ACLU Analysis of Revised Exon

[Dave Farber <farber () central cis upenn edu>]

ACLU Cyber-Liberties Analysis:
Revised Exon Amendment
May 25, 1995
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The American Civil Liberties Union has previously expressed its strong
opposition to the "Communications Decency Act," introduced by Senator Exon
as S. 314 and adopted by the Senate Commerce Committee as an amendment to
the Telecommunications Competition and Deregulation Act of 1995.


Yesterday, we obtained a revised version of the Exon Amendment, which was
apparently written by members of Senator Exon's staff in consultation with
representatives of online service providers, the Department of Justice, and
pro-censorship lobbying groups.  The following analysis presents the ACLU's
objections to the revised draft and clarifies the ACLU's continuing concern
that the Exon amendment, in its existing or revised form, violates both free
speech and privacy rights.


I. Interactive Cyberspace Must Not Be Constricted by Old Media Models


The most fundamental flaw of the revised Exon amendment is that it still
wrongly attempts to force the new interactive environment of cyberspace and
online services into the censorship straitjacket foisted on old media.  In
fact, the Exon amendment even uses as its model the most restrictive of the
old media.


This is wrong-headed policy. It is also a violation of the Free Speech and
Privacy guarantees of the Constitution and therefore unconstitutional.


The Exon amendment would make the interactive environment one of the most
censored segments of communications media when logic dictates that cyberspace,
with its emphasis on user-choice and user-control, should make it the least
censored.  At a minimum, the extremely limited rules of content-regulation for
print media, and the safeguards against censorship for print materials, should
be applied to online communications.  The ACLU, moreover, believes that the
characteristics of cyberspace, including the private and interactive nature of
the communication, dictates that cyberspace should be even more free than
print.


We stress that there is no revision of the Exon amendment -- no tinkering of
its censorship provisions -- that eliminates this problem.  The Exon
amendment cannot be "fixed."  It must be rejected.


II.  The Exon Amendment Would Still Restrict Online Communications to Those
Appropriate for Children


Section (d) of the revised Exon amendment would still unconstitutionally
restrict all online content to that which is suitable for children.


Even under existing case law, non-obscene speech that is deemed "indecent" is
protected by the First Amendment.  _Sable Communications v. FCC_, 492 U.S.
115 (1989).  The Government may only regulate indecent speech if it
establishes a compelling governmental interest in the regulation AND narrowly
tailors the restriction to achieve that interest.  _Id._ at 125.  See also
_Pacifica Foundation v. FCC_, 438 U.S. 726 (1978); _Carlin Communications v.
FCC_, 749 F.2d 113 (2d Cir. 1984) (Carlin I); _Carlin Communications v. FCC_,
787 F.2d 846 (2d Cir. 1986) (Carlin II); _Dial Information Services v.
Thornburg_, 938 F.2d 1535 (2d Cir. 1991).


Indeed, much of what consenting adults prize about some of their personal
communications could well be deemed by outsiders as "indecent" if addressed
to a child.


The revised draft, like the original Exon amendment, is unconstitutional
because requiring users and content providers to reduce their content to what
is suitable for children is not the least restrictive means for protecting
minors from indecent material.  The "justifications" for regulation of
indecency in broadcasting and telephone audiotext services do not apply to
interactive communications, in which users - including parents - have much
more control over the content of the messages they receive.  We are also
prepared to argue that the "justifications" asserted for censorship in any of
the old media, including print, do not apply to cyberspace.


III. Some Specific Problems in the Revised Exon Draft


Again, the ACLU strongly believes that the anti-cyberliberty Exon amendment
cannot be "fixed."  It needs to be defeated.  So, even if all of these
specific problems were solved, the Exon amendment would still be a terrible
idea.  Still, it may be useful to consider briefly some of the specific
problems in the revised Exon draft.


     *Revised section (d) outlaws the online transmission of obscene
materials without defining "obscenity."  Using the test for obscenity
articulated in Miller v. California, 413 U.S. 1 (1973), the federal
government has chosen to stage prosecutions of online obscenity cases in
conservative jurisdictions in order to take advantage of more restrictive
"community standards."  See Thomas v. United States, U.S. Court of Appeals
for the Sixth Circuit, No. 94-6648 and No. 94-6649.  This trend poses a
severe threat that online users and providers will be forced to reduce
content to that which would be acceptable under the "community standards" of
the most conservative jurisdiction.  The ACLU has filed an amicus brief in
the Thomas case strongly opposing the government's misuse of the censorship
laws.


     *Revised sections (d) and (e) extend liability for transmission of
obscene or indecent communications to non-commercial in addition to
commercial providers.  This change would render the revised draft more
restrictive of free speech than the original Exon amendment.


     *While revised section (f) provides some defenses for online service
providers, these defenses place smaller system operators at risk because they
cannot afford to assert the defenses in court.  Moreover, the defenses are
incomplete and many larger service providers would likely find themselves in
jeopardy at the hands of prosecutors motivated by the political advantages of
currying favor with certain pro-censorship groups.


     *Revised section (f)(2) fails to protect providers who cede editorial
control to an entity "which the defendant knows or had reason to know intends
to engage in conduct that is likely to violate this section."  This could
pose serious problems for Internet providers that may have "reason to know"
that certain sites are likely to contain communications deemed to be obscene
or indecent.


     *Revised section (f)(3) gives the Federal Communications Commission the
power to issue regulations regarding methods in which providers may restrict
access in order to avoid liability. Giving federal regulators the authority
to determine the rules for distributing online content will radically affect
the freedom of cyberspace and will have a severe direct effect and an equally
severe chilling effect on online
speech.


     *Revised section (f)(4) could still make it impossible for users or
content providers to remedy a violation of rights by an online service
provider if the service claimed it was attempting to comply with the Exon
amendment.


Conclusion


The revised Exon draft continues to subject an industry that has blossomed
without government control to an unprecedented amount of interference and
intrusion over content.  It gravely threatens the free flow of information
and the diversity of content transmitted over online networks.


To achieve the liberating potential of the information superhighway, Congress
must ensure that interactive technologies enhance rather than stifle
democratic values.


The American Civil Liberties Union therefore opposes the Exon amendment, both
in its original form and as revised.
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