accused from dubious prosecutions. _See e.g._, _Commonwealth v. Hill_, 391 A.2d 1303 (1978). In addition, the rule of lenity establishes that even "when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved." 18 Pa.C.S.A %105. Among those "general purposes" is "to safeguard conduct that is without fault from condemnation as criminal." 18 Pa.C.S.A. %104 (2). 19. The ACLU has used this due process principle successfully to defend pregnant mothers, alleged to have pre-natally transmitted drugs to their fetuses through the umbilical cord, from prosecutions under long-standing controlled substance delivery and chld endangerment laws. The highest court in every state to consider the matter has dismissed such prosecutions precisely because application of the statutes was unclear and unprecedented and, therefore, the proposed application violated due process. In February, 1994, the Pennsylvania Superior Court dismissed such a prosecution, concluding that "it is not reasonable nor appropriate for us to read the three statutes here involved in a way which would, for the first time in this jurisdiction, give recognition to theories of criminal liability not heretofore judicially or statutorily acknowledged." _Commonwealth v. Kemp_, No. 114 Pittsburgh 1993, slip op. at 6 (Pa. Super. February 22, 1994). 20. _Farmers Educational & Cooperative Union v. WDAY, Inc._, 360 U.S. 525, 533-35 (1959) (Broadcasters required to carry candidate statements cannot be liable for the content of those statements); _Smith v. California_, 361 U.S. 147, 152-54 (1959) (book retailers and distributors cannot be held liable for content of books absent scienter; otherwise, self-censorship would impede "distribution of all books, both obscene and not obscene.") _See also_, _Auvil v. CBS 60 Minutes_, 800 F. Supp. 928, 931-32 (E.D. Wash. 1991) (no broadcaster "conduit" liability in abscence of fault); and _Lewis v. Time_, 83 F.R.D 455, 463-464 (E.D. Cal. 1979) (distributor not liable for merely disseminating article). 21. _Cubby, Inc. v. CompuServe, Inc._, 776 F. Supp. 135 (S.D.N.Y 1991). 22. _Ibid_. 23. _Ibid_. at 140. 24. _Erznoznick_, 422 U.S. at 212 n. 10; _Ginsburg v. New York_, 391 U.S. 971 (1968); _American Booksellers Association v. Webb_, 919 F.2d 1493, 1503 (11th Cir. 1990); _American booksellers Association v. Virginia_, 822 F.2d 125, 127 n. 2 (4th Cir. 1989); 18 Pa.C.S.A. %5903 (c)-(e). 25. _Butler v. Michigan_, 352 U.S. 380, 383 (1956). In _Butler_, the Court rejected the State's claim that it may "quarantin[e] the general reading public against books not too rugged fror gown men and women in order to shield juvenile innocence." The Court characterized the State's argument as follows: "Surely, this is to burn the house to roast the pig." _Id._ 26. The ACLU does not address what, if any restrictions the University might arrange for access by high school or younger age students. 27. _Keyishian v. Board of Regents_, 385 U.S. 589, 603 (1967) 28. _Sweezy v. New Hampshire_, 354 U.S. 234, 250 (1957).
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