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Justices Call Criminal Restrictions on Speech "A Repressive Force in the Lives and Thoughts of a Free People"

FOR IMMEDIATE RELEASE

NEW YORK - Recognizing the severe consequences of criminalizing online free speech, the Supreme Court today upheld a ban on yet another government attempt to censor the Internet, saying that content-based prohibitions of speech "have the constant potential to be a repressive force in the lives and thoughts of a free people."

At issue was the Child Online Protection Act, which imposed draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged "harmful to minors."

"Today’s ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults," said ACLU Associate Legal Director Ann Beeson, who argued the case before the Justices last March and earlier in 2001.

"By preventing Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time."

The speech that was criminalized under the law included sexual advice and education, web-based chat rooms and discussion boards involving sexual topics, and websites for bookstores, art galleries and the news media.

The Court first blocked enforcement of the Child Online Protection Act in 2001 in response to an ACLU challenge, but sent the case back for further review. Today’s 5-4 ruling affirms a second appeals court decision rejecting the law.

In ruling against the law today, the Court noted that there are a number of less restrictive methods that are "likely more effective" than the law in protecting minors without affecting adults.

Internet filters "impose selective restrictions on speech at the receiving end, not universal restrictions at the source," Justice Anthony Kennedy said in his majority opinion. "Above all," he wrote, "promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."

That conclusion came as a great relief to the ACLU’s clients, including Dr. Mitch Tepper, whose website, http://www.sexualhealth.com, provides sex information for people with disabilities, including articles such as "Sex Toys and Where to Purchase Them," and "Hands-Free Whoopie."

"I am relieved that I no longer have to worry that Attorney General Ashcroft may come knocking at my door because someone may consider my website ‘harmful to minors,’" Dr. Tepper said. "This law restricted words as well as images, and it included websites like mine that provide sexual advice and education."

As a result of today’s ruling, the government could return to the lower court for a full trial.

"We urge John Ashcroft to stop wasting taxpayer dollars in defending this unconstitutional law," Beeson said. "If he insists on going back to trial, we are confident that the lower court will again find that the law went too far. As the Supreme Court today pointed out, there are even more ways today to protect children online than existed when Congress passed this law," she added.

COPA represents Congress’ second attempt to impose severe criminal and civil sanctions on the display of protected, non-obscene speech on the Internet. A first attempt, the Communications Decency Act of 1996, was declared unconstitutional by all nine justice of the Supreme Court in Reno v. ACLU.

In 2002, the Supreme Court upheld a law requiring public libraries throughout the country to install blocking software on their computers to censor sexually explicit speech as a condition of federal funding.

Briefs supporting the ACLU challenge in Ashcroft v. ACLU (03-218) were filed by a broad range of mainstream media and arts organizations, including the Association of American Publishers, American Society of Newspaper Editors, the Recording Industry Association of America and Volunteer Lawyers for the Arts.

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How do others feel about this? Given the large number of at-server filtered internet services, or client based programs that filter the net like Net Nanny and the like, I feel that the ACLU's take on this subject is correct.
 

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Posted by Scott R (Member # 567) on :
 
From first glance, it looks like the law was too broad to do anyone any good-- here's hoping that the AG goes after porn providers that target/market to children.
 

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Posted by Storm Saxon (Member # 3101) on :
 
Along those lines, I would be willing to machine-gun down the spammers, personally. Porn, viagra,real estate, dating--kill'em all, I says.
 

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Posted by Scott R (Member # 567) on :
 
Gotta catch 'em, says I. . .

Gotta catch 'em all.
 

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Posted by TMedina (Member # 6649) on :
 
Free speech is free speech - either you censor it or you don't.

-Trevor
 

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Posted by Dagonee (Member # 5818) on :
 
So Spammers shouldn't be regulated?

I think the law was too broad, although the makeup of the majority and dissenters makes me think something unusual is going on.

Just more proof that no one can easily sum up Supreme Court justices.

Dagonee
 

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Posted by TMedina (Member # 6649) on :
 
I'm not advocating yea or nay. I'm pointing out that either your regulate free speech or you don't.

You're in law school, yes? Can you define what constitutes "speech?" Or what is protected by and included in "Free Speech?"

A lot of things offend me - but the legal system (as this layman understands it) shifts its interpretation to meet the social standard in which it exists. Nothing is absolutely wrong or absolutely right. Anything can be justified, in the right context.

I will also point out that everything that offends me is not necessarily illegal or immoral - just personal quirks on my part. But that does not mean what offends me should be swept under the rug.

Free speech includes popular and often times annoying communication. If we offer protection to Nazis and hate groups or Al Sharpton and his one-man ego trip, why shouldn't more universally despised minions of evil be included? Telemarketers are evil made manifest upon the Telephone.

-Trevor

Edit: If Speech is, indeed, regulated - it's no longer free speech. The only question becomes - what do we regulate and how do we define it?

[ June 30, 2004, 01:57 PM: Message edited by: TMedina ]
 

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Posted by Frisco (Member # 3765) on :
 
I don't think we have the inalienable right to free speech. Just like any other right, the second it infringes on someone else's rights, it becomes wrong.

I look at unwelcome telemarketing and spam as trespassing.
 

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Posted by TMedina (Member # 6649) on :
 
They really need to add a "quote" feature for specific message.

Anyway, to your point -> what speech doesn't, at some point, intrude? Especially if you don't want to hear it?

Especially in a world of mass media and an "overwhelming sea of information."

-Trevor
 

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Posted by Frisco (Member # 3765) on :
 
It's the difference between someone preaching on the streetcorner and someone yelling through your bedroom window.

I believe privacy to be a basic human right.
 

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Posted by Mabus (Member # 6320) on :
 
I can understand why the court made this ruling, given Net Nanny and so forth, although I'm not confident it's correct.

What gets my goat is the way the ACLU counsel bashed Ashcroft. Maybe it's just a reflex with liberals these days; we all know the man has done some stupid things. But when it's a law about protecting children--even if it's not the best way--you'd think even an ACLU lawyer could get their heads around why it's there, and why someone would defend it.
 

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Posted by Frisco (Member # 3765) on :
 
and there is a quote function. There's a whole list of helpful codes right under the "Add Reply" button.
 

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Posted by Dagonee (Member # 5818) on :
 
If you take the view that any restriction (or penalty) on speech makes free speech fictional, then we've never had free speech and we never will. The clearest examples are libel and slander actions, but there's also the old "Fire" in a crowded theater example. There's also noise and billboard ordinances, as well as conflicts between speech rights and private property. Then there's the denial of benefits based on the content of speech, the most common examples being the ineligibility of religious groups to use certain government facilities in certain ways.

The current rules work by examining laws that burden speech. If the burden is content-based, then the strictist of scrutiny is given unless the content is unprotected. Unprotected speech includes some false statements, pornography and obscenity based on "community standards," speech that creates an imminent danger, threats (when the threatener has the immediate means to carry out the threat), and many others. Commercial speech is in a category that allows greater restriction. Assuming the speech is protected (and the vast majority is), then the government must show a compelling state interest and show that the means are narrowly tailored to meet the ends indicated by that interest. That's why the Court mentions filtering software in their opinion.

There are also acceptable restrictions on the manner of speech, including trespass laws, noise ordinances, and zoning regulations on signs. Here, the state also has to show a compelling state interest, but the interest can be much broader than what's available for content-based restrictions. For example, traffic safety can be used to justify billboard restrictions, peace and quiet can be used to justify megaphone bans, etc.

I think most people agree that some type of content and means restrictions are necessary for a civilized society, but almost nobody agrees about where all the lines should be drawn.

It's certainly defensible to say that having even one of these restrictions means we don't have free speech, but I think it makes the term less useful. Or, it makes us have to make up a new term for what we mean by the constitutional limits of the free speech right as implemented in the U.S.

Dagonee
 

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Posted by TMedina (Member # 6649) on :
 
Right, but using the quote on this forum requires me to copy/paste or retype the post I'm quoting. Sorry, I'm a lazy illegitimate child.

As for the ACLU - they are the liberal extremists. They argue against any infringement, reasonable or not, upon what they perceive as civil liberties. Although I'm not sure they could be counted as "liberal" nearly so much as extremist -> since I imagine they would defend my right to bear arms, if so impeded, as a "civil liberty" just as vigorously as the NRA might.

By defending the extreme, the welfare of the individual will be protected. Not that I agree with the reasoning, but that's how they proceed. It's similar, in many ways, to the concept of vigorous defense -> the case should be so solid that it withstand any attack upon it's merit, which can lead to lawyers presenting twinkie defenses (As this layman understands it).

-Trevor
 

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Posted by pooka (Member # 5003) on :
 
I think that it would have been a problematic law to enforce, given the flexibility of language. Kids shouldn't be surfing the web without some supervision anyway. I do wish I knew how to block a single URL.
 

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Posted by KarlEd (Member # 571) on :
 
Libel and slander laws limit "free" speech, but I don't think that makes society less free. Society, even a "free" one, has to be bound in some form in order to exist, in the same way that a lake must be bound by its shores. If you "liberate" a lake from it's shoreline, you no longer have a lake. If you remove all restriction from a society, you no longer have a society, free or otherwise.

So I think it's pointless to say "either you have free speech or you don't". Most people who debate "free speech" realize that it is a euphemism. We can truthfully say that in this country we have freedom of speech and also recognize that we do not have the right to libel, slander, or scream "FIRE!" in a crowded theater when there is no fire.

[ June 30, 2004, 02:28 PM: Message edited by: KarlEd ]
 

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Posted by TMedina (Member # 6649) on :
 
A font of knowledge as always, Dag.

And far more concisely written than I have managed in three posts.

-Trevor
 

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Posted by Dagonee (Member # 5818) on :
 
Pooka: There's a way to do it in Windows with a host file that basically remaps DNS names (www.hatrack.com, for example) to some other address. But your kids could edit this easily, so it depends on how much you trust them. Someone here can give detailed directions, I'm sure.

There are much better ways to do this, but I haven't looked into any enough to give specific guidance.

Dagonee

[ June 30, 2004, 02:23 PM: Message edited by: Dagonee ]
 

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Posted by TMedina (Member # 6649) on :
 
Well, a more accurate description would be "more freedom than most, but we still gotta have laws, Dog."

Sorry, ebonics slip.

Edit: Pooka - what website? Technical difficulties or just one site you find deeply and personally offensive?

-Trevor

[ June 30, 2004, 02:24 PM: Message edited by: TMedina ]
 

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Posted by Storm Saxon (Member # 3101) on :
 
Pooka, there are many programs that you can download and install on your computer that you can use to block specific sites and sites that have certain words on them. Net Nanny has already been mentioned, but I'm having a hard time remembering others. So, just do a search for a free, downloadable one and you'll be good to go.
 

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Posted by Storm Saxon (Member # 3101) on :
 

quote:

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As for the ACLU - they are the liberal extremists.

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This is one of those times where liberal and conservative are definitely intertwined, as the ACLU has many people in their ranks who are Republican and/or self-identified conservatives. So, I'm not sure this statement is accurate.
 

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Posted by TMedina (Member # 6649) on :
 
Fair enough -> although I do point out the nuance further in my post.

Every time I have heard the ACLU invoked, it has always been on behalf of "liberal" causes, hence the affiliation in my mind.

-Trevor
 

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Posted by Dagonee (Member # 5818) on :
 
On crime (search and seizure, death penalty) and abortion, the ACLU would be considered liberal by almost everyone. On free speech, I think they're both sides would lay claim to their stances. On religion, they're pretty liberal on the establishment clause and conservative on free exercise, except when it conflicts with the establishment. The same goes for speech, as well. In the ACLU's hierarchy of rights, establishment trumps free speech.

I don't know their stance on affirmative action or gun control.

Dagonee
 

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Posted by Rakeesh (Member # 2001) on :
 

quote:

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This is one of those times where liberal and conservative are definitely intertwined, as the ACLU has many people in their ranks who are Republican and/or self-identified conservatives. So, I'm not sure this statement is accurate.

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