Center for Democracy and Technology People for the American Way M E M O R A N D U M To: Interested Parties Re: Constitutional Analysis of "Communications Decency Act" (S.314) From: Center for Democracy and Technology and People for the American Way Date: March 21, 1995 _________________________________________________________________ I. OVERVIEW The Communications Decency Act (S.314) was introduced to promote the laudable purpose of protecting minors from access to controversial and inappropriate sexually explicit material in interactive media including the Internet, other commercial online services, and electronic bulletin board services. However, because the proposed statute is grafted onto a twenty five year old provision of the Communications Act which was designed for a centralized monopoly telephone environment, instead of diverse, decentralized interactive media, it both fails to accomplish its goal and is unconstitutional on its face. Most importantly, the legislation fails to take advantage of the empowering aspects of new interactive media, which can allow parents and other users to exercise control over the information that to which they and their children have access. This memorandum will suggest an alternative means for achieving the purpose outlined by Senator Exon and will show that the proposed Act suffers from the following constitutional infirmities: 1. Overbreadth and Vagueness: The Act criminalizes not only obscene, but also "lewd, lascivious, filthy, or indecent" communications, all of which are protected by the First Amendment and cannot be banned. 2. Impermissible intrusive means of achieving legitimate goal: First Amendment jurisprudence requires that restrictions on speech adopt the "least restrictive means" available for achieving a compelling purpose. Relying on technological assumptions applicable only to 900 number services and a centrally-controlled telephone system, the Act fails to account for the fact that government restriction on content is unnecessary in interactive media, where parents can control the content that their children access. 3. Faulty analogy to broadcast media: Proponents of the Act have justified the constitutionality by improper reliance on content restrictions found acceptable in the broadcast media. These arguments fail to recognize that while broadcast media may "assault" unwilling listeners, who may be in need of government protection, interactive media enables users to control the information that they receive. 4. Invasion of privacy: By criminalizing the content of private, non-obscene messages, the Act would force an invasion of the realm of private electronic communications and end the individual's ability to control the content of information he or she chooses to access in private. 5. Creation of private censors: Holding service providers criminally-liable for the content of all messages that they carry will force providers to become private censors and prescreen all communications traveling across their system. In simple terms, the Communications Decency Act would enshrine in statute a sharp distinction between the print medium and new interactive media. For example, though an individual is allowed to go into a bookstore and buy a sexually-explicit magazine or a "lewd" work of art, one would not be able to access the identical information over the Internet. Both the interactive media and the print media are arenas in which individuals and organizations exercise core First Amendment free speech rights. Before Congress elects to diminish the First Amendment protections available in this new medium, we believe that careful, public consideration is required. Legislating about new interactive media requires a careful understanding of the unique attributes of this new medium. First and foremost, interactive media enable users (including parents) to exercise choice over the information that they and their children have access to. In sharp contrast to older media, government content regulation is simply not necessary in order to shield children from possibly inappropriate information. Furthermore, given the heavily fact-based determination required to justify regulation of indecency, legislative findings based on open hearings and a public record are essential before any legislation could pass constitutional muster. In light of the serious constitutional concerns raised about the Act, and the danger that it poses for the development of a vital new communications medium, we believe that it is essential that the Senate and House hold hearings before taking any further action on this bill. II. GENERAL PROHIBITION AGAINST INDECENT AND OBSCENE COMMUNICATIONS IS UNCONSTITUTIONAL If enacted, Subsection (a) of the Communications Decency Act of 1995, which amends Section 223 of the Communication Act, would violate the First Amendment to the Constitution of the United States because it includes an outright ban on making any "comment, request, suggestion, proposal, image or other communication" by means of a "telecommunications device" if that communication is "obscene, lewd, lascivious, filthy, or indecent." The failure of the statute to distinguish between obscenity and several other categories of speech -- i.e. lewd, lascivious, filthy or indecent -- makes the proposed legislation constitutionally infirm. Sable Communications, Inc. v. FCC 492 U.S. 115 (1989). As articulated below, a total ban on constitutionally protected speech in a media that permits user selection as to that which he or she chooses to receive is unconstitutional. The principle that each person should decide for him or herself the "ideas and beliefs deserving of expression, consideration and adherence" lies at the heart of the First Amendment. Turner Broadcasting v. FCC , 114 U.S. 2445 (1994) This principle has been interpreted to mean that individuals should be able to speak freely and frankly about issues of their choosing, without fear of reprisal because many people may not agree with or appreciate the nature and content of their messages. At the same time, the Supreme Court has recognized that despite this fundamental guarantee, there are certain kinds of speech that fall into a category of unprotected speech -- obscenity is one such category, indecency is not.1 Because of the difficulty is defining obscenity in the context of the First Amendment, it took numerous attempts for the Supreme Court to find five justices to agree on defining principles. 2 Finally, in 1973 the Supreme Court in Miller v. California, 3 established the definition of obscenity and the narrow area of sexually explicit speech that is unprotected by the Constitution.4 Since that time, the definition has not been expanded or changed. By contrast, indecent speech which may include important political views, even if crudely stated, is protected by the First Amendment. As such, government cannot enact a ban on the speech without illustrating a compelling governmental interest, and restricting such speech in the least restrictive manner.5 The ban on indecent communications in subsection (a) of the proposed amendment to Section 223 of the Communications applies to point-to-point communications between users of telecommunications devices. In other words, it applies to each and every one of the millions of messages sent between individuals by way of electronic mail every day over both public and private computer networks. And, it is beyond question that there is no recognized compelling governmental interest in protecting consenting individuals from exchanging "indecent, lewd or lascivious" words. Indeed, we can find no case law in which a federal court has ever enforced even the existing statute regarding telephone communications to cover communications between consenting adults. Courts have analyzed 223(a) only in the context of "harassing" communications which, by their very nature, include a nonconsensual element. Given this fact, there are numerous dangers inherent in expanding the reach of 233(a) to electronic communications where the provision may apply not only to communications between individuals but also to electronic messages appearing on public bulletin boards where individuals convene in virtual communities. Admittedly, it would theoretically be possible for a court simply to attempt to "rewrite" the Communications Decency Act to correct one constitutional infirmity of the bill by reading in a lack of consent requirement. However, even such a rewrite would likely not make 223(a) constitutional as applied to new media and would represent a mistaken and overreaching use of judicial resources particularly when Congress has the power to enact constitutional legislation and is on notice that the existing plain language of Section 223(a) is flawed. III. RESTRICTIONS ON INDECENT COMMUNICATIONS ARE UNCONSTITUTIONAL FOR FAILURE TO ADOPT LEAST RESTRICTIVE MEANS As amended by S.314, ¤223(b) of the Communications Act would extend criminal penalties for all who "make, transmit, or make available," indecent materials which are accessible on a commercial basis to people under age 18. This addition to ¤ 223(b) targets those who provide access to the Internet, commercial online services, and all electronic bulletin board systems. Under this new provision, both the author of the information, and any entity involved in the distribution of the material would be criminally liable. The current statute and associated Federal Communications Commission regulations does provide a safe harbor against prosecution for those providers who either 1) verify in writing through the US Mail that the person requesting the communication is over 18, 2) require payment by credit card for each piece of information accessed, or 3) deliver the information in scrambled form such that it can only be unscrambled with a device made available by providers upon prior age verification. See 47 USC ¤ 223(b) and 47 CFR ¤ 64.201. A key legislative motivation for imposing these rules during the 1980s was that indecent information available through audiotext services in the telephone system were openly available to children in such a way that it was difficult for parents to control access by their children. The views of Congressman Bliley recounts the prevailing view of the need for the legislation: "It constitutes an ATTRACTIVE NUISANCE in every home in America where children are present. There is no completely effective way to prevent children from being exposed to "indecent" or "obscene" dial-a-porn so long as it is lawfully and commercially marketed. . . ." Bliley continues: "Telephones are precisely like radio and television because of their easy accessibility to children and the virtual impossibility for parents to monitor their use . . . . [D]ial-a-porn is presently in the home whether the homeowner wants it or not. Today one cannot have telephone service in the privacy of one's family environment without being required to [have] dial-a-porn with it. Families with children must give up telephone service to be "left alone" from exposure of their children to this intruder."6 The current statute and Federal Communications Commission regulations promulgated thereunder were found constitutional after nearly ten years of litigation and efforts by Congress and the Commission to bring the statute within constitutionally acceptable bounds. Notwithstanding the narrow finding of constitutionality in the case of the current statute, the changes proposed by the Act require a wholesale review of the constitutionality as applied to new, interactive media such as online services and the Internet. Interactive media operates in such a different manner, that the constitutional issues must be considered afresh given the new factual backdrop. We argue here that the current rules, as amended by S.314, would be found unconstitutional in interactive media given the standards set out by the courts reviewing the ¤ 223 rules as they applied to older telephone technology. A. Censorship of indecent, but not obscene, communications for the purpose of protecting minors must employ the least restrictive means available to accomplish their goal Indecent communications are protected by the First Amendment, unlike obscenity which is altogether unprotected. Sable Communications of California v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989). However, indecent communications, which do not rise to the level of obscenity,7 can only be limited in order to serve a compelling state purpose and must be done using the least restrictive means possible. Id. at 125. The Sable court found that the protection of minors from access to indecent material is a compelling state purpose, but that "it is not enough that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id.8 As a threshold matter, the Sable court found that the constitutional basis for upholding indecency regulations in broadcast media articulated in Pacifica Foundation v. FCC, 438 US 726, 98 S.Ct. 3026, 57 L.ED. 2d 1073 (1978), were inapplicable in any other media besides over-the-air broadcasting.9 492 U.S. at 127. Pacifica upheld the FCC content regulation based on the dual finding that 1) radio was a "uniquely pervasive medium"10 that intruded (dirty words and all) into peoples homes, and 2) the only way to protect children from exposure to objectionable content was to keep it off the air altogether.11 Sable rejects this finding of "pervasiveness" as "emphatically narrow" and irrelevant to other media such as telephone audiotext services. 492 U.S. at 127 Thus, the Sable"least restrictive means" standard became the test by which all regulations on access to constitutionally protected indecent material were judged. Nearly ten years of litigation along with adjustment of statute and regulation was required before the current statute was found constitutional under this standard. See Dial Information Services v. Thornburg, 938 F.2d 1535 (2d Cir., 1991)(finding FCC regulations implementing ¤ 223(b) constitutional). During the course of the dispute over the application of ¤ 223 to audiotext services, courts considered and rejected a number of means by which carriers were required to shield minors from access to indecent information. First, time channeling rules, requiring that services only be accessible during hours when children were asleep, were found to violate the First Amendment because they had the effect of denying access to adults as well as children. Carlin Communications v. FCC, 749 F.2d 113, 121 (2d Cir. 1984) (Carlin I). Next, the courts rejected a requirement that carriers provide access to indecent services only once customers entered access codes or passwords, which were to be issued after verification that the customer was over 18. Carlin Communications v. FCC, 787 F.2d 846 (2d Cir. 1986)(Carlin II). The finding of the Dial court, approving the constitutionality of ¤ 223 and associated regulations depended on the legislative determination that the telephone company blocking of service pending age verification or use of a credit card are the only means to enable parents to restrict their children from access to indecent audiotext services.12 B. Means chosen in S.314 of limiting access to online services fail to take into account the fact that interactive media offers parents a much greater degree of control then broadcast services or 900 number services. While S.314 adopts the same goal of protecting minors as the existing statute, the means adopted for achieving the goal are impermissible under the First Amendment because they are not the least restrictive means of accomplishing the legitimate government purpose. Interactive media is materially different than analog telephone and audiotext technology in that is offers users the ability to exercise control over precisely what information one accesses. Given the dramatic difference between telephone technology and interactive services such as the Internet and other online services, we believe that blocking by the carrier as demanded by ¤ 223 and S.314 would not meet the "least restrictive means" test. Just as the Sable court found broadcast indecency regulations inapplicable to the telephone system because of differences in the medium, regulations designed for audiotext services in the telephone system are constitutionally inapplicable to new interactive media. Technologies already exist that enable users to access certain information based on a variety of characteristics, or, to exclude certain types of information from access. With such filtering technology, users, instead of the government or network operators, can exercise control over the information content that they receive in an interactive network environment. User control could be exercised in two ways. First, one could screen out all messages or programs based on information in the header. If a parent wanted to prevent a child from seeing a particular movie or from participating in a particular online discussion group, then the computer or other information appliance used by the child could be set by the parent to screen out the objectionable content. Such features can often be protected with passwords which would be assigned, for example, by the responsible adults in the house. Second, the same systems can be used to enable blocking of content based on third-party rating systems. For example, those parents who accept TV Guide's judgment about the presence of nudity and/or violence in particular programs, could program their interactive TV sets to screen out all programs that TV Guide has classified as violent.13 Given the flexibility of interactive technology, we need not rely on just one rating system. In fact, a single rating system or a single set of filters would merely replace a single government censor with a single private censor, no real gain for the free flow of information. Properly implemented, interactive media can accommodate multiple filtering systems, giving users and parents the opportunity to select and block information based on a true diversity of criteria. The National Parent-Teachers Association or different religious organizations could set up rating systems which would be available on the network to those who desired them. Rather than relying on the judgment of the government, or of the TV network, viewers can limit access to content based on the judgment of a group whose values they share. Interactive media can enable customers (in particular, parents) to prevent themselves or others using their PCs or TVs (in particular, their children) from accessing certain kinds of content. With such control mechanisms within the practical reach of parents the governmental purpose generally cited for indecency regulations -- the protection of children -- could be accomplished without government content restrictions. In particular, the reasoning of Pacifica (intrusion of the indecent message into homes) and Sable (inability of parents to exercise control) would no longer justify most content regulation. IV. Forcing online service providers to become private censors impairs First Amendment values by restricting the free flow of information Making carriers responsible for the content of all information and communication on their systems is a grave policy error which will restrict the free flow of information and is contrary to First Amendment values. If service providers are held liable for all of the content on their networks, then they will be forced to attempt to screen all content before it is allowed to enter the system. In many cases, this would be simply impossible. But even where it is possible, such prescreening can severely limit the diversity and free flow of information in the online world. To be sure, some system operators will want to offer services that prescreen content. However, if all systems were forced to do so, the usefulness of digital media as communication and information dissemination systems would be drastically limited. Where possible, we must avoid legal structures that force those who merely carry messages to screen their content. Relying on user control is a real alternative to the draconian approach now being considered and sure to be proposed again and again. A media environment in which parents -- or anyone else who has particular preferences about the content of information to which he or she is exposed -- would give users the control that courts have determined they lack in the mass media, without involving the government in content control which we believe would not survive appropriate First Amendment scrutiny in this new medium. V. Banning private, sexually-explicit communications violates constitutional privacy rights S.314 seeks to regulate not only information that is made available in public, but also private communications between individuals. The Supreme Court has also made clear that absolute restrictions on indecency or obscenity cannot pass constitutional muster under the Fourteenth Amendment's guarantee of personal privacy. Though the Court has explicitly recognized that what the government may have an interest in protecting in public, Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973) or in a place that caters to the public, Schad v. Mt Ephraim, 452 U.S. 61 (1981); California v.LaRue, 409 U.S. 109 (1972). it does not have a right to ban information maintained in private. Stanley v. Georgia, 394 U.S. 557 (1969). "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Id. at 598. If enacted, S.314, would empower federal authorities to intrude on the private communications and information used by individuals, in clear violation of Stanley. As reflected in passage of the Video Privacy and Library Protection Act of 1988 (protecting records of video rents), and the Electronic Communications Privacy Act (ECPA) of 1986 (18 U.S.C ¤ 2510), Congress has long recognized the privacy interest in information that we read and otherwise use. A number of surveys have confirmed that America's care deeply about their privacy. In a 1983 analysis of their survey results, Louis Harris & Associates concluded: Particularly striking is the pervasiveness of support for tough new ground rules governing computers and other information technology . . . . This support permeates all subgroups in society and represents a mandate for initiatives in public policy. (L. Harris, The Road after 1984: A Nationwide Survey of the Public and its Leader on the New Technology and its Consequences for American Life, December, 1983). The plain meaning of the Communications Decency Act, however, requires that online service providers violate the privacy rights, and statutory protection established by the Electronic Communications Privacy Act in order to assure that criminal violations do not occur. ECPA established that users of online communications systems have a substantial privacy interest in the communications that they transmit over computer networks. ECPA also set out clear conditions under which law enforcement agencies, and, in narrow cases, system operators could access these private communications. The provisions of S.314 would require a dramatic expansion of the access rules established in ECPA. While there may be some justification for regulation of communication and information made public, or made available directly to minors, there must be no intrusion on private or closed group communications unless there is evidence of criminal wrongdoing. VI. Constitutional alternatives to the Communications Decency Act censorship regime Though the Communications Decency Act adopted means that we believe are unconstitutional, the goals espoused by Senator Exon are, indeed, important. Alternative means of achieving the goal of protecting minors from access to material considered inappropriate by their parents would include: * Maximum reliance on technology to empower parents: Interactive media offers parents and other users the ability to filter certain kinds of content. Instead of relying on government censorship, or even government-imposed rating systems, parents should be able to block the delivery of certain information to their children. * Clear protection for constitutionally-permissible speech: Any alternative legislation must provide affirmative protection for constitutionally-permissible speech, even if it is lewd or filthy. Controversial speech must be treated separately than that which is clearly obscene and unprotected. * Emphasis on enforcement of existing statutes: Federal and state law already prohibits transportation of obscenity, child pornography, as well as, in many instances threats, stalking and harassment. To the extent that there are obstacles to enforcing these laws in the new on-line environment, Congress should examine whether new law is required, or whether more resources for enforcement (including training for law enforcement in interactive services and cooperative efforts with the industry). * Codification separately from existing dial-a-porn statute: Modification of the existing ¤ 223, originally written for the analog telephone system, to regulate new interactive media causes unnecessary confusion, both for the treatment of the new technology and with respect to the stability of the regulation of audiotext services. If new law is written, it should stand on its own. Moreover, Congress should consider which elements properly belong in the Communications Act and which in the Criminal Code. The regulation of speech, commerce, and privacy rights in new interactive communications systems raises many difficult issues of public policy and constitutional law. Before proceeding with legislation, Congress must provide the opportunity for public hearings to identify clearly the problems that exist, and to identify solutions that are appropriate to the new technology. Failure to do so will result in ineffective policy, years of constitutional litigation, and a disastrous chilling effect on the development and growth of a very promising new communications medium. For more information contact: Center for Democracy and Technology Jerry Berman jberman@cdt.org Daniel Weitzner djw@cdt.org +1.202.637.9800 People for the American Way Leslie Harris laharris@tmn.com Jill Lesser jlessern@reach.com +1.202.467.4999 _________________________________________________________________ 1 In very limited circumstances, the Supreme Court has found indecency to be "unprotected" speech. See Ginsberg v. New York, 390 U. S. 629 (1969)(holding indecency unprotected where distrubted to minors). See the discussion of proposed Section 223(b) below. 2 See, e.g., Roth v. United States, 354 U.S. 476 (1957) and Memoirs v. Massachusetts, 383 U.S. 413 (1966) 3 413 U.S. 15 (1973)(adopting standards that were later rejected by the Supreme Court). 4 The Court in Miller held that the guidelines for determining obscenity are as follows: "(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law; and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value." (citations omitted). 5 Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989). 6 134 Cong. Rec. H1693-4 (daily ed. April 19, 1988)(statement of Rep. Blilely)(emphasis added). 7 Given the national and international reach of new interactive media, determinations of obscenity based on traditional "community standards" doctrine also raises a whole host of questions. 8 See also Carlin Communications v. FCC, 837 F.2d 546, 555 (2nd Cir. 1988). 9 Pacifica upheld a FCC rule which barred the comedian George Carlin and others from repeating the "seven dirty words" in over-the-air radio broadcasts. 10 Id. at 748 11 Id at 749-50. The Pacifica court recognized that the radio station (WBAI in New York City) had actually broadcast a warning as to the possibly objectionable content, but that this warning failed to protect those who tuned in after it was given. Id. at 731. 12 Rep. Blilely asserts as much in his comments on the legislation. He states, "...It became clear that there was not a technological solution that would adequately and effectively protect our children from the effects of this material. We looked for effective alternatives to a ban -- there were none." 13 Cong. Rec. H1691. 14 Several companies, including the publishers of TV Guide, are developing interactive program guides that incorporate blocking features such as those described here.